The evolution of medical malpractice

COVID has not prompted a jump in medical malpractice lawsuits, despite an increase in complaints
The evolution of medical malpractice

There are peaks and valleys in medical malpractice and professional regulation during a pandemic. 

Although lawsuits for malpractice may continue to stay lower than in previous years — although with potentially higher values — more suits could be filed as delays in diagnosis cases go forward. There has also been a reported increase in complaints to regulatory colleges and hospitals. 

COVID-19 has also brought on class actions against long-term-care facilities where residents have become sick or died.  

The silver lining? The pandemic has transformed litigation through its use of technology — and there’s some protection for health-care professionals and organizations through pandemic-oriented legislation. 

Technological changes 

Paul Harte’s practice is predominantly in Ontario but extends nationally. 

“With the ability of virtual platforms, I can serve clients much more effectively and efficiently outside of Ontario,” says the principal of Harte Law PC, a Toronto-area medical malpractice firm. 

“Victims of medical malpractice find it hard to get justice at the best of times, and in smaller communities, it’s hard to get local representation,” says Harte, who practises almost exclusively on the plaintiff side. “Given the changes in the courts’ acceptance of virtual hearings, it’s really opened up other areas of the country to our firm.” 

His firm conducted a mediation in Newfoundland during COVID and three virtual trials. The use of technology has made “an enormous difference,” particularly because medical experts are often required to testify in medical malpractice cases, and it can be challenging to get these busy professionals into court. Now, experts can appear virtually. 

“I had a trial involving an expert in Boston and an expert in the U.K.,” Harte says, “and both of those experts testified virtually, saving a huge amount of time in terms of travel costs but also allowing greater flexibility to accommodate their schedules. That’s been a game-changer, and it’s certainly my hope that the changes that we’ve made in response to the global pandemic will continue after the virus has been brought under control.” 

The advent of virtual hearings has also brought an opportunity for a different and better form of advocacy, he says. Instead of simply talking to a decision-maker in a room, litigators can use visuals in remote presentations. Harte recently made a PowerPoint presentation before an appellate court since sharing a screen is easily done in virtual proceedings. Normally in a courtroom, he says, “you couldn’t bring along a projector and screen; it’s rarely done.” 

The pandemic has accelerated the use of technology, agrees Valerie Prather, co-head of health practice for Bennett Jones LLP. She is based in Calgary and focuses on professional negligence and administrative law.  

“I think that’s going to improve access to justice for everybody” by cutting costs and the time it takes to get a matter to trial or hearing, says Prather. “This is one silver lining: that it’s forced us all to [do] something that might have taken many years to achieve” otherwise. 

Medical malpractice litigation 

In November, the Ontario government passed legislation called Supporting Ontario’s Recovery Act, which offers legal protection to those acting in good faith when implementing public health guidance and any federal, provincial or municipal law in the wake of the COVID-19 pandemic. 

That won’t provide complete protection to health-care professionals and hospitals operating during the pandemic. However, it could mitigate the risks of medical malpractice litigation and formal complaints made to medical colleges and hospitals, says Cindy Clarke of Borden Ladner Gervais LLP in Toronto.  

“Although SORA does not protect against allegations of gross negligence, it does reinforce the point that those acting reasonably ought to be protected,” says Clarke, who is BLG’s national group head, clients, sectors and new services, and defends claims against hospitals and health organizations in her practice. 

While not all Canadian jurisdictions have stand-alone legislation such as Ontario’s, several provinces, including Alberta, are in the process of introducing something similar, she says.  

Also, in response to the pandemic, health-care professionals are required to act reasonably and outside of their defined scope of practice and taking on additional responsibilities, she adds. 

A new regulation under Ontario’s Emergency Management and Civil Protection Act authorizes health-care professionals to provide patient care services outside their regular scope of practice. It enables hospitals to employ, contract, appoint or otherwise engage regulated health professionals from out of province if doing so is necessary to “respond to, prevent or alleviate the effects of the outbreak of” COVID-19. 

“I think time will tell whether that leads to more litigation,” says Clarke, “or whether there’s a broader acceptance that everyone has done everything they can to respond [using] all available resources.” 

For several years before the onset of COVID-19, there were fewer lawsuits. However, the filed ones were potentially high-value lawsuits involving compromised infants and significant neurological injuries.  

“As a result of the pandemic, we may start to see more lawsuits over delay in diagnosis cases,” Prather says, as patients have been delayed in seeing physicians or have engaged with them only virtually. That litigation may extend to delayed surgeries, too. 

Given the extraordinary circumstances of the pandemic, however, Clarke says, “I expect that, in the months ahead, wise plaintiff’s counsel will investigate potential malpractice claims carefully.” She says she hopes they “will appreciate that health-care providers are going above and beyond to deliver the best possible care in truly extraordinary circumstances and that, in the end, we will only see a limited number of malpractice claims arising out of the COVID pandemic.” 

Class actions 

Plaintiffs have filed dozens of legal actions across Canada due to conditions in long-term-care facilities and their responses to the spread of the virus, which left thousands of the elderly dead and others sick.  At least two dozen legal actions have been filed in Ontario alone, including the filing of class action suits, an injunction, a request for criminal investigation and the filing of several statements of claim.  

Whether the class actions can be maintained is not yet clear, says Harte, because of the individuality in the circumstances of the seniors who became ill or died and the requirement for commonality in a class to get certification. 

Professional regulation  

While lawsuits may have flattened in recent years, there’s been a significant increase in complaints to medical colleges and hospitals over the past number of years, says Prather, which COVID has accelerated. And the complaints aren’t just about medical care.  

“We see complaints about communication issues, that [patients] weren’t treated fairly or nicely,” she says. “With that increase in complaints, the colleges and hospitals have a backlog to deal with, and there are a lot of resources required” to resolve complaints in a timely fashion. Hospitals also control doctors’ privileges, which they can withdraw. 

Prather also says professional regulatory complaints may arise from the trend toward providing virtual care. “Whenever you have to transition into using a new type of system,” such as the technologies needed to requisition needed tests, “there are, unfortunately, opportunities for things to fall through the cracks or to be frustrating for people, and that leads to complaints.” 

Accordingly, more privacy issues may arise in the regulatory area, she says, as privacy breaches may be more likely with new technologies.  

Physicians who insist that patients wear masks for in-person visits have also had human rights complaints against them. If there is a medical reason why a patient can’t wear a mask, a physician will grant an exemption. Still, when a patient requests something different than a medical reason, “then the refusal to give the [patient] authorization to not wear a mask can become an issue,” says Prather. 

Increased mobility — and transparency — are two positive developments in professional regulation in the health sciences. Clarke notes health-care professionals’ ability to move interprovincially more quickly, where they’re needed. The mobilization of resources to manage the pandemic is happening across provinces and organizations, with medical staff in less busy hospitals deployed to busier ones, she says.  

That’s “a definite COVID response, and it will be interesting to see if that stays with us” post-pandemic, Clarke says. 

Harte has also noticed a recent trend toward increased transparency in professional regulation. When a doctor is found to have made a major error in judgment or failed to meet a standard of care, the provincial regulatory websites publish those “major misses,” he says.  

“There’s always room for more transparency, but the regulations over time have slowly shifted, and attitudes toward what the public is entitled to know about their doctor, the person they’re entrusting their health and safety to — that has created some improvement.”   

Firm(s)

Bennett Jones LLP Harte Law Professional Corporation Medical Malpractice Lawyers Borden Ladner Gervais LLP (BLG)