Colleen M. Flood and Bryan Thomas
Canadian tort law, as it applies to medical malpractice, appears relatively settled from a systems perspective; there is no “burning platform” driving major tort reform in this area of the law. There are at least six fac- tors which have contained the volume and cost of malpractice litigation in Canada, summarized here and discussed further below. First, as distinct from the U.S., non-pecuniary damages for personal injury were capped by the Supreme Court of Canada in a trilogy of cases handed down in the late 1970s.1 Second, there is no pressure to reform from physicians, because the dominant insurance scheme, overseen by the Canadian Medical Protective Association (CMPA), effectively insulates physicians from the impact of tort liability; a finding of medical malpractice does not drive up an individual’s insurance premiums. The provinces contribute significantly to this cushioning effect, by reimbursing a significant portion of CMPA fees. Third, the CMPA has used its deep pockets to pursue what one Ontario judge recently described as a “scorched earth” policy in responding to med- ical malpractice claims, which has discouraged litigation.2 Fourth, Cana- da’s rules for awarding costs contribute to this problem, by making it risky for plaintiffs to pursue uncertain claims. Fifth, the inherent difficulties in establishing causation in medical malpractice cases combined with the broad defenses available for physicians further exacerbate the uphill battle facing the plaintiff patient. Finally, the tort law system treats physicians as “independent warriors,” shielding hospitals from vicarious liability for their malpractice. This is arguably problematic, because, as argued below, the deterrent effects of tort need to be targeted at the right level within the health care system.