MEDICAL MALPRACTICE SYSTEM: CANADA

Canadian physicians, whether in private practice or work for hospitals, are

required to obtain medical liability insurance. Such insurance is available through
the Canadian Medical Protective Association (CMPA). Insurance premiums or
membership fees are based upon the type of work a physician performs and the
region in which he or she practices. The CMPA has published Fee Schedules. Said
fees are not based upon a physicians record and are not increased for a history of
complaints or on account of claims paid.1 (Clarke, 2009) Membership fees paid to
the CMPA 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. The purpose of the
reimbursement program is to encourage physicians to practice in the province and
not to move to another province or the United States where average incomes may
be higher. Critics contend that because the CMPAs fees are not based upon a
physicians record, the system does little to penalize physicians who are found to be
liable for malpractice even on multiple occasions. Physicians who have committed
acts of malpractice may, however, be disciplined by their provincial licensing body.
Discipline can range from suspensions to losses of the privilege to continue
practicing medicine.2
In Canada, one of the deterrents from commencing a lawsuit on medical
malpractice is the requirement of a losing party to pay about two-thirds of a
successful partys legal costs. Since the CMPA often incurs large legal expenses in
defending claims, this is an additional disincentive to persons from bringing an
action for damages. Another feature of Canadian law that tends to discourage
parties from pursuing a lawsuit against physicians for malpractice is that awards for
pain and suffering, which are a major component of personal injury awards in the
United States, are subject to a relatively modest judicially imposed cap in Canada.
The Supreme Court has set out guidelines that effectively limit awards for pain and
suffering in all but exceptional cases. In a series of decisions released in 1978, the
Supreme Court established a limit of Can$100,000 on general damages for nonpecuniary losses such as pain and suffering, loss of amenities and enjoyment of life,
and loss of life expectancy. The court reasoned that no amount of money could ever
truly compensate for the non-pecuniary element of catastrophic injury although it
can provide "solace," not in the sense of sympathy, but rather through "physical
arrangements to make life more endurable" above and beyond those relating
1 Stephen F. Clarke, Medical Malpractice Liability: Canada (2009). Available at:
https://www.loc.gov/law/help/medical-malpractice-liability/canada.php

2 Id.

directly to the injuries.3 (Gilmour, 1994) The Supreme Court did state that there may
be extraordinary circumstances in which this amount could be exceeded, and courts
have allowed the figure to be indexed for inflation so that the current suggested
upper limit on awards for non-pecuniary losses is close to $300,000. Nevertheless,
the flexible cap on non-pecuniary losses is a major disincentive to persons
considering whether they should sue a physician for malpractice and for lawyers to
specialize in or seek out malpractice cases. 4
Punitive damages in tort actions in Canada are relatively rare. The Canadian
Supreme Court has also limited the types of cases in which punitive damages may
be awarded, although it has allowed as much as Can$1 million in punitive damages
in an extraordinary case. A Canadian law firm has summarized the holding in this
leading case concerning punitive damages as follows:
1. Punitive damages are very much the exception rather than the rule;
2. Imposed only if there has been high-handed, malicious, arbitrary or highly
reprehensible misconduct that departs to a marked degree from ordinary
standards of decent behaviour.
3. Where they are awarded, punitive damages should be assessed in an amount
reasonably proportionate to such factors as the harm caused, the degree of
the misconduct, the relative vulnerability of the plaintiff and any advantage
or profit gained by the defendant,
4. Having regard to any other fines or penalties suffered by the defendant for
the misconduct in question.
5. Punitive damages are generally given only where the misconduct would
otherwise be unpunished or where other penalties are or are likely to be
inadequate to achieve the objectives of retribution, deterrence and
denunciation.
6. Their purpose is not to compensate the plaintiff, but
7. to give a defendant his or her just desert (retribution), to deter the defendant
and others from similar misconduct in the future (deterrence), and to mark
the communitys collective condemnation (denunciation) of what has
happened.
3 Joan M. Gilmour, Overview of Medical Malpractice Law in Canada, 3 Annals Health
L. 179 (1994). Available at: http://lawecommons.luc.edu/annals/vol3/iss1/14
4 Stephen F. Clarke, Medical Malpractice Liability: Canada (2009)

8. Punitive damages are awarded only where compensatory damages, which to

some extent are punitive, are insufficient to accomplish these objectives, and
9. They are given an amount that is no greater than necessary to rationally
accomplish their purpose.
10.While normally the state would be the recipient of any fine or penalty for
misconduct, the plaintiff will keep punitive damages as a "windfall" in
addition to compensatory damages.
11.Judges and juries in our system have usually found that moderate awards of
punitive damages, which inevitably carry a stigma in the broader community,
are generally sufficient.5
Many other nations consider the Canadian medical liability system to be a worldclass model and surveys of other jurisdictions reinforce this conclusion. It was noted
that the system works most effectively when there is an appropriate balance
between the three separate but related processes of patient safety, physician
accountability and patient compensation. Nevertheless, the Canadian Medical
Malpractice System have sometimes been criticized as it seems not favorable to
patients who believe to have been injured by medical malpractice by reason that
the awards against physicians have, on a per capita basis, been much less frequent
than in the United States and other countries and that awards have generally been
much smaller for similar injuries. Conversely, the character of the Canadian Medical
Malpractive System of not being favorable to the claiming patients makes it immune
from abuses of patients who maintain adverse and detrimental claims from
physicians. Its rule on bearing ones costs of litigation in the case of the losing party
as well as the limitation on the recoverable damages that can be imposed by the
courts are effective ways that can alleviate the increasing problem of abuses being
experienced by the physicians from the detrimental claims being pursued by the
patients.

Bibliography
Clarke, S. F. (2009, June). Medical Malpractice Liability: Canada. Retrieved December
15, 2016, from The Library of Congress: https://www.loc.gov/law/help/medicalmalpractice-liability/canada.php
Gilmour, J. M. (1994). Overview of Medical Malpractice Law in Canada. Retrieved
December 15, 2016

5 Stephen F. Clarke, Medical Malpractice Liability: Canada (2009)