It’s no secret that Canada’s medical malpractice system is stacked against injured patients. The Canadian Medical Protective Association (CMPA), which provides legal defense for doctors, has a mandate to protect members against claims of malpractice wherever possible, a mandate it pursues aggressively. The organization is also taxpayer funded, meaning injured patients and the medical malpractice lawyers that represent them are contributing to the defendant’s defence.

Recently, the Quebec College of Physicians endorsed an alternative to the current medical malpractice model: no-fault insurance for patients. The concept is not new. In 2015, Dalhousie University law professor Elaine Gibson called for a shift to no-fault insurance following a comprehensive review of Canada’s medical liability system. No-fault programs are currently in place in New Zealand, Wales, and, most notably, Sweden, where 99.9 per cent of malpractice claims are resolved without participation of the courts.

Under a no-fault system, injured patients would seek compensation by submitting a claim to an administrative body rather than by launching a civil lawsuit. They would need only to prove that a medical error caused they injury, and not that a doctor was at fault which, as all medical malpractice lawyers know, is difficult.

Under this set-up, “physicians are no longer in an adversarial relationship with the patient,” Gibson told the Toronto Star in 2015. “They often assist patients in the process because it isn’t going to result in negative ramifications, because there is no finding of fault.”

There are several potential downsides for patients in a no-fault system. Though compensation would be available to more patients, faster, it is possible that individual payouts would be smaller. There are also questions about who is responsible for the payout, and whether compensation would account for mental and emotional damages.

However, most medical malpractice lawyers and healthcare activists seem to agree that a no-fault system would be a step in the right direction, particularly because it would stop patients from paying doctors’ legal fees.

“There’s no-fault compensation with ICBC if you are in a car accident,” said Teri McGrath, a retired nurse from British Columbia who campaigns for a no-fault medical system, to the Aldergrove Star. “It doesn’t matter who caused it. But if you are banged up, you get help. That’s what we are looking for in the Canadian medical system.”

Contact an Experienced Medical Malpractice Lawyer

At Neinstein Personal Injury Lawyers, we represent Ontarians who have been seriously injured by medical errors or omissions. As such, we understand that significant barriers that stand between victims of medical malpractice and compensation to fund their recoveries. No-fault medical liability is one potential remedy to a system that is unfairly stacked against patients.

To learn more about how our medical malpractice lawyers can help, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation.


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Greg Neinstein