Doctors’ association accused of using aggressive “scorched earth” approach to defending malpractice suits

Tom Blackwell , National Post, 13/04/12 Last Updated: 13/04/13 10:59 AM

Susan Ryan didn’t exactly have dollar signs dancing in her eyes when she sued her doctor for malpractice: the Toronto woman filed the case in small-claims court.

She thought it was a less-formal venue that favoured “the little guy;” her opponent had other things in mind. The defence lawyer has fought the suit doggedly, making two pre-trial motions, filing thick binders of material and commissioning reports from a pair of expert witnesses, in answer to her charge that the MD failed to diagnose severe arthritis for eight painful years.

Ms. Ryan, the administrator of a small children’s charity, managed last month to fend off a defence bid to have the suit thrown out of court, but any resolution remains far off.

Susan Ryan

“I hoped they might settle,” she said. “[But] they said explicitly they have no intention of ever settling.”

Ms. Ryan has come face-to-face with a power that virtually every Canadian plaintiff in a malpractice suit encounters, often with sobering results. Like most physicians, the doctor she is suing is represented by the Canadian Medical Protective Association (CMPA), a little-known, non-profit organization with vast funds at its disposal to defend health professionals accused of negligence.

And much of the liability premiums that have helped build up a $2.7-billion war chest come courtesy of Canadian taxpayers, with all but one province subsidizing to varying degrees the fees paid by the group’s members.

Thanks to that financial might and a laser-like focus on members’ interests, malpractice lawyers charge, the association battles most cases unrelentingly, producing what one Ontario judge called a ‘‘scorched–earth’’ approach.

While private, for-profit insurance companies behind other types of civil-law defendants (and doctors in countries like the U.S.) will settle out of court to save the cost of protracted litigation, CMPA-funded legal teams make no such calculation, plaintiff lawyers say.

“If they have a $50,000 claim, they can and will spend $250,000 to defend it,” said John McKiggan, a Halifax malpractice lawyer.

“They’re prepared to leave no stone unturned and to fight these cases to the bitter end,” said Sloan Mandel, a Toronto lawyer. “They really are David-and-Goliath-type battles.”