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Search: Search. The implied potential here is that the number of adverse events in the community [non-acute care] caused by allied health professionals may well dwarf those found in The Canadian Adverse Events Study. Consequently, the professional liability market potential may be far larger than appreciated by the respective allied health professions. Traditionally, when one considers healthcare litigation, physician medical malpractice comes to mind.

And where The Canadian Adverse Events Study suggests approximately , non-fatal preventable "Adverse Events" [annually] and 10, fatal preventable "Adverse Events" [annually] related only to acute hospital-based care, one would presume there is a lot of related litigation. Somewhat surprisingly, the data does not bear out that Canadians are litigious. Nor are any real trends identifiable other than a gradual increase in payouts over the last decade.

It is the organisation in Canada which has been created by an Act of Parliament which typically defends and indemnifies most physicians in litigation and other prescribed matters. Between and , the numbers of new claims issued annually ranged between and new claims against physicians. This seems surprising in view of the numbers of preventable 'Adverse Events'. It would appear that between and interventions per year were required.


The CMPA also provided advice and other services to physicians as part of a negotiated agreement. Those advice related matters now total in excess of 20, consultations per year with CMPA lawyers. The CMPA has a perception in the legal community of not settling claims. That seems to have almost doubled over a 10 year period. Expert and other evidence may be called in both proceedings. However, there are restrictions imposed on disclosure that otherwise might lead to speedy resolution of litigation. The information so gathered or created is not to be disclosed:.

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In Canada, it is recognised that a fetus, even when viable outside the womb [in its last trimester], has no independent rights and cannot be given the protection of the state. In Bovingdon Litigation Guardian of v. Hergott, Carswell 15[] O.

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Justice Feldman of the Ontario Court of Appeal expressly questioned whether a healthcare professional could be sued for damages occurring in utero. A 5 judge panel of the Ontario Court of Appeal laid the matter to rest in Liebig v. The court recognised that there is a duty of care to an unborn child for an in-utero injury caused by a medical professional.

The standard that any professional is held to in a proceeding or a litigation matter is of a reasonable and prudent professional in the circumstances. Normally claims against professionals cannot succeed without expert evidence.


Courts have steadfastly retained for the trier-of-fact the responsibility of determining the standard of care. The standard of care is not to be determined by the experts. See, for example, Crawford Litigation Guardian of v. Penney , Carswell Ont 82 at para. Korn , [] 3 S.

More recently is the matter of Saadati v. Saadati is a motor vehicle injury related case. The claimant was involved in a series of 5 motor vehicle injuries.

At trial, the judge determined that the claimant's injuries were caused as a result of the second accident. This was on the basis of non-expert evidence. Apparently friends and family testified that Saadati's personality changed and worsened. A medically recognized psychiatric condition was not found to exist.


However, the Supreme Court of Canada agreed with the trial judge in determining that it was not necessary for a recognized psychiatric condition to exist in order for a plaintiff to recover damages. The Court disapproved of letting experts determine liability based on a diagnosis. It found that the trial judge's approach was sufficient even though not based on expert opinion. As the Court stated at paragraph 31 in Saadati, " a trier of fact is not concerned with diagnosis, but with symptoms and their effects. In the case with unmeritorious or trivial claims for negligently caused mental injury, robust application of the elements of the cause of action of negligence should also be sufficient to address concerns of indeterminate liability.

In particular, liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework, which focuses on the relationship between the parties Cooper, at para 30 , and the remoteness inquiry, which asks whether the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable.

Saadati, in my view, is a reflection of the court's fatigue in dealing with hired-gun experts and increases the degree of uncertainty in all litigation in Canada. Various models of healthcare have been proposed over time as a means of improving quality of care and healthcare delivery. Fee-for-service payment for physicians is being replaced by a variety of different options.

One model that is obtaining a degree of favour is the team or Collaborative approach, called Collaborative Care. In this model, the physician is one member of the team and the team makes decisions as a group.


This, of course, raises the question of which professional's standard of care is to be used as the yardstick in a legal action? While there is no direct employer-employee relationship with any of the regulated health professionals, the group decision potentially makes the group liable. It appears well-settled law that the "but for" causation test is to be used in Canada; see Clements v.

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Clements , SCC 32 S. It is also well settled that the Doctrine of 'Loss of a Chance' is non-compensable in medical malpractice cases. Causation must be proved on a balance of probabilities; See Cottrelle v. While damages are generally assessed in a similar fashion across Canada, there are some provincial statutory differences that ought to be considered. There are different social supports in different provinces. Those social supports have varying levels of subrogation entitlement. Some community care programs and insurers also have subrogation rights.

OHIP has statutory rights that arise independently from the plaintiff's claim for damages. In other words, in the right type of case, OHIP itself can commence and pursue a medical malpractice claim against the persons it funded. The OHIP program was expanded to cover the supply of pharmaceuticals for those up to age This may mean that OHIP will take a more aggressive line with claims that in the past were abandoned.