Every few months, the Canadian media rediscovers an issue that personal injury and medical malpractice lawyers confront daily: the power imbalance between injured patients and healthcare providers or, as one activist put it to CTV News last month, our “rigged system that does more to help doctors than the patients they have harmed.”

A 2004 study by the Canadian Institute for Health Information found that medical errors contributed to between 9,000 and 24,000 deaths in the country. The Canadian Patient Safety Institute estimates that 28,000 people died from safety incidents in acute and home care settings in 2013. Researchers have also determined that roughly half of all medical errors are preventable, including medication errors, infections, and falls. And yet less than a thousand medical malpractice lawsuits were filed in 2018. The reason? Medical malpractice files are notoriously challenging for personal injury lawyers. They are expensive, very time consuming, and aggressively contested by the Canadian Medical Protective Association (CMPA), the organization that provides legal defense to Canadian doctors.

“The CMPA is known to really take a scorched-earth approach,” said Kathleen Finlay, CEO and Founder of the Center for Patient Protection, to CTV News. “They would rather spend millions of dollars to fight something than to settle a legitimate claim, and it’s very hard on families.”

Anne Levac’s case is emblematic of this problem. As CTV reports, Levac sought spinal injection treatment for chronic back pain at Toronto’s Rothbart Centre for Pain Care in 2012. Two weeks later, she was rushed to the hospital in intense discomfort. After several weeks in hospital, she learned that the needles used for her spinal injection had been infected with dangerous bacteria, and that she had sustained permanent nerve damage as a result. She experienced memory loss, incontinence, and reduced motor skills. She had to relearn how to write and has difficulty climbing the stairs of her home. Before her treatment she was an active person, today her husband has to care for her. The injuries have also taken a damaging emotional toll.

“(The doctor) ruined our lives,” Levac told CTV. “My husband is now a caregiver. I was his partner, we shared everything. Now he takes care of me and that makes me feel rotten.”

A Toronto Public Health investigation into Levac’s case confirmed that her injections were infected with staphylococcus aureus bacteria, and a College of Physicians and Surgeons of Ontario committee found her doctor guilty of incompetence. Yet her lawsuit, in which she sought compensation to cover medical expenses, has remained in legal limbo for five years.

Levac is not alone. Across Ontario and around the country, injured patients and the medical malpractice lawyers that represent them are frustrated by this David vs. Goliath system – particularly because Goliath is taxpayer-funded.

“The fact that physician fees for their defense are heavily subsidized by the governments, the provincial governments in Canada is a particularly perverse aspect of medical malpractice in Canada, because ultimately it’s the taxpayer dollars that are going to defend the physicians against the aggrieved patients,” explained Dalhousie associate law professor Elain Gibson in the CTV report. “We really should be striving for a better system so that when people get injured due to medical error they can receive compensation, and not a system in which they have to fight tooth and nail.”

Despite the challenges facing medical malpractice victims, Neinstein Personal Injury Lawyers has secured compensation for many patients. Contact Neinstein today to arrange a free, no-obligation consultation with our team of experienced medical malpractice lawyers to learn how we can help.

Greg Neinstein