Medical malpractice claims are very complex and inherently expensive due to the expert evidence needed to prove negligence against a doctor.
The reason why medical malpractice claims are expensive is because of the expert evidence needed to successfully prove that a doctor’s negligence and the injuries caused by that negligence. In this regard, most medical malpractice claims require numerous medical experts to provide opinions on both issues. As it relates to liability, expert evidence is needed to prove negligence which requires proof that the doctor breached his/her standard of care and that this breach caused the injury. As it relates to quantum, expert evidence is needed in order to prove the injuries, disability and future care costs. Accordingly with most medical malpractice claims, numerous different types of expert doctors are required to provide different opinions within a variety of different specialties. The cost in obtaining numerous different medical legal reports can be staggering. It is not uncommon for disbursements (legal expenses) to be in the six figures.
Aside from the cost of prosecuting medical malpractice claims, another significant reason why medical malpractice claims are difficult is due to the fact that doctors are vigorously defended. Most doctors in British Columbia and in Canada are members of the Canadian Medical Protective Association, known as the CMPA. This is a member funded organization that provides defence for physicians who are sued for medical malpractice. While the CMPA acts like an insurance company which defends doctors against medical malpractice claims, it is self-funded and it is not technically an insurance company. Since the CMPA was incorporated in 1913, it has established a significant defence fund in the billions which it uses to fund legal defence costs.
It is notable that the CMPA’s mandate and mission is to protect the professional integrity of doctors whose reputations are questioned with medical malpractice claims. The CMPA does not settle claims like most insurance companies, like ICBC, are known to do. Instead, the CMPA has earned its reputation to strongly defend claims forcing them to trial and even beyond to the Supreme Court of Canada if deemed necessary. The statistics released by the CMPA indicate that of the cases that do not settle and instead proceed to trial, there is a higher percentage of cases that are dismissed in favour of the doctor as opposed to cases in which the claim is successful in favour of the injured claimant.
While the statistics are largely unknown relating to settlement, the CMPA often will not reach a settlement until there has been full investigation and disclosure of expert opinions and only if there is a clear instance of negligence with no formidable defence to deny the claim.
If a claim does not succeed at trial in that it is dismissed, then the CMPA is not liable for paying for any disbursements as they would if the claim was successful.
In a recent CBC article, the current status of medical malpractice claims in Canada was reported on.
As noted from the above, prosecuting medical malpractice claims on behalf of injured claimants is very risky for various reasons. While a number of personal injury lawyers advertise services in medical malpractice, the fact is that there are very few personal injury lawyers with actual and proven experience. There is inherent value in hiring an experienced medical malpractice lawyer as it can make the difference between a successful and unsuccessful claim.
Holness and Small Law Group has over 20 years of proven experience in handling medical malpractice claims – contact us for further information on your claim.