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Patients’ odds of winning medical malpractice suits in Canada aren’t good, says new book

Detail of the cover of the book After the Error: Speaking Out About Patient Safety to Save Lives.

The chances of a patient winning a medical malpractice lawsuit against a doctor in Canada are slim, according to a new book entitled After the Error: Speaking Out About Patient Safety to Save Lives.

The book, put together by microbiologist Susan McIver and retired nurse Robin Wyndham, contains a collection of stories about patients who said they suffered from medical errors while being treated in the health-care system. Citing various studies, the authors say these mistakes contribute to between 38,000 and 43,000 deaths in Canada each year and many more individuals suffer serious harm.

One chapter, by Halifax lawyer John McKiggan, focuses on the ability of patients to obtain financial compensation through the courts. He writes that every medical error, known as an "adverse event," is a potential malpractice case. Although exact numbers are hard to come by, McKiggan estimates that medical errors could theoretically generate over 100,000 lawsuits every year. Yet relatively few errors result in litigation. From 2005 to 2010, only 4,524 lawsuits were filed against Canadian doctors. During that five-year period, 3,089 claims were dismissed or abandoned "because the court dismissed the claim or the victim or the victim's family quit, ran out of money or died before trial," according to McKiggan.

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And out of 521 cases that went to trial, only 116 led to a judgment that favoured the patient. And the median damage awarded was just $117,000, he noted.

"Of more than 4,000 lawsuits filed against doctors from 2005 to 2010, only 2 per cent resulted in trial verdicts for the victim."

McKiggan points out that most doctors are defended by the Canadian Medical Protection Association which has about $2.7-billion in assets according to its 2010 annual statement. So the CMPA has deep pockets for waging protracted legal battles.

"Many victims of serious medical errors cannot work, or they have huge expenses for ongoing rehabilitation and medical care. Against such overwhelming financial odds, Canadian victims of medical malpractice face huge challenges to obtain just and fair compensation for their injuries," writes McKiggan.

These statistics must make for extremely sobering reading for anyone contemplating a medical-malpractice lawsuit.

Meanwhile, McIver will be speaking on Saturday, April 13, at a patient-safety symposium in Toronto. The event, which is being held at the Ontario Bar Association, 20 Toronto St., will bring together experts on the topic of medical errors and how patients can deal with them. It is open to the public, although space is limited. Visit patientsassociation.ca for details.

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