There is no question among medical malpractice lawyers that injured patients face an uphill battle for compensation. We have discussed several issues contributing to this problem on this blog, including the extremely high standard of proof that plaintiffs must establish and the aggressive defence tactics of the Canadian Medical Protective Association (CMPA).

One issue we haven’t looked at is the bifurcated system that plaintiffs must follow when they file claims. Under Canadian law, victims of medical malpractice must name individual doctors and healthcare providers separately from the hospital where the injury took place and its employees. The plaintiff must also prove the liability of each named defendant.

This rule was framed by the 1980 case Yepremian et al. v. Scarborough General Hospital et al., which emphasized that physicians should be considered independent contractors. Under the current system, doctors are represented in malpractice lawsuits by the CMPA, while hospitals and their staff are represented by the Healthcare Insurance Reciprocal of Canada, or a private insurance company.

In an October article from Law Times, Neinstein medical malpractice lawyers Sonia Nijjar and Duncan Embury commented on the challenges posed by this system and offered a potential solution.

‘Enterprise liability’ would hold the hospital where the injury took place responsible for the actions of the doctors practicing there. Not only would this approach reduce the number of defendants a plaintiff must name, it would also reflect a changing treatment environment where medical errors are often the result of team-based failures.

It is “often an artificial exercise to try and parse out individual fault or blame between the individual physician and another person on the health-care team who is largely considered an employee,” Nijjar told Law Times.

The system also makes lawsuits more complex and increases the time plaintiffs must wait for compensation.

“Because of the nature of the system and the separation of identity between doctors and the rest of the health-care team, the process becomes fairly unwieldy,” said Embury, who leads Neinstein’s Medical Malpractice Group. “You’ve got at least two different sets of lawyers on for the defence: one for the hospital, one for the doctors and often at cross-purposes.”

“That system creates an incredible amount of increased work and transactional costs, if for no other reason than … there are two separate sets of lawyers defending the health-care team writ large,” he added. ”It creates inefficiencies. But it does very little and works at cross-purposes to some extent in enhancing patient safety.”

Contact an Experienced Medical Malpractice Lawyer

 If you’ve been injured in a medical setting, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation. Our team of experienced medical malpractice lawyers will explain your legal position and offer advice as you consider a claim.

Greg Neinstein

Greg Neinstein, B.A. LLB., is the Managing Partner at Neinstein Personal Injury Lawyers LLP. His practice focuses on serious injury and complex insurance claims, including motor vehicle accidents, slip and fall injuries, long-term disability claims and insurance claims. Greg has extensive mediation and trial experience and has a reputation among his colleagues as a skillful negotiator.
Greg Neinstein