When asked which factors set medical negligence litigation apart, Adam Little says the answer is an easy one. This area is defined by the three Cs: the complexity of the medical evidence, the challenging nature of the defence entities, and the competency of the counsel those entities retain.
From the terminology, procedures, and standards of care to the scorched earth approach from the likes of the Canadian Medical Protective Association (CMPA) and the Hospital Insurance Reciprocal of Canada (HIROC), this area of practice is very different from any other personal injury litigation.
“It’s very challenging unless you have a health care background,” says Adam Little, managing partner at Oatley Vigmond LLP and a medical malpractice lawyer who previously defended physicians in medical negligence claims. “The defence is second to none; both the CMPA and HIROC spare no expense and only retain the best and brightest litigation counsel.”
Little knows this from experience because he began his career representing physicians in medical negligence claims. Why he pivoted to plaintiff-side work is another easy answer: it’s always been his passion. Even when he was representing physicians, he was acting for plaintiffs in non-medical cases at a big firm on Bay Street.
When the opportunity to join Oatley Vigmond arose, Little saw a natural fit. He was particularly drawn to the firm's reputation for jury trials and its standard of excellence in plaintiff advocacy. He viewed Oatley Vigmond as the best plaintiff-side firm in the country — and still feels that way 21 years later.
Medical negligence case selection: knowing when to fold them
Through his time on the defence bar, Little learned the fundamental rule that shapes his files to this day — that the CMPA won’t settle defensible cases, ever. He heard time and time again from plaintiff-side counsel that it’s much cheaper to settle the case before trial, but the considerations extend beyond any dollar figure. It’s a physician’s integrity, and by extension the integrity of the medical profession, on the line.
“They’ll spend $100,000 to defend a $10,000 claim if they have to; it doesn’t matter if you’re the best lawyer in the world on the plaintiff’s side, if there’s a hole in your case and it’s exploitable, they won’t pay a dime,” Little says. “Now, when I open a file, I start with the idea that I must prove to the defence that the case is indefensible. If I can’t do that, there’s no prospect of settlement. They just don’t do it.”
Case selection is critical. In Ontario, a viable medical negligence claim generally requires evidence that a healthcare provider breached the applicable standard of care and that the breach caused compensable harm. There are many misconceptions about what a person can sue for in the medical context. The firm fields hundreds and hundreds of calls a year from people who believe they’re victims of medical malpractice; the problem is the healthcare system in Ontario is overburdened. There are too many patients and not enough resources but long wait times in the ER for less serious conditions or a physician’s poor bedside manner are not something to sue for. Near misses aren’t actionable either, which many people don’t understand.
“The reality is 99% of the calls we get, I can immediately say that’s not a cause for litigation,” Little says. No lawyer wants to be four years in with hundreds of thousands of dollars in time and expenses invested and then be told it’s not viable.
“I want to know I don't have a case right at the beginning. Basically, it’s like the Kenny Rogers song — you got to know when to hold them and know when to fold them.”
The McIsaac case: mastering the medical evidence
Once Oatley Vigmond takes on a client, its lawyers live and breathe the case. The all-in approach was built into the structure of the firm from the start, and it’s a throughline today.
“We pull no punches when we’re going to trial; we spare no expense and we leave no stone unturned,” Little sums up. “That's the way Roger and Jim taught us, and Roger literally wrote the book on jury trials in Canada. Frankly, that book — along with the firm’s reputation — were what drew me here.”
There’s one case that illustrates the lengths Little will go for his clients. Jacob McIsaac had a rare metabolic disorder — transcobalamin 2 deficiency — that was negligently untreated as an infant. Initially there were many named defendants, but by the time the case reached trial in 2019, one doctor remained. By that time, McIsaac was 18 years old and severely disabled. Only his parents could understand him, and he would require 24/7 care for the rest of his life.
The McIsaac family were “the nicest people that you could ever know,” Little says, and from the first time he met them, “all I could think was, how can I make sure this case is a winner?”
Little reviewed every single article ever written in medical journals on transcobalamin 2 deficiency, from the 1960s when researchers had only a rough understanding of the condition through to the date of trial.
“Having an encyclopedic knowledge of the topic was key to working up and developing the case,” he says, likening it to a crash course medical school where he became a specialist in the area.
“You must become an expert yourself in the subject matter, if you want to be able to cross-examine experts on the subject matter,” he adds.
Little is admittedly an emotional person. It took many hours of rehearsing his jury opening statement, at home with his wife his only audience, before he could deliver it without breaking down. But his dedication paid off.
The trial settled midway through for a confidential amount, but he’s able to say that it was a positive result — enough to help look after Jacob for the rest of his life.
“I became close to the family and to the facts of the case,” Little reflects. “I was very much consumed for that period of time by advocacy on behalf of the plaintiffs.”
Why defence experience matters in medical negligence litigation
Everything Little does begins with the defence lens, not because he learned it first but because convincing the CMPA that a case is indefensible is the prerequisite for everything that follows.
It’s also why this area cannot be dabbled in. Lawyers without a dedicated practice often misread the CMPA’s posture entirely, assuming large damages will pressure a settlement. “That doesn't fly,” Little stresses, adding that's not the way medical negligence claims in Ontario, or Canada generally, work.
While there aren’t many plaintiff lawyers out there who have also worked for the defence, both lawyers at Oatley Vigmond who specialize in medical malpractice — Little and Troy Lehman — are former CMPA lawyers. Once a case has been proven indefensible and defence counsel receives their marching orders to settle, Little says that shared background earns a degree of respect.
“They know the file has been worked exhaustively, and they know we will take it to trial, so they’re more likely to be fair and reasonable,” Little says. “The key to my success in medical malpractice is being able to see the case from both perspectives.”
This article was produced in partnership with Oatley Vigmond LLP