CMPA 1997

Counsel for medical malpractice claimants are seeing more successes. The evidence is in.

For the first time, the Association’s Annual Report has been published on the Internet. For medical malpractice lawyers, the four-year statistics make for both required and fascinating reading.

The Canadian Medical Protective Association (CMPA) is a nonprofit, mutual defence association of physicians. Its contract with clients - virtually every physician practising in Canada - is for unlimited indemnification, with few exclusions.

Practice Point

The CMPA is primarily concerned with defending reputations and preventing precedents: it has the resources to ignore short term economic expediency

The CMPA vigorously defends every action that is in any way defensible, irrespective of short term economic expediency.The plaintiff can and must make an individual cost-benefit analysis. By contrast, the CMPA will, and often does, spend far more than the case is worth just to avoid setting potentially expensive precedents.

Practice Point

10% annual growth in malpractice litigation has now reached a plateau of 1400 new cases a year

Practice Point

Some meritorious cases are lost because of gross underfinancing

Canadian medical malpractice activity grew steadily from 1980 for 15 years, latterly averaging 10% a year. In he last two years, numbers of new claims have, according to the CMPA ¹ remained steady at 1995 levels -nationally about 5 per working day. By contrast, numbers of settlements have continued to grow by 10% per year, and are now at 30% as a proportion of new actions. The absolute numbers of settlements have increased by 45% since 1994.

Practice Point

95% of plaintiff successes are achieved by settlement - in 30% of claims filed

Trial is a different story. While the proportion of filed actions resulting in a judgment for the plaintiff has remained constant at 15 per thousand, the overall probability of success at trial has fallen. 4 years ago the likelihood was rather less than 1 in 3. In 1997 it was 1 in 5.

Put another way, 19 out of every 20 plaintiff successes are settlements not judgments.

Practice Point

Defendant physicians now win 4 out of every 5 trials

The message is clear. Canadian medical malpractice litigation strategy should be directed primarily at achieving an equitable settlement. When the CMPA defence team is confident enough to push the case through trial, they are in error only once in every 5 cases.

For the average case which goes to trial, the CMPA invests $100,000 in disbursements. The plaintiff cost of losing at trial can be formidable. Few plaintiffs can afford to match this defence expenditure.

Unfortunately not a few potentially successful cases have been therefore lost at trial because of a plaintiff inability to match the quantity, diversity and quality of defence expert witnesses.

Plaintiff medical experts have by default been exposed to gruelling cross-examination outside their areas of special expertise. This is a formula for expert witness burn-out, and plaintiff expert witnesses are a scarce and valuable resource.

Practice Point

Critique of defence reports by Evidence Based Medicine may bring about an equitable settlement

The practical implications too are clear. Written defence expert opinion should be systematically and meticulously critiqued by resource experts in legal medicine.

Irrespective of the format, resolution of a medical malpractice claim depends on the weight and quality of conflicting medical expert opinion. Exposing unsupported and insupportable defence declarations will materially strengthen the hand of plaintiff counsel in the poker game of settlement negotiation.

Lawyers are changing. A wind of change is blowing round the slightly open doors of the CMPA committee rooms.
As the Association’s initiative for tort reform CMPA ² gains momentum, there is less denial that medical negligence exists. Some individual defence counsel may remain intransigent, but others are perceptibly more ready to acknowledge and negotiate.

Practice Point

The new millenium will favour cooperative adversaries and medical consensus

Physicians are changing. Many medical experts on both sides are moving slowly and reluctantly from the era of Authoritarian Medicine to the Evidence Based Medicine of the 1990s.

Any individual physician’s personal professional experience is inevitably a distortion of the global wisdom contained in the cumulative clinical research literature. Increasingly, medical malpractice claims will and must be resolved by application of a consensus of quality clinical research.

Practice Point

An initial profile of medical viability is crucial for malpractice litigation success

Coming full circle, a master skill of medical malpractice litigation success is to identify fatal flaws and reject early the vast majority of enquiries.

Perhaps because early limitation periods preclude adequate preparation, most claims which are filed are not viable from a medical perspective: two-thirds will and should be abandoned after secondary medical screening. To conserve time and money, such review should be undertaken before Examinations for Discovery and expert opinion.

All but 5% of the remainder will be won by settlement, not at trial.