The crisis in medical malpractice: will it spread to Canada? By D.A. Geekie* Canada and Canadian physicians have a medical malpractice litigation prob¬ lem. It does not begin to compare with the situation in the United States, but the basic components required for ex-
plosion are present. Improved perform¬ ance by individual physicians, and ac¬ tion by the Canadian Medical Associa¬ tion, provincial medical associations, licensing bodies and government are re¬ quired to avoid further deterioration. In recent months Canadian physi¬ cians have read, with an almost aca¬ demic detachment, medical journal and newspaper reports on the USA medical malpractice insurance fiasco. That an¬ nual malpractice insurance premiums could be an average $4000 and even as high as $35 000, for a few subspecialties in some states, was difficult to believe. But, high premium demands aside, that physicians might be forced to leave practice because there was no malpractice insurance available at any price was unbelievable. The truth is US insurance companies are vacating the field, and malpractice insurance is increasingly hard come by. Canadian physicians have considered the reports gross exaggerations published for poli¬ tical reasons or to reduce much lower, but still too high, premium rates. Many dismissed the situation as another clas¬ sic Yankee foul-up of no relevance to Canadians. In fact, more than 20 states in the US have been forced (on occa¬ sion by physician strikes) to enact emergency legislation to allow medical practice to continue. But as CMA Past President Dr. Bette Stephenson has warned, "the Canadian medical pro¬ fession cannot afford the luxury of smug, chauvinistic, national complacency." A review of a few key statistics from the records of the Canadian Medical
?Mr. Geekie is director of communications for the Canadian Medical Association. Reprints of his article are available from the CMA depart¬ ment of communications, PO Box 86S0, Ottawa K1G 0G8.
Protective Association indicates the severity of the problem and the rate at which it has been growing. The CMPA, a mutual medical defence union, is a
nonprofit professional association, not an insurance company, and represents practically all Canadian physicians in medical malpractice litigation matters.
Formed in 1901, this, the oldest affiliate of the Canadian Medical Associa¬ tion, represents more than 30 000 phy¬ sicians. While a few hundred Canadian physicians also carry commercial mal¬ practice insurance, they are a distinct minority. In 1945, while representing 3367 physicians, CMPA members were involved in nine new legal actions, or one per 374 physicians. There was no appreciable rate change in the number of new legal actions until 1965 (table I). In the 10 years 1965-74 the annual number of new legal actions increased from 49 to 220. The ratio increased from one per 325 physicians to one per 132. The experience of the first half of 1975 indicates the trend is continu¬ ing. During these 6 months, 126 new legal actions were launched against CMPA members compared to 100 in the corresponding period last year. Of equal concern has been the in¬ crease in the amounts of court awards and out-of-court settlements and the rate of this increase. In 1950, CMPA paid an average $2942 on behalf of members to conclude 11 malpractice claims. In 1974, the average amount had risen to $13 386. While the numbers are relatively
small, perhaps
not
statistically signifi¬
cant, and the factors involved are num¬ erous and complex, we draw your at¬ tention to the fluctuating, but distinct, shift in ratio of court awards to out-ofcourt settlements. In 1955, three cases were settled out of court for every one concluded in the courts. In the past 3 years the ratio has approximated 7:1, 16:1 and 6.5:1. The figures are of con¬ siderable import when correlated to the
policy of the CMPA that "unwarranted legal actions, or inflated financial de¬ mands related to cases where a degree of physician responsibility has been conceded, are fought in court". The obvious interpretation is that not only have malpractice legal actions against physicians increased, but warranted, incontestable actions against physicians have increased. However, such figures don't necessarily point to either a de¬ terioration in medical care or an in¬ crease in medical misadventure. Physi¬ cians now annually perform procedures of greater number and complexity and have thus escalated the probability and risk of malpractice litigation. Of equal importance is the fact that
the number of cases dismissed or dis¬ continued (table 2) an indication of unjustified or unwarranted actions launched has also increased. While current annual CMPA mem¬ bership dues at $100 are higher than the $60 (£25) charged for comparable protection in the UK, they are con¬ siderably less than the average $4000 in the US. Recent experience indicates
growing problem. Mindful of the association's increas¬ ing contingent liability (the estimated cost of the matters already in hand but not yet concluded) another 100% increase to $200, to take effect in January 1976 was approved at the association's recent annual meeting in Calgary. Table I clearly indicates the primary factors contributing to the steady increase in annual expenditures: a
an increased number and size of court awards and out-of-court financial set¬ tlements and increases in legal and ad¬
ministrative costs. Increased legal and administrative costs should not be directly or exclusively correlated to the increase or size of legal actions against members. Re¬ cent CMPA annual reports show a marked increase in services provided to members on matters not related to
CMA JOURNAL/AUGUST 23, 1975/VOL. 113 327
actual legal actions. In contrast to commercial insurance companies, CMPA does not prorate membership dues to experience, geo¬ graphic area, or type of practice or specialty, for CMPA is not an insur¬ ance company. All CMPA members
general practitioners, orthopedic and plastic surgeons, anesthetists, residents or those engaged in research or admin¬ istration pay the same amount an¬ nually. The profession shares the risk of all its component parts; physicians practising low-risk specialties, such as administration or research, are not singled out for lower premiums, as they are in the United States. Neither are physicians exposed to higher costs, as are anesthetists, orthopedic and plastic surgeons covered by geographic- and experience-rated commercial insurance. In a similar vein, members' dues do not increase as the result of bad personal experience. As long as a physician re¬ mains a CMPA member, he is eligible for the full services of the association. It is interesting that a sizable propor¬ tion of legal actions for medical mal¬ practice is not related to surgical or anesthetic mishaps. During 1974, of 220 legal actions against members, 91 had no relationship to surgery or an¬ esthesia. Another major difference between the CMPA and commercial insurance companies is CMPA does not draw up a formal insurance contract with mem¬ bers. Indeed, several physicians have voiced concern with the lack of a formal, legal guarantee that the CMPA
will defend them and pay awards or out-of-court settlements. Unquestion¬ ably, this fact has permitted CMPA to take a much tougher stance in mal¬ with both those practice litigation launching actions and its members. There is understandable pressure from members to settle unjustified or questionable actions out of court or to grant inordinate out-of-court settlements to avoid for the member expensive, timeconsuming, reputation-damaging and embarrassing court appearances and publicity. In the long term such pres¬ sure is imprudent. Where commercial insurance companies are involved, the company tends to accede and to grant the wishes of the client by settling out of court. The increased costs are simply reflected in higher premiums the fol¬ lowing year. More damaging in the long term, such accession encourages increased litigation by allowing rel¬ atively easy, successful legal action. CMPA attempts, where there is acknowledged physician fault, to realize a fair out-of-court compensation settle¬ ment, but where disagreement exists re¬ garding the extent of physician fault or where the demanded settlement is excessive, the association resists the pressure for out-of-court settlements and dictates that the matter be taken to court. Notwithstanding the absence of a contract, in its 74-year history the association has never failed to defend a member, to pay the court award or to pay what the CMPA considers an appropriate out-of-court settlement. While there is reason for concern
Table I.CMPA receipts, actions and expenditures
,.^m^m^mi;^,..
w_
Source.Canadian Medical Protective Association
about financial implications of in¬ creased court awards and out-of-court settlements, Canadian experience does not compare with that of US physi¬ cians. Settlements in the US are fre¬ quently in the six-figure bracket, and awards in excess of $1000 000 grow increasingly common. (For more de¬ tails on the US problem, see the fol¬ lowing article.) While the CMPA does not divulge the size of out-of-court settlements, the highest court award on record in Canada for medical malprac¬ tice is $170 000. One of the major reasons for this US-Canada differential rests on our judicial systems. In the US, most litigation is tried before a jury, and, most important, where the defendant physician is found at fault, the size of the court award is deter¬ mined by the jury. In Canada, almost all cases are tried before a judge, al¬ though the plaintiff may apply to have his case tried before a jury. Thus when the defendant Canadian physician is found at fault the award and its amount are determined by a judge not a jury. A jury would have less experi¬ ence and knowledge in such matters and be more prone to grant large awards on emotional grounds. Several factors underlie the increase in Canadian court awards inflation, longer life expectancy and the in¬ creased number and frequency of phy¬ sicians conducting sophisticated accident-prone, high litigation risk proce¬ dures. The effect of Canada's inflation speaks for itself. Based on the 1961 dollar, our rate of inflation from that time to the end of 1974 has averaged more than a compounding 4%. In 1972 it was 4.8%; in 1973, 7.3%, and in 1974 a whopping 12%. Current es¬ timates predict a 10% inflation rate in 1975, and, when it comes to medical .
l!§||§|
illflf llllif lilllll llliflii ||ijj|||.
malpractice
court
awards, anticipated
inflation rates are significant. Since the courts grant awards on a one-time-only basis, they are obligated to take into account the anticipated decrease in the purchasing power of the Canadian dol¬ lar. For example, a court which grants an award to a 20-year-old paraplegic or human vegetable plaintiff the re¬ sult of a shower of emboli subsequent .
JBffffraS^^^
*6 months only Source.Canadian Medical Protective Association
328 CMA JOURNAL/AUGUST 23, 1975/VOL. 113
to
faulty arteriography
.
must ensure
Garamycin* Injectable IM/IV gentamicin sulphate U.S.
GARAMYCIN Injectable (40 mg (base)/ml) SCHERING GARAMYCIN Pediatric Injectable (10 mg (base)/ml) INDICATIONS: GARAMYCIN is indicated in the treatment of serious infections caused by proven susceptible organisms. In suspected or documented gram-negative septicemia, particularly when shock or hypotension are present, GARAMYCIN should be considered for initial antimicrobial therapy. In staphylococcal infections, GARAMYCIN should be considered when conventional antimicrobial therapy is inappropriate or when susceptibility testing and clinical judgment indicate its use. ADMINISTRATION AND DOSAGE: INTRAMUSCULAR/INTRAVENOUSff ADMINISTRATION A. Urinary Tract Infections The usual dosage in lower urinary tract infections is 0,8-1,2 mg/kg/day in two or three equally divided doses for seven to ten days. For increased antibacterial activity it may be advantageous to alkalinize the urine. Infections of the upper urinary tract, such as pyelonephritis, should be treated according to one of the schedules for systemic infections. B. Systemic Infections-Normal Renal Function The treatment of systemic infections in patients with normal renal function requires a dosage of 3 mg/kg/day in three equally divided doses. A course of seven to ten days of treatment will usually clear an infection due to a susceptible organism. In patients with life-threatening infections, dosages up to S mg/kg/day should be administered in three or four equally divided doses. This dosage should be reduced to 3 mg/kg/day as soon as clinically indicated. C. Patients with Impaired Renal Function In patients with diminished renal function or those undergoing intermittant hemodialysis, the dosage has to be adjusted depending on the degree of renal impairment. For detailed information consult the product monograph or the Schering Representative. flINTRA VENOUS ADMINISTRATION: The usual effective dosage of GARAMYCIN Injectable administered intravenously is 3 mg/kg/day in three equally divided doses. For intravenous administration, a single dose (1 mg/kg) of GARAMYCIN Injectable is diluted in 100-200 ml of sterile normal saline or 5% dextrose. The solution is infused over a period of one to two hours and repeated two to three times a day. The usual duration of treatment is seven to ten days. PRECAUTIONS: Ototoxicity: Gentamicin, like other aminoglycosides, has produced ototoxicity in experimental animals and man. It is manifested by damage to vestibular function and may be delayed in onset. Damage has occurred in patients who were uremic, had renal dysfunction, had prior therapy with ototoxic drugs or received higher doses or longer therapy than those recommended. The concomitant use of ethacrynic acid and furosemide should be avoided. The physician should strongly consider discontinuing the drug if the patient complains of tinnitus, dizziness or loss of hearing. Serum GARAMYCIN levels in excess of 12 .g/ml should be avoided. Nephrotoxicity: Nephrotoxicity manifested by an elevated BUN or serum creatinine level or a decrease in the creatinine clearance has been reported with GARAMYCIN. In most cases these changes have been reversible. Neuromuscular Blocking Action: Neuromuscular blockage and respiratory paralysis have been reported in animals. The possibility of this occurring in man should be kept in mind particularly in those patients receiving neuromuscular blocking agents. ADVERSE REACTIONS: Among other adverse reactions reported infrequently and possibly related to GARAMYCIN are elevated SGOT, increased serum bllirubin, granulocytopenia and urticaria. Reactions reported rarely and possibly related to GARAMYCIN include drug fever, hypotension, hypertension, itching, hepatomegaly and splenomegaly. OVERDOSAGE: Peritoneal or hemodialysis will aid in the removal of GARAMYCIN from the blood. SUPPLIED: Each ml of aqueous parenteral sblution at pH 4.5 contains: 40 mg or 10 mg (pediatric) of gentamicin base. Preservatives, methylparaben U.S.P., propylparaben U.S.P., sodium bisulfite U.S.P., disodium edetate U.S.P. Available in 2 ml multiple-dose vials and 1.5 ml Unidose* ampoules containing 60 mg gentamicin base/i .5 ml. Solutions are heat stable and do not require refrigeration. REFERENCES: 9. Jackson, G. G.: Laboratory and clinical 1. Cox. C. E.: Gentamicin. M. Clin. investigation of gentamicin, ibid., p. 62. North America 51:1395, 1970. 10. Medeiros, A. E.: Discussion, J. Infect. Dis. 2. Hoeprich, PD.: new antimicroblcs for the 119:533, 1969. treatment of infections caused by gram-negative 11. Polk, H.: Discussion, J. Infect. Dis. bacilli, M. Clin. North America 51:1127, 1967. 119:529, 1969. 3. Finland, M.: The symposium on gentamicin. 12. McCracken, G. H., Jr., and Jones, J. Infect. Dis. 119:537, 1969. L. G.: Gentamicin in the neonatal period, Am. J. 4. Brayton, R. G., and Louria, D. B.: Gentamicin Dis. Child. 120:524, 1970. in gram-negative urinary and pulmonary 13. Nunnery, A. W., and Riley, H. D., Jr.: infections, Arch. Int. Med. 114:205, 1964. Gentamicin: Clinical and laboratory studies in 5, Louria, D. R.: Young, L.: Armstrong, D., and infants and children. J. Infect. Dis. 119:169, 1969. Smith, J. K.: Gentamicin in the treatment of 14. Jackson, G. G.: Highlights of a Symposium pulmonary infections, J. Infect. Dis. 119:183, on Gentamicin, a filmed panel discussjon 1969. summarizing a symposium on gentamicin, 6. Cox, G. E.: Gentamicin, a new aminoglycoside University of California School of Medicine, antibiotic: Clinical and laboratory studies in Los Angeles January 26,1971. urinary tract infection, J. Infect. Dis. 15. Cox, C. .., ibid. 119:486, 1969. 16. Weinstein, M. J.: Drube, C. G.: Moss, E. L., 7. Cox, C. E., and Harrison, L. H.: Gram-negative Jr., and Waltz, J. A.: Microbiologic studies related bacteremia and comparison of gentamicin and to bacterial resistance to gentamicin, J. Infect. polymyxin B-ksnamycm therapy. Presented at Dis. 121:811, 1971. the Annual Meetingot the American Urological 17. Arieri, G. M.: Falco, F. G.: Smith, H. M.,and Association, Phila delphia, Pennsylvania, Holson, L. B.: Clinical research experience with May 10-14, 1970. gentamicin: Incidence of adverse reactions. 8 .G roll, E.: Clinical experience with gentamicin, .iupplement to the Medical Journal of Australia, data from 12 German clinics, in Gentamicin: June 13, 1970. First International Symposium, Paris, January Product monograph available on request from... 1967, Lucerne, Essex Chemie AG, 1967, p. 121.
Schering Corporation Limited, Pointe Claire, Quebec H9R 1B4 332 CMA JOURNAL/AUGUST 23, 1975/VOL. 113
Reg. T.M.
that the award is appropriate, based on not only plaintiff's life expectancy but also the rate of anticipated inflation. CMPA records clearly indicate the litigation sequela - high court awards resulting often from physicians' undertaking recently developed, high-risk, sophisticated, accident-prone procedures. Examples of such procedures are angiography, coronary or circulatory system surgery involving the use of bypass equipment, deep neurosurgery, highly toxic chemotherapy and immunotherapy in the control of neoplasia and the use of some antiinflammatory medications. Not only is the development and use of these procedures significant in malpractice litigation award size, but so is the evolution of the type of patient who receives the procedure. For example, a 65-year-old unemployed bachelor labourer, who has a 10-year history of coronary insufficiency - of late completely incapacitating him undergoes coronary angiography. An accident occurs and the surgeon is found at fault. In a second case, a 26-year-old lawyer, married, the father of four children, has angiography for an upper limb circulatory problem which is annoying, but not incapacitating, has a comparable accident, in which the surgeon is found at fault. The court would assess their relative ages, life expectancies, familial and financial obligations, earning potential and other factors. The award to the man's family in case no. 2 may be several times that granted to the family in case no. 1. Under the circumstances described, case no. 2 would be much more likely to result in legal action than would case no. 1. In earlier decades complex and extensive procedures were applied only to patients seriously afflicted with their disease and already disabled by it. A mishap and unsatisfactory outcome in these circumstances was more readily accepted and if judged due to negligence was less costly in monetary terms. With improved methods and experience more complex therapy is now given to relatively healthy younger, often productive individuals - individuals who have not yet suffered the ravages of their disease process. Then, if harm is done the results in human and economic terms can be disastrous. While sophisticated, high-litigationrisk investigation and treatment have played a part in the increased size of court awards, they have not greatly affected the numbers of legal actions taken against physicians. The CMPA reports that most actions continue to result from errors and inadequate professional performance in everyday,
common,
uncomplicated procedures.
A review of medical malpractice liti¬ gation indicates that most legal actions result from errors of omission rather than commission. The annual reports of the CMPA are liberally sprinkled with warnings that the principal factor leading to malpractice suits is a lack of meaningful physician-patient com¬ munication. Another important cause is related to inadequate clinical assess¬ ment of patients and, most importantly, the inadequate recording of the medical history. Incomplete assessments and faulty medical judgement may lead to problems, but decisions to withhold extensive radiological or labo¬ ratory tests, based on the physician's judgement after an adequate and re¬ corded physical examination, are sel¬ dom the basis for successful litigation. While the term defensive medicine has been used by Canadian physicians commenting on practice in the US, several Canadian authorities now be¬ lieve that it is already present, and becoming increasingly prevalent, in Canada. In her valedictory address as CMA president, Dr. Bette Stephenson stated, "Perhaps the most hazardous result of malpractice litigation phobia is defensive medicine. In order to pro¬ tect themselves in the possible event of suit, physicians may submit each and every patient to the full range of laboratory testing procedures and ra¬ diographic examinations. Already some evidence of this phenomenon has been exhibited in physicians' practice pro¬ files. Widespread application of such superdefensive practice is fraught with real danger for both individual patients and society as a whole. The individual patient may be subjected to bad med¬ ical care and the hazards of excessive investigation and at the same time be denied access to the benefits of rela¬
tively
new
treatments.
Society
as
a
whole suffers the impedence of ad¬ vances in medical science and the intolerable burden of explosively expanding costs of medical care. The picture of a malpractice-inhibited medical pro¬ fession is neither encouraging nor
pretty."
While
errors in occur
gement do
medical-clinical jud¬ and form the basis
malpractice litigation, they according to the CMPA, "in a distinct minority". for medical are,
These facts would suggest that one of the hazards of increased malpractice defensive medicine, in¬ litigation cluding the ordering of unnecessary radiological and laboratory tests may be not only harmful to the patient and a sizable economic waste, but rel¬ atively useless as a device to protect the competent physician from success¬ ful medical malpractice litigation. .
.
In recent years the federal and pro¬ vincial governments have introduced legislative changes which have major impetus for medical malpractice litiga¬ tion. By far the most significant of these relates to statutes of limitation. In essence, such statutes set a time limit following provision of a medical serv¬ ice during which a patient may launch a malpractice lawsuit. Until recently that limitation was generally "1 year from the date when, in the matter complained of, such professional serv¬ ices terminated". The trend now is to extend that period and on occa¬ sion to make it indefinite. At the date this report was written the time con¬ straints imposed by legislation are: BC 2 years (this can be extended to 2 years: a maximum 10); Alberta 1 year; Manitoba Saskatchewan 2 years (courts can, on application, extend this to an indefinite period); 3 Ontario indefinite; Quebec years (can be extended to a maximum 30); New Brunswick 2 years; Nova 1 year; New¬ 1 year; PEI Scotia 2 2 years; Yukon foundland 2 Northwest Territories years. years; The profession has real reason to be concerned with recent changes in On¬ tario law, proclaimed July 14 as the Health Disciplines Act. There has been a major change in the statute of limitations with respect to civil liability. Pre¬ viously any action against the physician had to be commenced within a period of 1 year from the last professional service related to the alleged malprac¬ tice or negligence. Under the Health Disciplines Act, it must commence within 1 year from the time the per¬ son taking the action knew or ought to have known the fact or facts on which negligence or malpractice allegations are based. Depending on the cir¬ cumstances, this could be an unlimited period. Not only does this become the operative law for about one third of Canada's medical profession, but On¬ tario legislation is frequently used as a pattern for other provinces. In recent months the Newfoundland Medical As¬ sociation was successful in having com¬ parable legislation amended to provide for a definitive 2-year period. Up to 1955 the Criminal Code of Canada prohibited lawyers from engaging in a contingency billing arrange¬ ment, or champerty (as it is referred to by lawyers), with clients. Up to that time lawyers were required by law to bill for their services on the basis of a predetermined, reasonable fee for serv¬ ices rendered. They were prohibited from accepting a case for which the fee would be an agreed percentage (25, 30 or 50%) of a successful litigation court award or settlement out of court. If the suit were not successful, the .
.
.
.
.
.
.
lawyer received either no fee or a very limited retainer. The removal of prohibition on con¬ tingency billing (maintenance and champerty) from the Criminal Code on Apr. 1, 1955, together with amend¬ ments to provincial legislation and precedent-setting provincial court de¬ cisions, means that some degree of con¬ trolled contingency billing is now legal in Quebec, Alberta, BC, Manitoba, Nova Scotia, New Brunswick and the Northwest Territories. A special com¬ mittee of the Ontario Bar is currently studying the issue. Many Ontario law¬
yers anticipate that the decision of the committee and eventual recommenda¬ tion of the Ontario Bar Association to the Government of Ontario will be to allow a degree of controlled situation
contingency billing. In contrast to common beliefs, con¬ tingency billing is not a "cardinal unethical practice" for lawyers. Chapter 10, section 8 of the Canadian Bar As¬ sociation's code of professional conduct states: "Except as prohibited by the laws of the jurisdiction in which the lawyer practises, it is not improper for him to enter into an arrangement with his client for a contingent fee, provided
such fee will be fair and reasonable." Contingency billing and ambulancechasing lawyers who make a practice of promoting medical malpractice liti¬
gation
on a
contingency billing system
in the United States are generally con¬ sidered to have been a major factor contributing to the US medical mal¬ practice insurance fiasco. The Cana¬ dian Medical Protective Association, however, believes that to date contin¬ gency billing has not been a major factor in the increase in legal actions or the size of awards in Canada. Never¬ theless, it admits that if contingency billing were to become a widespread practice and if lawyers were to alter their normal system of practice and to begin active promotion of medical mal¬ practice lawsuits on the basis of con¬ tingency billing, both could contribute to a major problem in the not-toodistant future. Concerned with the po¬ tential effects of these legislative changes, the CMA president has drawn them to the attention of the federal ministers of health and justice. Health Minister Marc Lalonde, himself a law¬ yer, has recognized the hazards of the situation the potential medicolegal plight of the physician and the poten¬ tial increase in health care cost and has placed the subject on the next health ministers' conference agenda. In a speech to the annual meeting of the Canadian Hospital Association, Justice Minister Otto Lang indicated he was conversant with, and concerned about, the medical malpractice situa.
CMA JOURNAL/AUGUST 23, 1975/VOL. 113 333
tion in the United States and indications that the problem is increasing in Canada. He indicated a perceptive recognition of the potential effect on the quality of health care: "You get high pressure situations where the last thing you want is the person performing the service who is concerned that what he is doing... is legally safe as distinct from the medically advantageous." He suggested that consideration should be given to some form of a compensation plan to avoid medical malpractice lawsuits. "If we want to pay compensation to persons who have injuries during the course of medical treatment, I believe it ought to be done through a scheme that directs itself to the purpose of compensation and is not based on fault." Both ministers have recognized the implications for both physicians and the hospitals of increased medical malpractice litigation. It has become the norm, where malpractice or negligence lawsuits are undertaken, for the plaintiff to sue not only the attending physician but also the hospital and frequently hospital employees. During 1974 when 220 actions were taken against CMPA members, a hospital was also sued on 93 occasions. The solutions to Canada's current medical malpractice problems, like the causes, are unquestionably multiphasic. The professional conduct of each in-
dividual physician - the practice of excellent, careful, but not defensive medicine - is the obvious solution to the basic problem. Both the maintenance of accurate, complete records and the improvement of meaningful two-way patient-physician communication are essential. A definite 2-year provincial statute of limitation period from the date the professional services terminated would appear to be fair to all concerned. The United States experience should encourage the profession to oppose legislation which provides for undue discovery periods. Allowing patients a period of time following the indefinite point at which "he thinks, first has knowledge or could reasonably have come to the knowledge" that litigation against his physician is indicated is both unfair and unrealistic. Among other things it would mean maintaining office and hospital records almost indefinitely. Witnesses required to effectively defend such legal actions - the attending physician, assistants, office or hospital staff - not to mention accurate mental records of what occurred cannot be retained on an indefinite basis. While it has not yet created major problems, contingency billing should be outlawed by statute and professional ethics. Lastly, efforts should be made to halt extensive publicity and other fac-
tors that lead to an extension and intensification of the medical malpractice psychology, leading to increased medical malpractice litigation. The public must be educated not to have undue, unwarranted expectations. It must learn that, contrary to the suggestions of Marcus Welby and other mass media exposure outlets, the outcomes of expertly completed medical procedures are not always successful. There is no doubt in this author's mind that extensive Canadian newspaper and magazine reports on the US or Canadian malpractice situation will lead to additional legal actions against physicians. Similarly, while I can find no definitive proof, it is my opinion also that the advent of universal, government-sponsored, medical care insurance and the subsequent elimination of the Robin Hood image of the physician, coupled with the disappearance of the patientperceived financial link or contract with the physician, is also a factor in increased legal actions. The currently prevalent public image of the physician as one of the moneyed few, fair game for lawsuits, is also a factor. Action by the profession to prevent what Dr. Stephenson described as "the spread of the medical malpractice litigation epidemic north of the 49th parallel" is indicated and required on several fronts. There is no effective quarantine along the world's longest undefended border.E
The evolution of medical malpractice litigation in the United States By D.S. Rubsamen, MD, LLB The doctor is not liable for an honest mistake. If a patient suffers because an error in judgement by the physician, there is no liability either. At its most basic meaning, malpractice refers to an error of commission where the mistake is sufficiently obvious to elicit a comment from the objective observer, "That sort of thing should just never happen." In areas of the United States where malpractice litigation is still only a minor irritant, the foregoing mythology is accepted by most physicians. And the reality matches the myth for them, because their limited exposure to litigation is the result of a restriction of opportunity for the negligently injured patient to pursue his case in court. What is the source of this fundamental restriction? In general, the patient-plaintiff cannot successfully sue a physician or hospital unless an expert medical witness will appear in court on his behalf and
identify the substandard conduct which caused the patient's injury. To say a jurisdiction* has a minor malpractice Dr Rubsamen is one of the foremost US experts on medicolegal affairs. lie practised internal medicine In Califorala until 1962, since when he has been a consultant on medicat aspects of litigation. He has carried out two studies for the US government Into medical malpractice and currently serves on the board of governors Of the Americas College of Legal Mcdlvine. His article was specially commissioned by CMAJ. problem is synonymous with the statement that physicians in that area usually will not testify against colleagues. Also, an expert malpractice plaintiffs bar will not exist, lacking cases to develop *Jurisdiction has a variety of connotations. As used in this article it refers to states, territories and the District of Columbia.
.34 CMA JOURNAL/AUGUST 23, 1975/VOL. 113
real expertise in this highly complicated field. And the public, from whom juries are selected, will be more conservative about the value of an injury in the occasional case which does result in a malpractice award. This state of affairs was universal in the United States 25 years ago. Conspiracy of silence may be too harsh a phrase to characterize the then-pervasive reluctance of physicians to testify against one another, but it does describe the effect of this perceived mutuality of interest. Then, very slowly at first but with gathering speed, the status quo was altered in just two or three states. The evolution of malpractice litigation in California is illustrative. Beginning about the early 1960s, especially in southern California, the appearance of competent expert witnesses in malpractice cases became more than a rare occurrence. By the middle 1960s, the half-dozen first-rate
plosion are present. Improved perform¬ ance by individual physicians, and ac¬ tion by the Canadian Medical Associa¬ tion, provincial medical associations, licensing bodies and government are re¬ quired to avoid further deterioration. In recent months Canadian physi¬ cians have read, with an almost aca¬ demic detachment, medical journal and newspaper reports on the USA medical malpractice insurance fiasco. That an¬ nual malpractice insurance premiums could be an average $4000 and even as high as $35 000, for a few subspecialties in some states, was difficult to believe. But, high premium demands aside, that physicians might be forced to leave practice because there was no malpractice insurance available at any price was unbelievable. The truth is US insurance companies are vacating the field, and malpractice insurance is increasingly hard come by. Canadian physicians have considered the reports gross exaggerations published for poli¬ tical reasons or to reduce much lower, but still too high, premium rates. Many dismissed the situation as another clas¬ sic Yankee foul-up of no relevance to Canadians. In fact, more than 20 states in the US have been forced (on occa¬ sion by physician strikes) to enact emergency legislation to allow medical practice to continue. But as CMA Past President Dr. Bette Stephenson has warned, "the Canadian medical pro¬ fession cannot afford the luxury of smug, chauvinistic, national complacency." A review of a few key statistics from the records of the Canadian Medical
?Mr. Geekie is director of communications for the Canadian Medical Association. Reprints of his article are available from the CMA depart¬ ment of communications, PO Box 86S0, Ottawa K1G 0G8.
Protective Association indicates the severity of the problem and the rate at which it has been growing. The CMPA, a mutual medical defence union, is a
nonprofit professional association, not an insurance company, and represents practically all Canadian physicians in medical malpractice litigation matters.
Formed in 1901, this, the oldest affiliate of the Canadian Medical Associa¬ tion, represents more than 30 000 phy¬ sicians. While a few hundred Canadian physicians also carry commercial mal¬ practice insurance, they are a distinct minority. In 1945, while representing 3367 physicians, CMPA members were involved in nine new legal actions, or one per 374 physicians. There was no appreciable rate change in the number of new legal actions until 1965 (table I). In the 10 years 1965-74 the annual number of new legal actions increased from 49 to 220. The ratio increased from one per 325 physicians to one per 132. The experience of the first half of 1975 indicates the trend is continu¬ ing. During these 6 months, 126 new legal actions were launched against CMPA members compared to 100 in the corresponding period last year. Of equal concern has been the in¬ crease in the amounts of court awards and out-of-court settlements and the rate of this increase. In 1950, CMPA paid an average $2942 on behalf of members to conclude 11 malpractice claims. In 1974, the average amount had risen to $13 386. While the numbers are relatively
small, perhaps
not
statistically signifi¬
cant, and the factors involved are num¬ erous and complex, we draw your at¬ tention to the fluctuating, but distinct, shift in ratio of court awards to out-ofcourt settlements. In 1955, three cases were settled out of court for every one concluded in the courts. In the past 3 years the ratio has approximated 7:1, 16:1 and 6.5:1. The figures are of con¬ siderable import when correlated to the
policy of the CMPA that "unwarranted legal actions, or inflated financial de¬ mands related to cases where a degree of physician responsibility has been conceded, are fought in court". The obvious interpretation is that not only have malpractice legal actions against physicians increased, but warranted, incontestable actions against physicians have increased. However, such figures don't necessarily point to either a de¬ terioration in medical care or an in¬ crease in medical misadventure. Physi¬ cians now annually perform procedures of greater number and complexity and have thus escalated the probability and risk of malpractice litigation. Of equal importance is the fact that
the number of cases dismissed or dis¬ continued (table 2) an indication of unjustified or unwarranted actions launched has also increased. While current annual CMPA mem¬ bership dues at $100 are higher than the $60 (£25) charged for comparable protection in the UK, they are con¬ siderably less than the average $4000 in the US. Recent experience indicates
growing problem. Mindful of the association's increas¬ ing contingent liability (the estimated cost of the matters already in hand but not yet concluded) another 100% increase to $200, to take effect in January 1976 was approved at the association's recent annual meeting in Calgary. Table I clearly indicates the primary factors contributing to the steady increase in annual expenditures: a
an increased number and size of court awards and out-of-court financial set¬ tlements and increases in legal and ad¬
ministrative costs. Increased legal and administrative costs should not be directly or exclusively correlated to the increase or size of legal actions against members. Re¬ cent CMPA annual reports show a marked increase in services provided to members on matters not related to
CMA JOURNAL/AUGUST 23, 1975/VOL. 113 327
actual legal actions. In contrast to commercial insurance companies, CMPA does not prorate membership dues to experience, geo¬ graphic area, or type of practice or specialty, for CMPA is not an insur¬ ance company. All CMPA members
general practitioners, orthopedic and plastic surgeons, anesthetists, residents or those engaged in research or admin¬ istration pay the same amount an¬ nually. The profession shares the risk of all its component parts; physicians practising low-risk specialties, such as administration or research, are not singled out for lower premiums, as they are in the United States. Neither are physicians exposed to higher costs, as are anesthetists, orthopedic and plastic surgeons covered by geographic- and experience-rated commercial insurance. In a similar vein, members' dues do not increase as the result of bad personal experience. As long as a physician re¬ mains a CMPA member, he is eligible for the full services of the association. It is interesting that a sizable propor¬ tion of legal actions for medical mal¬ practice is not related to surgical or anesthetic mishaps. During 1974, of 220 legal actions against members, 91 had no relationship to surgery or an¬ esthesia. Another major difference between the CMPA and commercial insurance companies is CMPA does not draw up a formal insurance contract with mem¬ bers. Indeed, several physicians have voiced concern with the lack of a formal, legal guarantee that the CMPA
will defend them and pay awards or out-of-court settlements. Unquestion¬ ably, this fact has permitted CMPA to take a much tougher stance in mal¬ with both those practice litigation launching actions and its members. There is understandable pressure from members to settle unjustified or questionable actions out of court or to grant inordinate out-of-court settlements to avoid for the member expensive, timeconsuming, reputation-damaging and embarrassing court appearances and publicity. In the long term such pres¬ sure is imprudent. Where commercial insurance companies are involved, the company tends to accede and to grant the wishes of the client by settling out of court. The increased costs are simply reflected in higher premiums the fol¬ lowing year. More damaging in the long term, such accession encourages increased litigation by allowing rel¬ atively easy, successful legal action. CMPA attempts, where there is acknowledged physician fault, to realize a fair out-of-court compensation settle¬ ment, but where disagreement exists re¬ garding the extent of physician fault or where the demanded settlement is excessive, the association resists the pressure for out-of-court settlements and dictates that the matter be taken to court. Notwithstanding the absence of a contract, in its 74-year history the association has never failed to defend a member, to pay the court award or to pay what the CMPA considers an appropriate out-of-court settlement. While there is reason for concern
Table I.CMPA receipts, actions and expenditures
,.^m^m^mi;^,..
w_
Source.Canadian Medical Protective Association
about financial implications of in¬ creased court awards and out-of-court settlements, Canadian experience does not compare with that of US physi¬ cians. Settlements in the US are fre¬ quently in the six-figure bracket, and awards in excess of $1000 000 grow increasingly common. (For more de¬ tails on the US problem, see the fol¬ lowing article.) While the CMPA does not divulge the size of out-of-court settlements, the highest court award on record in Canada for medical malprac¬ tice is $170 000. One of the major reasons for this US-Canada differential rests on our judicial systems. In the US, most litigation is tried before a jury, and, most important, where the defendant physician is found at fault, the size of the court award is deter¬ mined by the jury. In Canada, almost all cases are tried before a judge, al¬ though the plaintiff may apply to have his case tried before a jury. Thus when the defendant Canadian physician is found at fault the award and its amount are determined by a judge not a jury. A jury would have less experi¬ ence and knowledge in such matters and be more prone to grant large awards on emotional grounds. Several factors underlie the increase in Canadian court awards inflation, longer life expectancy and the in¬ creased number and frequency of phy¬ sicians conducting sophisticated accident-prone, high litigation risk proce¬ dures. The effect of Canada's inflation speaks for itself. Based on the 1961 dollar, our rate of inflation from that time to the end of 1974 has averaged more than a compounding 4%. In 1972 it was 4.8%; in 1973, 7.3%, and in 1974 a whopping 12%. Current es¬ timates predict a 10% inflation rate in 1975, and, when it comes to medical .
l!§||§|
illflf llllif lilllll llliflii ||ijj|||.
malpractice
court
awards, anticipated
inflation rates are significant. Since the courts grant awards on a one-time-only basis, they are obligated to take into account the anticipated decrease in the purchasing power of the Canadian dol¬ lar. For example, a court which grants an award to a 20-year-old paraplegic or human vegetable plaintiff the re¬ sult of a shower of emboli subsequent .
JBffffraS^^^
*6 months only Source.Canadian Medical Protective Association
328 CMA JOURNAL/AUGUST 23, 1975/VOL. 113
to
faulty arteriography
.
must ensure
Garamycin* Injectable IM/IV gentamicin sulphate U.S.
GARAMYCIN Injectable (40 mg (base)/ml) SCHERING GARAMYCIN Pediatric Injectable (10 mg (base)/ml) INDICATIONS: GARAMYCIN is indicated in the treatment of serious infections caused by proven susceptible organisms. In suspected or documented gram-negative septicemia, particularly when shock or hypotension are present, GARAMYCIN should be considered for initial antimicrobial therapy. In staphylococcal infections, GARAMYCIN should be considered when conventional antimicrobial therapy is inappropriate or when susceptibility testing and clinical judgment indicate its use. ADMINISTRATION AND DOSAGE: INTRAMUSCULAR/INTRAVENOUSff ADMINISTRATION A. Urinary Tract Infections The usual dosage in lower urinary tract infections is 0,8-1,2 mg/kg/day in two or three equally divided doses for seven to ten days. For increased antibacterial activity it may be advantageous to alkalinize the urine. Infections of the upper urinary tract, such as pyelonephritis, should be treated according to one of the schedules for systemic infections. B. Systemic Infections-Normal Renal Function The treatment of systemic infections in patients with normal renal function requires a dosage of 3 mg/kg/day in three equally divided doses. A course of seven to ten days of treatment will usually clear an infection due to a susceptible organism. In patients with life-threatening infections, dosages up to S mg/kg/day should be administered in three or four equally divided doses. This dosage should be reduced to 3 mg/kg/day as soon as clinically indicated. C. Patients with Impaired Renal Function In patients with diminished renal function or those undergoing intermittant hemodialysis, the dosage has to be adjusted depending on the degree of renal impairment. For detailed information consult the product monograph or the Schering Representative. flINTRA VENOUS ADMINISTRATION: The usual effective dosage of GARAMYCIN Injectable administered intravenously is 3 mg/kg/day in three equally divided doses. For intravenous administration, a single dose (1 mg/kg) of GARAMYCIN Injectable is diluted in 100-200 ml of sterile normal saline or 5% dextrose. The solution is infused over a period of one to two hours and repeated two to three times a day. The usual duration of treatment is seven to ten days. PRECAUTIONS: Ototoxicity: Gentamicin, like other aminoglycosides, has produced ototoxicity in experimental animals and man. It is manifested by damage to vestibular function and may be delayed in onset. Damage has occurred in patients who were uremic, had renal dysfunction, had prior therapy with ototoxic drugs or received higher doses or longer therapy than those recommended. The concomitant use of ethacrynic acid and furosemide should be avoided. The physician should strongly consider discontinuing the drug if the patient complains of tinnitus, dizziness or loss of hearing. Serum GARAMYCIN levels in excess of 12 .g/ml should be avoided. Nephrotoxicity: Nephrotoxicity manifested by an elevated BUN or serum creatinine level or a decrease in the creatinine clearance has been reported with GARAMYCIN. In most cases these changes have been reversible. Neuromuscular Blocking Action: Neuromuscular blockage and respiratory paralysis have been reported in animals. The possibility of this occurring in man should be kept in mind particularly in those patients receiving neuromuscular blocking agents. ADVERSE REACTIONS: Among other adverse reactions reported infrequently and possibly related to GARAMYCIN are elevated SGOT, increased serum bllirubin, granulocytopenia and urticaria. Reactions reported rarely and possibly related to GARAMYCIN include drug fever, hypotension, hypertension, itching, hepatomegaly and splenomegaly. OVERDOSAGE: Peritoneal or hemodialysis will aid in the removal of GARAMYCIN from the blood. SUPPLIED: Each ml of aqueous parenteral sblution at pH 4.5 contains: 40 mg or 10 mg (pediatric) of gentamicin base. Preservatives, methylparaben U.S.P., propylparaben U.S.P., sodium bisulfite U.S.P., disodium edetate U.S.P. Available in 2 ml multiple-dose vials and 1.5 ml Unidose* ampoules containing 60 mg gentamicin base/i .5 ml. Solutions are heat stable and do not require refrigeration. REFERENCES: 9. Jackson, G. G.: Laboratory and clinical 1. Cox. C. E.: Gentamicin. M. Clin. investigation of gentamicin, ibid., p. 62. North America 51:1395, 1970. 10. Medeiros, A. E.: Discussion, J. Infect. Dis. 2. Hoeprich, PD.: new antimicroblcs for the 119:533, 1969. treatment of infections caused by gram-negative 11. Polk, H.: Discussion, J. Infect. Dis. bacilli, M. Clin. North America 51:1127, 1967. 119:529, 1969. 3. Finland, M.: The symposium on gentamicin. 12. McCracken, G. H., Jr., and Jones, J. Infect. Dis. 119:537, 1969. L. G.: Gentamicin in the neonatal period, Am. J. 4. Brayton, R. G., and Louria, D. B.: Gentamicin Dis. Child. 120:524, 1970. in gram-negative urinary and pulmonary 13. Nunnery, A. W., and Riley, H. D., Jr.: infections, Arch. Int. Med. 114:205, 1964. Gentamicin: Clinical and laboratory studies in 5, Louria, D. R.: Young, L.: Armstrong, D., and infants and children. J. Infect. Dis. 119:169, 1969. Smith, J. K.: Gentamicin in the treatment of 14. Jackson, G. G.: Highlights of a Symposium pulmonary infections, J. Infect. Dis. 119:183, on Gentamicin, a filmed panel discussjon 1969. summarizing a symposium on gentamicin, 6. Cox, G. E.: Gentamicin, a new aminoglycoside University of California School of Medicine, antibiotic: Clinical and laboratory studies in Los Angeles January 26,1971. urinary tract infection, J. Infect. Dis. 15. Cox, C. .., ibid. 119:486, 1969. 16. Weinstein, M. J.: Drube, C. G.: Moss, E. L., 7. Cox, C. E., and Harrison, L. H.: Gram-negative Jr., and Waltz, J. A.: Microbiologic studies related bacteremia and comparison of gentamicin and to bacterial resistance to gentamicin, J. Infect. polymyxin B-ksnamycm therapy. Presented at Dis. 121:811, 1971. the Annual Meetingot the American Urological 17. Arieri, G. M.: Falco, F. G.: Smith, H. M.,and Association, Phila delphia, Pennsylvania, Holson, L. B.: Clinical research experience with May 10-14, 1970. gentamicin: Incidence of adverse reactions. 8 .G roll, E.: Clinical experience with gentamicin, .iupplement to the Medical Journal of Australia, data from 12 German clinics, in Gentamicin: June 13, 1970. First International Symposium, Paris, January Product monograph available on request from... 1967, Lucerne, Essex Chemie AG, 1967, p. 121.
Schering Corporation Limited, Pointe Claire, Quebec H9R 1B4 332 CMA JOURNAL/AUGUST 23, 1975/VOL. 113
Reg. T.M.
that the award is appropriate, based on not only plaintiff's life expectancy but also the rate of anticipated inflation. CMPA records clearly indicate the litigation sequela - high court awards resulting often from physicians' undertaking recently developed, high-risk, sophisticated, accident-prone procedures. Examples of such procedures are angiography, coronary or circulatory system surgery involving the use of bypass equipment, deep neurosurgery, highly toxic chemotherapy and immunotherapy in the control of neoplasia and the use of some antiinflammatory medications. Not only is the development and use of these procedures significant in malpractice litigation award size, but so is the evolution of the type of patient who receives the procedure. For example, a 65-year-old unemployed bachelor labourer, who has a 10-year history of coronary insufficiency - of late completely incapacitating him undergoes coronary angiography. An accident occurs and the surgeon is found at fault. In a second case, a 26-year-old lawyer, married, the father of four children, has angiography for an upper limb circulatory problem which is annoying, but not incapacitating, has a comparable accident, in which the surgeon is found at fault. The court would assess their relative ages, life expectancies, familial and financial obligations, earning potential and other factors. The award to the man's family in case no. 2 may be several times that granted to the family in case no. 1. Under the circumstances described, case no. 2 would be much more likely to result in legal action than would case no. 1. In earlier decades complex and extensive procedures were applied only to patients seriously afflicted with their disease and already disabled by it. A mishap and unsatisfactory outcome in these circumstances was more readily accepted and if judged due to negligence was less costly in monetary terms. With improved methods and experience more complex therapy is now given to relatively healthy younger, often productive individuals - individuals who have not yet suffered the ravages of their disease process. Then, if harm is done the results in human and economic terms can be disastrous. While sophisticated, high-litigationrisk investigation and treatment have played a part in the increased size of court awards, they have not greatly affected the numbers of legal actions taken against physicians. The CMPA reports that most actions continue to result from errors and inadequate professional performance in everyday,
common,
uncomplicated procedures.
A review of medical malpractice liti¬ gation indicates that most legal actions result from errors of omission rather than commission. The annual reports of the CMPA are liberally sprinkled with warnings that the principal factor leading to malpractice suits is a lack of meaningful physician-patient com¬ munication. Another important cause is related to inadequate clinical assess¬ ment of patients and, most importantly, the inadequate recording of the medical history. Incomplete assessments and faulty medical judgement may lead to problems, but decisions to withhold extensive radiological or labo¬ ratory tests, based on the physician's judgement after an adequate and re¬ corded physical examination, are sel¬ dom the basis for successful litigation. While the term defensive medicine has been used by Canadian physicians commenting on practice in the US, several Canadian authorities now be¬ lieve that it is already present, and becoming increasingly prevalent, in Canada. In her valedictory address as CMA president, Dr. Bette Stephenson stated, "Perhaps the most hazardous result of malpractice litigation phobia is defensive medicine. In order to pro¬ tect themselves in the possible event of suit, physicians may submit each and every patient to the full range of laboratory testing procedures and ra¬ diographic examinations. Already some evidence of this phenomenon has been exhibited in physicians' practice pro¬ files. Widespread application of such superdefensive practice is fraught with real danger for both individual patients and society as a whole. The individual patient may be subjected to bad med¬ ical care and the hazards of excessive investigation and at the same time be denied access to the benefits of rela¬
tively
new
treatments.
Society
as
a
whole suffers the impedence of ad¬ vances in medical science and the intolerable burden of explosively expanding costs of medical care. The picture of a malpractice-inhibited medical pro¬ fession is neither encouraging nor
pretty."
While
errors in occur
gement do
medical-clinical jud¬ and form the basis
malpractice litigation, they according to the CMPA, "in a distinct minority". for medical are,
These facts would suggest that one of the hazards of increased malpractice defensive medicine, in¬ litigation cluding the ordering of unnecessary radiological and laboratory tests may be not only harmful to the patient and a sizable economic waste, but rel¬ atively useless as a device to protect the competent physician from success¬ ful medical malpractice litigation. .
.
In recent years the federal and pro¬ vincial governments have introduced legislative changes which have major impetus for medical malpractice litiga¬ tion. By far the most significant of these relates to statutes of limitation. In essence, such statutes set a time limit following provision of a medical serv¬ ice during which a patient may launch a malpractice lawsuit. Until recently that limitation was generally "1 year from the date when, in the matter complained of, such professional serv¬ ices terminated". The trend now is to extend that period and on occa¬ sion to make it indefinite. At the date this report was written the time con¬ straints imposed by legislation are: BC 2 years (this can be extended to 2 years: a maximum 10); Alberta 1 year; Manitoba Saskatchewan 2 years (courts can, on application, extend this to an indefinite period); 3 Ontario indefinite; Quebec years (can be extended to a maximum 30); New Brunswick 2 years; Nova 1 year; New¬ 1 year; PEI Scotia 2 2 years; Yukon foundland 2 Northwest Territories years. years; The profession has real reason to be concerned with recent changes in On¬ tario law, proclaimed July 14 as the Health Disciplines Act. There has been a major change in the statute of limitations with respect to civil liability. Pre¬ viously any action against the physician had to be commenced within a period of 1 year from the last professional service related to the alleged malprac¬ tice or negligence. Under the Health Disciplines Act, it must commence within 1 year from the time the per¬ son taking the action knew or ought to have known the fact or facts on which negligence or malpractice allegations are based. Depending on the cir¬ cumstances, this could be an unlimited period. Not only does this become the operative law for about one third of Canada's medical profession, but On¬ tario legislation is frequently used as a pattern for other provinces. In recent months the Newfoundland Medical As¬ sociation was successful in having com¬ parable legislation amended to provide for a definitive 2-year period. Up to 1955 the Criminal Code of Canada prohibited lawyers from engaging in a contingency billing arrange¬ ment, or champerty (as it is referred to by lawyers), with clients. Up to that time lawyers were required by law to bill for their services on the basis of a predetermined, reasonable fee for serv¬ ices rendered. They were prohibited from accepting a case for which the fee would be an agreed percentage (25, 30 or 50%) of a successful litigation court award or settlement out of court. If the suit were not successful, the .
.
.
.
.
.
.
lawyer received either no fee or a very limited retainer. The removal of prohibition on con¬ tingency billing (maintenance and champerty) from the Criminal Code on Apr. 1, 1955, together with amend¬ ments to provincial legislation and precedent-setting provincial court de¬ cisions, means that some degree of con¬ trolled contingency billing is now legal in Quebec, Alberta, BC, Manitoba, Nova Scotia, New Brunswick and the Northwest Territories. A special com¬ mittee of the Ontario Bar is currently studying the issue. Many Ontario law¬
yers anticipate that the decision of the committee and eventual recommenda¬ tion of the Ontario Bar Association to the Government of Ontario will be to allow a degree of controlled situation
contingency billing. In contrast to common beliefs, con¬ tingency billing is not a "cardinal unethical practice" for lawyers. Chapter 10, section 8 of the Canadian Bar As¬ sociation's code of professional conduct states: "Except as prohibited by the laws of the jurisdiction in which the lawyer practises, it is not improper for him to enter into an arrangement with his client for a contingent fee, provided
such fee will be fair and reasonable." Contingency billing and ambulancechasing lawyers who make a practice of promoting medical malpractice liti¬
gation
on a
contingency billing system
in the United States are generally con¬ sidered to have been a major factor contributing to the US medical mal¬ practice insurance fiasco. The Cana¬ dian Medical Protective Association, however, believes that to date contin¬ gency billing has not been a major factor in the increase in legal actions or the size of awards in Canada. Never¬ theless, it admits that if contingency billing were to become a widespread practice and if lawyers were to alter their normal system of practice and to begin active promotion of medical mal¬ practice lawsuits on the basis of con¬ tingency billing, both could contribute to a major problem in the not-toodistant future. Concerned with the po¬ tential effects of these legislative changes, the CMA president has drawn them to the attention of the federal ministers of health and justice. Health Minister Marc Lalonde, himself a law¬ yer, has recognized the hazards of the situation the potential medicolegal plight of the physician and the poten¬ tial increase in health care cost and has placed the subject on the next health ministers' conference agenda. In a speech to the annual meeting of the Canadian Hospital Association, Justice Minister Otto Lang indicated he was conversant with, and concerned about, the medical malpractice situa.
CMA JOURNAL/AUGUST 23, 1975/VOL. 113 333
tion in the United States and indications that the problem is increasing in Canada. He indicated a perceptive recognition of the potential effect on the quality of health care: "You get high pressure situations where the last thing you want is the person performing the service who is concerned that what he is doing... is legally safe as distinct from the medically advantageous." He suggested that consideration should be given to some form of a compensation plan to avoid medical malpractice lawsuits. "If we want to pay compensation to persons who have injuries during the course of medical treatment, I believe it ought to be done through a scheme that directs itself to the purpose of compensation and is not based on fault." Both ministers have recognized the implications for both physicians and the hospitals of increased medical malpractice litigation. It has become the norm, where malpractice or negligence lawsuits are undertaken, for the plaintiff to sue not only the attending physician but also the hospital and frequently hospital employees. During 1974 when 220 actions were taken against CMPA members, a hospital was also sued on 93 occasions. The solutions to Canada's current medical malpractice problems, like the causes, are unquestionably multiphasic. The professional conduct of each in-
dividual physician - the practice of excellent, careful, but not defensive medicine - is the obvious solution to the basic problem. Both the maintenance of accurate, complete records and the improvement of meaningful two-way patient-physician communication are essential. A definite 2-year provincial statute of limitation period from the date the professional services terminated would appear to be fair to all concerned. The United States experience should encourage the profession to oppose legislation which provides for undue discovery periods. Allowing patients a period of time following the indefinite point at which "he thinks, first has knowledge or could reasonably have come to the knowledge" that litigation against his physician is indicated is both unfair and unrealistic. Among other things it would mean maintaining office and hospital records almost indefinitely. Witnesses required to effectively defend such legal actions - the attending physician, assistants, office or hospital staff - not to mention accurate mental records of what occurred cannot be retained on an indefinite basis. While it has not yet created major problems, contingency billing should be outlawed by statute and professional ethics. Lastly, efforts should be made to halt extensive publicity and other fac-
tors that lead to an extension and intensification of the medical malpractice psychology, leading to increased medical malpractice litigation. The public must be educated not to have undue, unwarranted expectations. It must learn that, contrary to the suggestions of Marcus Welby and other mass media exposure outlets, the outcomes of expertly completed medical procedures are not always successful. There is no doubt in this author's mind that extensive Canadian newspaper and magazine reports on the US or Canadian malpractice situation will lead to additional legal actions against physicians. Similarly, while I can find no definitive proof, it is my opinion also that the advent of universal, government-sponsored, medical care insurance and the subsequent elimination of the Robin Hood image of the physician, coupled with the disappearance of the patientperceived financial link or contract with the physician, is also a factor in increased legal actions. The currently prevalent public image of the physician as one of the moneyed few, fair game for lawsuits, is also a factor. Action by the profession to prevent what Dr. Stephenson described as "the spread of the medical malpractice litigation epidemic north of the 49th parallel" is indicated and required on several fronts. There is no effective quarantine along the world's longest undefended border.E
The evolution of medical malpractice litigation in the United States By D.S. Rubsamen, MD, LLB The doctor is not liable for an honest mistake. If a patient suffers because an error in judgement by the physician, there is no liability either. At its most basic meaning, malpractice refers to an error of commission where the mistake is sufficiently obvious to elicit a comment from the objective observer, "That sort of thing should just never happen." In areas of the United States where malpractice litigation is still only a minor irritant, the foregoing mythology is accepted by most physicians. And the reality matches the myth for them, because their limited exposure to litigation is the result of a restriction of opportunity for the negligently injured patient to pursue his case in court. What is the source of this fundamental restriction? In general, the patient-plaintiff cannot successfully sue a physician or hospital unless an expert medical witness will appear in court on his behalf and
identify the substandard conduct which caused the patient's injury. To say a jurisdiction* has a minor malpractice Dr Rubsamen is one of the foremost US experts on medicolegal affairs. lie practised internal medicine In Califorala until 1962, since when he has been a consultant on medicat aspects of litigation. He has carried out two studies for the US government Into medical malpractice and currently serves on the board of governors Of the Americas College of Legal Mcdlvine. His article was specially commissioned by CMAJ. problem is synonymous with the statement that physicians in that area usually will not testify against colleagues. Also, an expert malpractice plaintiffs bar will not exist, lacking cases to develop *Jurisdiction has a variety of connotations. As used in this article it refers to states, territories and the District of Columbia.
.34 CMA JOURNAL/AUGUST 23, 1975/VOL. 113
real expertise in this highly complicated field. And the public, from whom juries are selected, will be more conservative about the value of an injury in the occasional case which does result in a malpractice award. This state of affairs was universal in the United States 25 years ago. Conspiracy of silence may be too harsh a phrase to characterize the then-pervasive reluctance of physicians to testify against one another, but it does describe the effect of this perceived mutuality of interest. Then, very slowly at first but with gathering speed, the status quo was altered in just two or three states. The evolution of malpractice litigation in California is illustrative. Beginning about the early 1960s, especially in southern California, the appearance of competent expert witnesses in malpractice cases became more than a rare occurrence. By the middle 1960s, the half-dozen first-rate
