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Ontario on the hook for ballooning med-mal costs

The rising cost of medical malpractice in Ontario may be an intractable problem that places a heavy burden on taxpayers, Hamilton personal injury lawyer Andrew Spurgeon tells AdvocateDaily.com.

Spurgeon, a partner with Ross & McBride LLP and a Law Society of Ontario bencher, says a report on medical liability prepared by retired Justice Stephen Goudge for Ontario’s Ministry of Health and Long-Term Care shows the court’s medical malpractice caseload has remained remarkably flat over the last 25 years, even as the province’s population grew.

“The real problem here isn’t the cost of the lawyers and the legal process, which has remained pretty constant. It’s the cost of things like future care that are enormous and escalating,” Spurgeon says. “That strikes me as a somewhat intractable problem because ballooning health-care costs are an endemic problem for the entire sector, where they are generally rising at a rate higher than inflation.”

A significant chunk of the report focused on future care costs, with Goudge urging the government to:

  • Provide explicit criteria for determining future care required in medical liability cases
  • Develop multidisciplinary teams of university-based hospital experts able to provide opinions on future care needs in medical liability cases
  • Establish a government entity to hold and administer structured settlement funds in medical liability cases
  • Establish a government entity to provide or purchase future care services in medical liability cases
  • Expand the availability of medical liability cases of the reference procedure under the Rules of Civil Procedure for determining the cost of future care in medical liability cases
  • Increase the availability of community living centres for those injured through medical mistakes 

Spurgeon says many of the proposals remind him of historic changes to Ontario’s auto insurance sector when it moved from a pure tort system to a legislatively altered hybrid administrative law model with prescribed benefits and caps.  

“Goudge is saying that we should restrict costs and develop standardized formats, and hopefully that will reduce the exposure liability that providers have to meet,” Spurgeon says. 

“The downside of that is when you introduce these administrative law models into torts, you just create a new layer of process, which in turn is going to enhance transaction costs because there are more opportunities to fight about stuff and where each case should be classified,” he says.

Spurgeon says new laws and regulations would be needed to enact the recommendations.

“And whenever you create legal fixes, you always get unintended consequences,” he warns. “When you prescribe certain types of benefits and treatments that are compensable or not, people will fight to get into the right categories.”

Goudge’s review was initiated following concerns about the cost of funding for the Canadian Medical Protective Association (CMPA), the non-profit body that provides liability coverage for almost all doctors in the country, according to a National Post story on the report.

Spurgeon explains the province has been picking up the bulk of the association’s tab in defending Ontario doctors since a doctor’s strike in the mid-'80s. But in 2017, Ontario was projected to cover $335 million out of the total $384 million the CMPA charged in membership fees to its doctors, up from just $46 million in 2011, according to a 2016 auditor general report.

The agreement to cover fees was reached to get doctors to end the strike. The rise in fees is dramatic, which is in part why this report was commissioned. 

“When a patient is badly injured and sues a hospital or doctor, they’re going to need additional care which is ultimately going to be paid for by OHIP and the Ministry of Health. But they are also funding the CMPA and the hospital’s liability, so it’s a bit like they’re suing themselves,” Spurgeon says. 

“There is a circularity about the whole process that makes you scratch your head," he says.

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