Personal Injury

Medical malpractice suits are complicated: Derfel

By Rob Lamberti, Contributor

A review of how to expedite medical malpractice cases that currently take up to six years to settle is a step in the right direction, says Toronto personal injury lawyer David Derfel.

"There are many reasons for the delay a plaintiff experiences in getting their matter to trial," says Derfel, founder and principal of Derfel Injury Lawyers. "An overhaul of the system may not be possible given the layers and complexities, but that does not mean we cannot try."

Retired Justice Stephen Goudge wrote the report to the Ontario Ministry of Health and Long-Term Care in December 2017 and his recommendations focused on four points in developing a more efficient legal framework.

He suggested a standardized case management protocol to establish timetables for the various stages of litigation, using specialized justices when possible both during pre-trial and trial, fixing trial dates early to focus lawyers' attention, and consideration of an enhanced use of the reference procedure under the Rules of Civil Procedure.

"In conducting this review, I have become even more acutely aware of the human and economic consequences of lengthy delays in the resolution of medical liability cases," Goudge wrote in the report. "I appreciate that the judges and lawyers engaged in these cases have to operate within a civil justice system that is subject to many demands and finite resources. They are clearly doing whatever they can."

During the past quarter-century, a medical malpractice case would take about 40 months to reach a settlement in Ontario, but it's now taking much longer, he says.

"The average duration of cases concluded by settlement appears to have been edging upward over the past few years to the range of 55 to 60 months," Goudge says. "At least for physicians, the average duration of a case that is tried seems to have remained at about 80 months from start to finish."

Derfel says ideas that could speed up the system and get people to reach speedier resolutions is encouraged.

But, he says it's important to remember that preparing for a case, setting dates and moving matters along is a complicated affair. It involves much more than determining when courts are available.

"The fact of the matter is that assigning more judges may not necessarily speed things up," Derfel says.

"First of all, you have to complete examinations for discovery," he says, adding that cases often encompass multiple defendants and defence lawyers.

"It does take some time to gather records and reports, and have experts available for trial," Derfel says.

The bottom line is that preparing a case takes time, he says.

"Also, the CMPA (Canadian Medical Protective Association) often mounts very aggressive defences on behalf of doctors," says Derfel.

"The CMPA is very well funded. It defends individuals, so when a medical practitioner is being sued, the expectation is that it will do everything possible to defend them," he says.

Cases often pit clients with modest means against the CMPA, a not-for-profit, mutual defence association that provides legal and medical resources to doctors. The organization spent more than $87.33 million defending members in civil legal actions in 2016, according to its most recent annual report. It also offered $172 million in compensation to Canadian patients in 2016, according to the report.

"A law firm will usually only consider a case if it involves serious outcomes and a favourable position on negligence as there is great risk to a firm and the client when they take on a case," says Derfel.

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