Whither Medical Malpractice Compensation

In a letter to the CMAJ (Canadian Medical Association Journal) published October 10 2006 John Gray Executive Director and Chief Executive Officer of the CMPA (Canadian Medical Protective Association) in response to a published report of the merits of the New Zealand no fault medical liability system indicates the CMPA’s view that Canada should retain the tort based liabilty system. He states in commenting on the efficacy of the tort system of compensation for injured patients which is aimed largely at seeking restoration or mitigation of the consequences of the adverse event that although some cases progress through to court system, a great many are resolved through settlement, often through alternate means of dispute resolution such as mediation. What is not mentioned is that the great majority of cases are dismissed. Generally speaking these cases are dismissed as they are were either unmeritorious or the plaintiff or injured plaintiff abandoned the action due to lack of resources or evidence. The 2003 statistics show that 814 actions werer dismissed, 448 settled and 125 went to trial of which only 22 resulted in judgments for the plaintiff. The statistics for Ontario where almost half of the cases originate are similar although success in court was even less as only 6 cases were decided in favour of the plaintiff. In light of these statistics it is unlikely that the CMPA will wish to withdraw its support for a tort liabilty system. Indeed any sentiment to the contrary while legislation amending the Courts of Justice Act to provide for the structuring of large future care cost awards in Ontario in medical malpractice actions would have been a disopportune occasion. The issue of tort or no fault compensation appears to be headed for further review by the Health Council of Canada and it will be interesting to observe whether they approach the issue from the perspective of patient safety and accountability only or whether they will also consider the social justice aspect of the inevitable occurrence of medical error.