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Social Justice: Time to consider no-fault medical injury compensation

The Supreme Court of Canada decision in Ediger v. Johnston released this April once again exposes the deficiencies in our medico-legal tort system.

Cassidy Alexis Ediger was born on Jan. 24, 1998, at the Chilliwack General Hospital in British Columbia. The pregnancy was high risk. The obstetrician, Dr. William G. Johnston, decided to induce her birth.

But the induction process didn’t proceed as planned. The mother’s labour stalled with the baby’s head positioned sideways. Johnston decided to proceed with a forceps delivery. Such a delivery was risky because the baby was still at the beginning of the birth canal and her head had to be rotated first.

Johnston failed to inform the mother of the risks inherent in such a delivery and neglected to inquire into or arrange for surgical backup to be available for a potential C-section. As it turned out, the forceps delivery didn’t go smoothly and Johnston decided to proceed with a C-section.

Not having previously made arrangements for the C-section, Johnston left the labour room to obtain an anesthetist to assist with the surgery. Cassidy was ultimately delivered 20 minutes after the failed forceps attempt, but in the meantime an obstruction in the umbilical cord had sparked a drop in her heart rate that in turn caused severe and permanent brain damage.

She can’t speak, requires tube feeding, and uses a wheelchair. Her cognitive functioning may achieve the level of a four- or five-year-old child. She’s totally reliant on others for her daily needs and has a shortened life expectancy.

Medical malpractice lawsuits are notoriously slow and expensive and this case was no different. The trial took place over 22 days in March and April 2008. A decision awarding $3.25 million that concluded the obstetrician was negligent dates back to March 2009.

Johnston appealed the finding of liability as well as the amount of the award. He didn’t challenge the trial judge’s conclusion that he had performed below the standard expected of a reasonably competent obstetrician. Instead, he raised the causation issue as he denied his negligence caused the injuries.

The parties argued the appeal over a two-day period in October 2010 with a judgment released the following May. The British Columbia Court of Appeal allowed the appeal after concluding causation hadn’t been established. In doing so, the appeal court chose not to review the amount of the award.

The unanimous decision of the top court released in April reversed the B.C. appeal decision. It rejected the narrow approach to causation adopted by the B.C. Court of Appeal.

The top court agreed with the trial judge that had Johnston taken proper precautions to have surgical backup immediately available or informed the mother of the high risks of an attempted forceps delivery, the procedure would have taken place in a time frame that would have prevented the brain damage from occurring.

But even after 15 years, the litigation continues. The top court sent the case back to the B.C. Court of Appeal to consider Johnston’s appeal of the quantum of the award, something the B.C. judges could have and should have done previously.

This case displays all that’s wrong with the use of the tort system to resolve medical malpractice cases. Cases take too long. While this case is near the upper limits, many difficult cases take at least five years.

Cases are also too expensive to pursue. While lawyers take on many serious malpractice cases on a contingency basis, there’s no doubt that even relatively simple matters are very expensive to pursue and defend.

From 2007-11, figures released by the Canadian Medical Protective Association noted it paid an average of $166.8 million per year in awards and settlements. But the association also paid out an average of $89.4 million a year in legal costs and expert fees.

For every dollar going to a victim, it paid 53 cents to its lawyers and experts. That’s hardly an efficient use of resources, particularly once we factor in plaintiff’s legal fees and disbursements.

The results of cases are difficult to predict.

There’s much uncertainty and many cases drag on to appeal. This creates additional stress for victims and their families as well as the defendants.  

A fault-based tort system is unfair to plaintiffs who are unable to establish fault or causation, a situation that results in many victims of malpractice receiving no compensation. In addition, the current system discourages the reporting of errors. As a result, many victims aren’t aware of their right to pursue compensation.

Other jurisdictions, including Sweden, France, New Zealand, Norway, and Finland, have forms of no-fault medical injury compensation. It’s time we took a serious look at this option for Canadian jurisdictions.    

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College.  His e-mail address is ashanoff@gmail.com.

  • karen
    'We love the hearings," is the informal model of CMPA counsel, hired by the counsel of the CMPA.
  • Brian
    That middle class and working poor victims of medical negligence unwittingly pay, through provincial taxes, the fees of expensive CMPA lawyers - even as they cannot afford their own lawyer - undermines justice. If doctors paid their own legal frieght - these cases wouldn't involve the dubious tactics the CMPA has become infamous for - and the litigation wouldn't be deliberately protracted for years - even decades - in order to starve victims of negligence and deplete their resources. Can't Ontario's Liberals - winners of the "scandalpalooza" award - find better uses for taxpayer money than to hand it over to CMPA lawyers.
  • karen
    Arguably delays are not caused by the tort system but by foolish provincial funding of medical malpractice insurance for doctors who then retain counsel with the key goal of obtaining as many court appearances as possible. No-fault medical malpractice insurance without provincial insurance reform will merely move the delays to a more relaxed forum, but again, with as many interim trips to court as can be had!
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