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April 14, 2008


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John McKiggan


I enjoyed your article. My brother (who now lives in Dallas Texas) and I have lively debates about the merits/drawbacks of the Cdn. vs. U.S. health care systems. I sent him a link to your post.

However, as a Canadian medical malpractice lawyer I wanted to offer some feedback about a few points in your post.

Canadian courts do award compensation for pain and suffering but it is capped at (approximately) $300K.

There are few medical malpractice lawsuits in Canada. However, it has less to do with the fact that Canadians are not as litigious than Americans (although that is true) and more to do with the way medical malpractice claims are defended in Canada.

In the U.S. private med. mal. insurers are "for profit" companies that have to account to their shareholders.

If a US med. mal insurer has a claim that they know they will have to spend $300K to defend but are likely to lose, if they are able to settle for $200K, they will settle because they "save" $100K (plus the cost of defending the claim). Settling saves the company money and means greater profits for shareholders in the long run.

This is not to say that US med. mal. claims are not vigourously defended.But in the end there is a cost-benefit judgement by the insurer.

On the other hand, the Canadian Medical Protective Association is a not for profit "mutual defence fund". Since the CMPA is not concerned about profitablity, it does not care what it spends to defend a claim. For example, the CMPA may spend $300K to defend a claim that is only worth $50K. Economics or cost-benefit isn't a consideration.

The CMPA rarely settles and when it does it is usually only after years of expensive litigation.

Most medical malpractice lawyers in Canada do take cases on contingency. I do not know any that do not.

Victims cannot afford to pay (by the hour) the staggering cost of litigating complex medical malpractice cases. Med mal lawyers also typically carry the cost of the tens of thousands of dollars for expert witnesses that are required in med. mal cases.

Because of the CMPA's "scorched earth" approach to defending claims, legitimate victims of medical malpractice may not be able to find a lawyer to bring their claim.

I have had to turn away victims of what appears to be clear cut medical negligence because if the victim is successful they will "only" get $75K in compensation, but it will cost $150K in legal fees to get it.

According to the statistics in the CMPA's annual reports only 2% of Canadian medical malpractice claims end up with a trial award in favour of the victim!

Doctor's contracts with hospitals typically require the hospital to pay the doctor's CMPA premiums. This money comes out of provincial health care funding. Similarly, if the negligence involves a nurse or other hospital employee, public dollars are used to pay to defend the claim. So ultimately the cost of negligent medical care is paid for by the public.

In other words, the medical malpractice victim's own tax dollars end up subsidizing the cost to defend the negligent doctor that caused their injury.

I have blogged about this problem on my Halifax Personal Injury Lawyer blog.

I look forward to reading more of your posts.


John A. McKiggan
Arnold Pizzo McKiggan

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