Medical Malpractice ‘Crisis’ Down South? Implications for Canada
South of the border, Republicans are once again claiming that medical malpractice lawsuits are to blame for the failures of the American health care system.
George W. Bush called. He wants his talking points back.
As part of their plan to repeal the Affordable Care Act, the presumptive Secretary of Health and Human Services, Rep. Tom Price, and House Speaker Paul Ryan tout tort reform as a remedy. They cite questionable figures from the early 2000s to paint a picture of present day American medical negligence liability in which rising insurance premiums are the fault of litigious patients.
Price recommends medical negligence cases be assessed outside of the traditional court system. Instead administrative health care tribunals would determine fault and damages, which he says is a cost-effective alternative with patients able to proceed to court if they do not care for their offer. Patient safety advocates view this as yet another hurdle to those needing adequate compensation for injuries sustained through no fault of their own.
As did President Bush, Price and Ryan equate physician insurance premiums with the volume of lawsuits and affordable health care with medical liability reform. Both today and fifteen years ago, the myth of malpractice mania is built on the fallacy that you can improve a health system by restricting justice and remedies for injured patients—incentives for reducing errors are not a part of the equation.
Why should this matter to Canadians?
To some degree, the rhetoric will be likely mimicked. During the Bush Administration, its call to put an end to ‘frivolous lawsuits’ gained traction in Canada. Canadian politicians of a similar bent were quick to take up the Republican message.
The Insurance Bureau of Canada orchestrated a public opinion and lobbying campaign against alleged insurance fraudsters, who it said were responsible for rising premiums. The ploy was so successful in Alberta that it led the province’s Conservative government to impose a $4,000 cap on insurance payouts to soft-tissue injury victims.
It was not until 2008 when court documents filed in an Alberta civil suit, obtained by the Edmonton Journal, revealed there was no fraud crisis and the cost of premiums was largely the result of insurance companies fattening their bottomline.
Before the current message from Republicans begins seeping into Canada again, here is a refresher on the current state of affairs in Canada.
While many Americans cannot imagine their tax dollars being used to defend doctors against malpractice claims, this is the Canadian way. Each year provinces subsidize physician liability coverage by the millions and these tax dollars are used against patients seeking recourse for serious injuries sustained by medical malpractice. The result is that injured patients are up against a ‘war chest’ of $3 billion dollars, dedicated to the vigorous defence of physicians.
The United States Library of Congress explains the Canadian system this way:
Membership fees paid to the [Canadian Medical Protective Association] give physicians insurance coverage and a right to representation in medical malpractice lawsuits. However, provincial governments reimburse physicians for at least a portion of their membership fees. These arrangements are not generally made public. However, a recently released Memorandum of Understanding between the Ministry of Health, the Ontario Medical Association, and the CMPA reveals that physicians are currently reimbursed for about 83 percent of their membership fees…Critics contend that because the CMPA’s fees are not based upon a physician’s record, the system does little to penalize physicians who are found to be liable for malpractice even on multiple occasions.
According to the latest annual report of the CMPA, 862 medical negligence lawsuits were commenced across Canada in 2015. In the same year only 4 proceeded to trial resulting in a judgment for the plaintiff—3 in Ontario, 1 in BC. The number of new lawsuits against physicians has declined nationally by approximately 5% over the last ten years. The only region that has experienced an increase in actions is Ontario.
Justice can only be achieved when those with no power are put on equal footing with those who have power. There is already an extraordinary power imbalance against injured patients in Canada. The actual number of malpractice cases that arise countrywide is far greater than the handful that are able to proceed to trial.
“2015 Annual Report“, Canadian Medical Protective Association.
“A Better Way”, Republic healthcare policy paper (see page 47 for tort reform).
“Hot Coffee”, a documentary feature film by Susan Saladoff.
“Medical Malpractice Liability: Canada“, United States Library of Congress.
Geo Boehm, “Debunking Medical Malpractice Myths: Unraveling the False Premises Behind Tort Reform” (2005) Yale Journal of Health Policy, Law, and Ethics, Vol. 5: Iss. 1, Article 9.
Bob Buckley, “Where is this crisis of ‘frivolous’ malpractice lawsuits?”, Chillicothe News (14 January 2017).
Ceci Connolly, “Malpractice Situation Not Dire, Study Finds”, Kaiser Health News for Washington Post (10 March 2005).
Charles Rusnell, 4-part exposé on Alberta’s insurance crisis, Edmonton Journal (2 March 2008).
Chad Terhune, “Top Republicans say there’s a medical malpractice crisis. Experts say there isn’t.”, Washington Post (30 December 2016).