The Current

'A real access-to-justice issue': Why lawyers are reluctant to take on medical malpractice suits

A CBC News investigation has examined data going back decades and found that the number of patients who successfully sue doctors over medical mistakes is small — and getting smaller. We ask why it's so hard to sue doctors in Canada, even in cases of patient death.

CBC investigation reveals the dwindling number of patients successfully suing doctors over medical mistakes

A CBC News investigation has found that as the number of doctors increased over the last few decades, the rate of patients suing has dropped. For the cases that do make their way to court, the number of patients who have won has also gone down. (MAD.vertise/Shutterstock)

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The cost of suing a doctor for a medical mistake in Canada is so high that most lawyers won't take the case if "you haven't been harmed enough," says lawyer Paul Harte.

"Most medical malpractice lawyers would not really look at a case that's worth less than $250,000. That's a very significant case; that's a lot of damage," Harte, a medical malpractice lawyer who mostly represents patients, told The Current's Anna Maria Tremonti.

"It's a real access-to-justice issue."

Most doctors in the country belong to an organization called the Canadian Medical Protective Association (CMPA), a group that provides legal defense for doctors who have been sued.

CMPA's vast financial resources allow them to mount an aggressive defence that few patients have the means to compete with, said Harte.

He added that many lawyers are hesitant to take on small cases because they know how costly it can be to go up against a doctor in court.

Paul Harte is a medical malpractice lawyer in Toronto who used to defend doctors and now mostly represents patients. (Craig Chivers/CBC)

CBC News launched an investigation into the difficulty many patients have in suing their doctors, measuring how frequently patients sue and whether they're successful in doing so.

The investigation found that over the last four decades, the number of doctors has increased but the rate of patients suing them has dropped. For the cases that do make their way to court, the number of patients who have won is also down.

"It's not hard to sue, but it is hard to win. And the reality is, because of that ... non-specialized lawyers are reluctant to take on those cases, and people end up not being able to find a lawyer to take the case in the first place," Harte explained.

CBC News sought comment from Health Minister Ginette Petitpas Taylor, but she declined.

"We only take [cases] to trial when we're quite confident that we have a defence for the physician. And that would explain why we have a high success rate," Dr. Douglas Bell, the associate executive director of the CMPA, told CBC News

Dr. Douglas Bell is associate executive director of the Canadian Medical Protective Association (CMPA). (Christian Patry/CBC)

"The Canadian Medical Protective Association is not going to advance an unethical defence. We will only defend the defensible." 

The CBC's investigative correspondent Habiba Nosheen sat down with Tremonti to discuss the investigation and the details they uncovered.

Click 'listen' near the top of this page to hear the full conversation.

With files from CBC News. Interview produced by Elizabeth Hoath, with files from Andrew Culbert and Lori Ward.


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