They cite a number of reports by the Canadian Medical Protective Association (CMPA), the body responsible for defending nearly all physicians in Canada:
- Towards the right balance
- Alternative Patient Compensation Models in Canada
- International medical liability systems — A comparative view
People dispute why there is so little change in our health care tort system.
Some say that it’s because it works so well. Others cite special interests from legal and insurance industries, poor public awareness, and disempowerment of injured parties.
Because the provinces already provide free health care while in the hospital, we already have a partial no fault system under the Canada Health Act. But strain on the public system is passed on to patients, and increasing unemployment rates translates into lack of disability or income replacement benefits.
According to Osgoode professor Joan Gilmour in Patient Safety, Medical Error and Tort Law: An International Comparison, very few cases go to trial, and only a small number of those are successful. The vast majority of claims are dismissed, discontinued or abandoned.
The article claims that a no fault system would compensate more broadly than the current system, but the amounts would be less than successful lawsuits.
Retaining a tort system under no fault could result in a two-tier legal system limited to those who could sue, but it could also ensure that no fault awards were kept reasonably low. Contingency fee arrangements also allow greater access of plaintiffs to the legal system.
Although social justice principles may welcome a no fault system economics may deter it, as the government would be reluctant to foot the cost alongside an existing tort system.
Toronto lawyer Douglas Elliot thinks the political will for change will only come with a big disaster resulting in a large public outcry, as in cases like the tainted blood scandal and the Walkerton tragedy.
Another example is the Supreme Court Case of Lapierre v. A.G, where damages were not awarded for the contraction of acute viral encephalitis from a measles vaccine. But this was followed the next year by amendments to the Quebec Public Health Protection Act, which awarded 20 claimants an average of $135,000 over 15 years.
As a result, Quebec remains the only no fault jurisdiction in Canada. Residents can still sue in tort, but must pay back provincial compensation if successful.
But until such a public outcry, the article argues that we’re likely to be stuck with the current medical malpractice system for some time to come.