Law Times

www.lawtimesnews.com LAW TIMES 12 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 BY SHANNON K ARI For Law Times F ollowing an increased pub- lic spotlight on the length of time it often takes for medical malpractice litigation to wind its way through the courts in Ontario, the province com- missioned retired Court of Ap- peal Justice Stephen Goudge in the spring of 2016 to examine the issue and look for solutions. The request was made just months after the former judge was also asked to examine ways to make the complaints process against doctors more efficient. The medical liability review was delivered to the province in December 2017. As he explained in the intro- duction to his 65-page report, "I am to seek ways to reduce those costs and increase the efficien- cy of dealing with those cases, while ensuring that patients in- jured through medical mistake receive appropriate and timely compensation." In his review, Goudge noted that the "total case costs" for medical liability legal proceed- ings had increased by more than 500 per cent in Ontario in the past 25 years, even though the number of individual cases had not increased significantly dur- ing that time period. The report, which followed consultations with more than two dozen organizations and in- dividuals, contained a number of recommendations. They included enhanced case management in these types of cases with a standard protocol to follow, judges who are special- ized in medical malpractice liti- gation and a call for the province to take the lead in "risk manage- ment" in this area. More than a year after the province received the report, there have not been any sub- stantive steps taken in response to the recommendations. In fact, the then-Liberal provincial government did not make the report public until last spring, four months after it received the findings. The complaints pro- cess report was released at the same time, two years after it was completed by Goudge. The provincial Conservative government, elected last June, has also not said much publicly about proposals to increase ef- ficiencies in the civil litigation process, including in the area of medical malpractice claims. A spokesman for the Min- istry of the Attorney General, in response to a request by Law Times for comment about the suggestions in the review, says it will defer to the Ministry of Health and Long-Term Care, since it commissioned the report by Goudge. Paul Harte, a lawyer who spe- cializes in medical malpractice claims, says that while some of the recommendations made by Goudge were "aspirational in nature," the report should not be ignored by the province. "What we need to do is look for the most efficient way of compensation" for people who have suffered injuries through medical error, says Harte, who heads Harte Law in Richmond Hill, Ont. "There are too many trans- actional costs. At the end of the day, victims might see 35 cents on the dollar. The rest goes to lawyers and doctors," he notes. Judges who preside over med- ical malpractice cases should have "aggressive case manage- ment powers," says Harte. "One of the biggest frustra- tions is setting timetables for ex- pert reports. Sometimes, inex- perienced counsel will file them too late. This cuts across both sides of the bar," he says. Ryan Breedon, a civil litigator in Barrie, Ont., agrees that case management is one aspect of the Goudge report that could be implemented relatively quickly. "Some type of case manage- ment, with timetables from day one, could be set up for medi- cal malpractice cases. It would not require substantive changes to the law," says Breedon, who heads Breedon Litigation and is the medical malpractice section chairman for the Ontario Trial Lawyers Association. "In these cases, the plaintiffs have generally suffered serious consequences and often do not have access to benefits before trial. If cases are delayed, it can have a huge impact on plain- tiffs," says Breedon. "The number of medical mal- practice cases is relatively small, but they can be complicated and the plaintiffs are particularly vulnerable," he says. Breedon points to an Ontario Superior Court pilot project that takes effect on Feb. 1 as some- thing that will hopefully be ap- plied more widely. The "one-judge model" proj- ect requires lawyers representing the parties in a civil action to ap- ply for inclusion to the regional senior judge. If accepted, a judge will be No substantive steps in response to Goudge report MEDICAL MALPRACTICE LAW Paul Harte says judges who preside over medical malpractice cases should have 'aggressive case management powers.' See Specialized, page 13 CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online L awyers representing families alleging that Ontario based nursing home operator, Revera Inc., breached its duty of care to its elderly and infirm residents, announced last Decem- ber that they would be discontinuing an appli- cation for class action and instead proceeding under a mass tort. This decision highlights what appears to be the increasing trend towards mass tort claims in the Province of Ontario and away from class action lawsuits in certain circumstances. Like a class action, a mass tort involves multiple Plaintiffs, or people, who have been injured by the same defendant or defendants. The key difference between the two approaches involves the manner in which class actions and mass tort lawsuits are com- menced and resolved. In a class action, a single lawsuit is filed by a rep- resentative Plaintiff on behalf of an entire group of people who suffered harm as a result of the actions of a Defendant or Defendants. This means that the en- tire group of Plaintiffs are treated as one, and the lead Plaintiff sues the Defendant on behalf of the entire class. After the claim is filed, lawyers for the proposed class must bring a Motion for Certification. Should the class be approved, an opt-out period for prospective class members is given. Individuals who fail to opt-out will be deemed members of the class. Regardless of the manner by which a class action is resolved, either by settlement or judgment, individual class members will be bound by the decision and dam- ages apportioned based on the terms of the resolution. In contrast to a class action, mass tort claims are filed individually on behalf of each claimant. As such, there is no requirement for the often lengthy and costly process of bringing a Motion for Certification before the Court. By avoiding the need for certifi- cation, Plaintiff counsel has the added advantage of being able to expedite the litigation process and in so doing, move to the Discovery stage sooner. In ad- dition, lawyers representing Plaintiffs in a mass tort must only be concerned with the individuals who have retained their services and need not consider unknown class members. In resolving mass tort claims, individual Plaintiffs are given the opportunity to exercise control over their own outcome. Plaintiffs are able to accept or reject a settlement offer, or make the decision to pro- ceed to trial on their own issues. Damages are there- fore assessed on individual circumstances and not on the basis of the group as a whole. Given the increasing number of high-profile claims involving multiple claimants in our Province, it will be interesting to see how these competing approaches are utilized by lawyers. The Reverea claims are a good ex- ample where counsel has weighed the advantages and drawbacks of both mass tort and class action lawsuits, and elected to proceed by way of mass tort. By Mike Wolkowicz Hernia Mesh Class Action Sponsored by Untitled-10 1 2019-01-30 11:19 AM

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