Law Times

www.lawtimesnews.com LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 13 assigned to preside over all pre- trial hearings, case management conferences and the trial. A different judge will be in- volved only if there are settle- ment discussions. The complexity of the litiga- tion, potential broader public interest issues in a case and the number of parties involved are some of the factors that will be considered in deciding whether the one-judge model is put in place for a specific legal action. The report issued by Goudge also looked to other jurisdic- tions such as British Columbia, where there are mandatory case planning conferences required at an early stage. "Such a step could be of great assistance in focusing counsels' attention, reducing case dura- tions and consequent transac- tion costs and providing more timely compensation to plain- tiffs in meritorious cases," he wrote. Specialized judges, similar to the commercial list currently in Toronto, may be an option worth implementing, noted Goudge in his report. "Medical liability cases al- most always have features that tax expeditious disposition. The issues are complex and often highly specialized. The produc- tions can be voluminous. The experts are frequently numer- ous. And skilled counsel on both sides battle hard because so much is at stake," he wrote. In addition to more case management and judges with experience in presiding over medical liability litigation, Harte says, he would like to see the cre- ation of a "screening court" for these cases. "In some parts of the United States, you can't bring a claim without getting permis- sion from the court," he notes. While it is a relatively low bar to get permission, Harte says it helps weed out claims that do not have merit and also in- creases the chance of resolving legitimate ones in a more timely fashion. In a civil court system in On- tario that is already stretched in terms of its resources, giving more priority to medical mal- practice litigation is not a path that everyone thinks should be followed. "If you go to any sub-speciality in the litigation bar, it would be nice to have judges with special expertise. But these are not ad- ministrative tribunals. It is sup- posed to be a court of general jurisdiction," says Lee Akazaki, a partner at Gilbertson Davis LLP in Toronto and a director of the Canadian Defence Lawyers. As well, he says, any changes to the administration of medical malpractice should not reduce access to the courts for lawyers acting for clients in other areas of civil litigation. "Right now, we have to go to clients and say we will be able to open discoveries, but a trial is going to be three or four years down the road. The product we are selling is not an attractive one in terms of access to justice," says Akazaki, who adds that this also impedes settlement discus- sions. "If the day of reckoning seems hypothetical, the case is more prone to be dragged out. The more real it becomes, the more likely it will settle," he says. One of the reasons that Goudge called for the province to take a greater role in "risk management" of medical mal- practice cases is because of the way defendant doctors are fund- ed. They are represented by law- yers retained by the Canadian Medical Protective Association. Since 1987, the province has agreed to cover what Goudge re- ferred to as a "very large propor- tion" of this cost by reimbursing physicians for most of their fees to the CMPA. The Toronto Star has reported that, in 2014, the reimbursement was almost $200 million or 81 per cent of the total cost. According to Harte, this funding agreement reduces the incentive for medical malprac- tice defendants to agree to settle- ments. "The CMPA over the years has taken a scorched earth ap- proach, which prolongs litiga- tion," he says. It also reduces the likeli- hood that certain claims will be brought unless there is a signifi- cant dollar value involved be- cause of the cost of any medical malpractice case, he says. The core statement of the CMPA is that "it protects the professional integrity of physi- cians, promotes safe medical care, and appropriately compen- sates patients." Harte believes too much of the organization's focus is on the professional reputation of indi- vidual doctors. "It should be changed to 'compensating victims of medi- cal mistakes.' There is no 'public interest' in a doctor's reputa- tion," he says. LT Specialized judges may be worth considering MEDICAL MALPRACTICE LAW Ryan Breedon says that enhanced case management is one aspect of the Goudge report that could be implemented relatively quickly. Continued from page 12 "Medical liability cases almost always have features that tax expeditious disposition. The issues are complex . . ." Justice Stephen Goudge Your injured client needs more than a settlement. STRUCTURE IT EVERY TIME. 1.800.265.8381| www.mckellar.com Advocate for certainty. Your client will thank you. Untitled-8 1 2019-01-30 10:26 AM

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