Accounting for Law
Civil Litigation, Personal Injury

Med-mal delays exacerbated by shortage of judges

Lengthy delays in medical malpractice cases are unlikely to improve before more judges are appointed to the Ontario Superior Court of Justice, Toronto litigator Richard Shekter tells

The National Post recently wrote about a report by retired judge Stephen Goudge, who found that medical malpractice cases drag on for as many as six years on average. And even those that end up being dismissed can still spend 42 months in the system before they’re thrown out.

“There are legitimate concerns about the length of time that it takes for plaintiffs to receive compensation after a civil claim of medical mistake is made,” Goudge writes. “In conducting this review, I have become even more acutely aware of the human and economic consequences of lengthy delay.”

Shekter, a partner with Shekter Dychtenberg LLP, explains that the complicated nature of med-mal cases means parties should expect a longer process than generally more straightforward motor vehicle personal injury litigation.

“For most motor vehicle cases, liability is almost a foregone conclusion and can be handled in a courtroom in a couple of days,” he says. “In med-mal, you’ve got issues that don’t arise to the same degree in those cases, including causation and whether there was a failure to maintain a standard of care. Damages, of course, are common to both.

“It gets incredibly complex and voluminous in terms of the witnesses, documentation and dollars involved,” Shekter adds.

However, he says the built-in delays associated with med-mal cases have been compounded by the effect of the Supreme Court of Canada’s decision in R v. Jordan, which gave prosecutors hard deadlines for criminal matters to get to trial without risking dismissal for delay. As a result, clearing the backlog of criminal cases has taken precedence over civil matters when it comes to allocation of judges, Shekter says.

“In Toronto and surrounding areas, it’s really difficult to get a lengthy case on the trial list. We’re getting bumped for criminal and family custody cases, both of which take priority,” he says. “We’re creating a system that is very difficult to work under and those of us who practise in the field are incredibly frustrated. You’ve got to have an iron stomach and an iron will to do this work.”

In his report, Goudge recommends the appointment of specialist judges to hear med-mal cases, as well as setting trial dates earlier.

But Shekter fears the problem could get worse before it gets better, due to a shortage of federally appointed judges.

Following the recent dismissal of criminal charges for delay in a major $13-million fraud case, the Peterborough Examiner pointed out that there are currently 16 judicial vacancies on the Ontario Superior Court, with fears it could rise to 28 by September, or almost one-tenth of the court’s entire complement.   

“It’s a nightmare to function under,” Shekter says. “If there aren’t enough judges to service the population, then we’re never going to get anywhere. That’s the first thing that needs to happen.”  

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