Incidents of medical malpractice are a sad reality for patients of the Canadian health care system. Acts of negligence and malpractice resulting in adverse health outcomes drastically affect the lives of tens of thousands of victims every year. When medical malpractice occurs, the only way for Canadians to seek compensation for their injuries is through the court system. These cases, however, are extraordinarily difficult to prove, leaving many victims to deal with the consequences of a medical professional’s negligence on their own. Victims must be able to prove that an error occurred and that the error resulted in an injury. Proving that a medical professional failed to meet the established standard of care takes keen legal strategy, an abundance of resources, and skilled experts who serve to build the foundation for the case.
The biggest obstacle medical malpractice victims face, however, may be the organization that provides the legal defence for many of the doctors accused of medical malpractice, the Canadian Medical Protective Association (CMPA). Each province’s Colleges of Physicians and Surgeons requires doctors to carry medical malpractice liability coverage or insurance in an effort to protect both patients and physicians. For many doctors, this coverage is obtained through the Canadian Medical Protective Association (CMPA). Almost every physician in Canada is a member of the CMPA.
What Does the CMPA Do?
The CMPA’s stated mission is, “to protect the professional integrity of physicians and promote safe medical care in Canada.” As a not-for-profit organization, they have provided professional liability protection to Canadian physicians since 1901. The CMPA states that its members “are expected to practise in a manner consistent with the values of the medical profession and act in accordance with the existing obligations of the CMPA By-law and other expectations of the CMPA membership as a whole, as reflected in the decisions of the Association’s member-elected council.”
In exchange for annual fees, they provide their members with medical-legal advice in areas like regulatory authority complaints, hospital privilege issues, medical malpractice cases, and other civil actions. They also provide research, education services, and learning resources focusing on topics like risk management, needed system-level changes aimed at mitigating adverse events, and best practices for safe medical care. In defending a physician against a malpractice claim, they cover the cost of legal fees and, in the event of a settlement, pay out compensation awarded to the victim.
Since the early 2000s, the total number of claims filed against the CMPA and its members has decreased or stayed the same while the compensation awarded to victims has increased. It is estimated that every year, tens of thousands of Canadians suffer an adverse medical event. According to the CMPA’s website, there were only 732 legal actions filed in 2020 which represented a decrease from previous years.
Key Differences Between the CMPA and Insurance Companies
The CMPA is not an insurance company, and it has absolutely no obligation to compensate all claimants nor to defend its members against all claims. Unlike an insurance company, they do not underwrite an individual physician’s risk and unlike a professional regulatory body, they do not regulate how medicine is practiced, or establish standards of care, nor do they have the ability to provide or remove a doctor’s licence.
Traditionally, insurance companies focus on risk management and aim to keep costs down. Insurance companies attempt to assess risk at an individual level. They evaluate contributing risk factors and develop complex algorithms to project risk based on the information and statistical analysis.
The CMPA, however, takes a different approach. They attempt to reduce risk and prevent instances of medical malpractice through ongoing education, data collection and analysis, and research. They state their aim is to prevent healthcare-related patient harm from ever happening. The CMPA uses its research and data collection to publish articles focused on topics like risk management and patient safety. They also help to develop ongoing education opportunities for members that aim to improve medical practices. In addition to ongoing education, data analysis, and research, they’ve also implemented a way in which physicians can contact the CMPA, by phone or online inquiry, and get advice on how they can best provide safe, professional care and avoid any harm to patients caused by medical care. In order to provide this resource to its members, the CMPA has assembled a team of more than 40 doctors who provide guidance and expertise to the inquiring CMPA member. The calls and inquiries they receive may involve a specific situation or larger questions pertaining to proper protocols.
If a member of the CMPA experiences a medico-legal complaint, they can contact the CMPA for assistance. If a claim is filed against one of their members, they will assess the validity of the case and determine whether or not they believe it is defensible by considering factors like whether or not the standard of care was met and if the victim’s injuries were caused by the accused physician’s actions or inactions. In order to make these individual case validity determinations, the CMPA employs a council that has full discretion to provide or deny protection to a member based on their assessment of the case. They also have the right to terminate assistance to a member without reason. If the CMPA determines that the case is defensible, they will support their member throughout the entire litigation process and fight the claims made against them. The only claims they will settle before litigation are indefensible claims. Their protection is provided strictly on a discretionary basis, and there is no certainty of coverage provided to members.
Another critical difference between the CMPA and an insurance company pertains to the monetary amount of assistance offered. Insurance companies typically place a cap or limit on the amount of money they will provide to a customer who submits a claim. The CMPA, on the other hand, has no limit or ceiling to the monetary value of assistance it will provide. The CMPA does not use policies or protocols in order to determine who will receive assistance. It again defers to the judgement of the CMPA Council and their discretionary authority.
The CMPA has repeatedly and loudly denied that it is an insurer. In a statement of defence it submitted, it argued that it was not a legally defined insurer and, instead, described itself as “a not-for-profit medical mutual defence organization.” The CMPA stated that its bylaws allow it to “consider an application for assistance and to decide whether it will grant assistance and, if so, on what terms.” Finally, because the CMPA was established by virtue of an Act of the Canadian Parliament, it is designated as a Special Act corporation. This means it is not regulated as an insurer.
The CMPA’s Funding
The CMPA is funded partially through annual membership fees. CMPA membership has increased dramatically over the past several decades, nearly doubling from the 1980s to now. They have over 104,000 members who pay premiums. Additionally, the CMPA also receives funding through financial investments. As stated on the CMPA’s website: “Through prudent investments, the Association is able to reduce the fees charged to members by roughly one third. Funds held are used—on behalf of members—to compensate patients harmed by negligent medical care (fault in Québec), support members facing medico-legal difficulties and advance safe medical care.” Members are provided with fee credits which lower the cost of their membership fees. In 2020 and 2021, members received over $40 million and over $95 million in fee credits respectively. The amount of fee credits is expected to increase in 2022, resulting in even lower fees for its members.
The CMPA also receives funding from the provinces’ and territories’ taxpayers. This began in the 1980s, alongside rising malpractice costs. A deal was reached with the provinces that capped malpractice fees and required taxpayers to pay the remainder. This taxpayer contribution to the CMPA amounts to hundreds of millions of dollars across Canada.
Calls for Reform
Calls for reform have been made at various levels of the Canadian government, starting, most notably, in the late 1990s when the Ontario Physician Services Agreements, the Ministry of Health, and the Ontario Medical Association agreed that seeking alternative options for liability protection coverage for physicians was important. In 2017 at the Canadian Medical Association’s annual general council meeting, an overwhelming majority of physicians voted to review the medical liability system in an effort to identify other options that may be more affordable and better protect both physicians and patients.
Standing Up Against the CMPA
The complex nature of medical malpractice litigation combined with the protection provided to physicians by the Canadian Medical Protective Association amount to an extraordinarily difficult path to justice for patients who have been injured to recover the compensation they deserve. Finding an experienced lawyer who has a stellar reputation, an outstanding track record, and works for an established law firm is vital to the success of your claim.
Klein Lawyers Can Help
The team at Klein Lawyers works to help victims and their families recover the compensation they deserve for the losses caused by medical malpractice. Our law firm has extensive experience handling complex litigation, and we will draw upon our knowledge, resources, access to experts, and determination to build a claim for damages on your behalf. We’ll conduct an in-depth investigation of the evidence in your case, use medical experts to determine the key details of the injury that occurred, identify if the standard of care was breached and who breached it, and then fight for you to receive the compensation you deserve. Our aim is for you to be able to focus on your life, while we focus on your case.
If you suspect that you or a family member suffered harm as a result of medical malpractice, we can help. For more than 20 years, our team has been advocating on behalf of clients in a wide range of complex legal matters.
Contact Klein Lawyers at (604) 874-7171 today for a free consultation with a Vancouver medical malpractice lawyer. We serve clients throughout British Columbia including Abbotsford, Burnaby, Coquitlam, Langley, Surrey, and other areas. There’s no obligation, and it’s completely confidential. We’re here to help victims of medical malpractice receive the justice they deserve.