Law Times

Law Times • June 24, 2013 Time to consider no-fault medical injury compensation T he Supreme Court of Canada decision in Ediger v. Johnston released this April once Social again exposes the deficiencies in our Justice medico-legal tort system. Cassidy Alexis Ediger was born on Jan. 24, 1998, at the Chilliwack General Hospital in British Columbia. The pregnancy was high risk. The obstetrician, Dr. William G. Johnston, decided to induce her birth. But the induction process didn't proceed as planned. The mother's labour stalled with the baby's head positioned sideways. Johnston decided to proceed with a forceps delivery. Such a delivery was Alan Shanoff risky because the baby was still at the beginning of the birth canal and her head had to be rotated first. Johnston failed to inform the mother of the risks inherent in such a delivery and neglected to inquire into or arrange for surgical backup to be available for a potential C-section. As it turned out, the forceps delivery didn't go smoothly and Johnston decided to proceed with a C-section. Not having previously made arrangements for the C-section, Johnston left the labour room to obtain an anesthetist to assist with the surgery. Cassidy was ultimately delivered 20 minutes after the failed forceps attempt, but in the meantime an obstruction in the umbilical cord had sparked a drop in her heart rate that in turn caused severe and permanent brain damage. She can't speak, requires tube feeding, and uses a wheelchair. Her cognitive functioning may achieve the level of a four- or five-year-old child. She's totally reliant on others for her daily needs and has a shortened life expectancy. Medical malpractice lawsuits are notoriously slow and expensive and this case was no different. The trial took place over 22 days in March and April 2008. A decision awarding $3.25 million that concluded the obstetrician was negligent dates back to March 2009. Johnston appealed the finding of liability as well as the amount of the award. He didn't challenge the trial judge's conclusion that he had performed below the standard expected of a reasonably competent obstetrician. Instead, he raised the causation issue as he denied his negligence caused the injuries. The parties argued the appeal over a two-day period in October 2010 with a judgment released the following May. The British Columbia Court of Appeal allowed the appeal after concluding causation hadn't been established. In doing so, the appeal court chose not to review the amount of the award. The unanimous decision of the top court released in April reversed the B.C. appeal decision. It rejected the narrow approach to causation adopted by the B.C. Court of Appeal. The top court agreed with the trial judge that had Johnston taken proper precautions to have surgical backup immediately available or informed the mother of the high risks of an attempted forceps delivery, the procedure would have taken place in a time frame that would have prevented the brain damage from occurring. But even after 15 years, the litigation continues. The top court sent the case back to the B.C. Court of Appeal to consider Johnston's appeal of the quantum of the award, something the B.C. judges could have and should have done previously. This case displays all that's wrong with the use of the tort system to resolve medical malpractice cases. Cases take too long. While this case is near the upper limits, many difficult cases take at least five years. Cases are also too expensive to pursue. While lawyers take on many serious malpractice cases on a contingency basis, there's no doubt that even relatively simple matters are very expensive to pursue and defend. From 2007-11, figures released by the Canadian Medical Protective Association noted it paid an average of $166.8 million per year in awards and settlements. But the association also paid out an average of $89.4 million a year in legal costs and expert fees. For every dollar going to a victim, it paid 53 cents to its lawyers and experts. That's hardly an efficient use of resources, particularly once we factor in plaintiff 's legal fees and disbursements. The results of cases are difficult to predict. There's much uncertainty and many cases drag on to appeal. This creates additional stress for victims and their families as well as the defendants. A fault-based tort system is unfair to plaintiffs who are unable to establish fault or causation, a situation that results in many victims of malpractice receiving no compensation. In addition, the current system discourages the reporting of errors. As a result, many victims aren't aware of their right to pursue compensation. Other jurisdictions, including Sweden, France, New Zealand, Norway, and Finland, have forms of no-fault medical injury compensation. It's time we took a serious look at this option for Canadian jurisdictions. LT COMMENT Page 7 Harper hoping for better days as session ends P rime Minister Stephen Then Harper faced yet another Harper did the right thing challenge. His own backbenchThe Hill last week by closing down ers began turning against him. It Parliament for the summer. was like the days when the Liberal Everything has been getting backbench turned against former worse by the day for him with elecprime minister Jean Chrétien and tion scandals, police investigations, began lining up with Paul Martin. court cases, and backbenchers in Some of the revolting MPs chalrevolt. In fact, things have been golenging Harper were old-time ing badly since the year began. anti-abortionists who were angry Back in January, there was the Richard Cleroux they couldn't get their ideology on crisis with the First Nations people. the agenda. Harper got out of it by promising them the world They were furious that the kids in Harper's and once again they bought it. They're still wait- office were telling them what to do, how to ing for the water, housing, schools, roads, and ev- vote, what to say, and when to say it. erything else they need. So it's the same old story But Harper fixed them. He appointed a from another smooth-talking white man. 36-year-old as his new chief of staff. Then came the budget. The jobless got less By mid-June, they were heading for open rethan nothing. They'll have to accept jobs at less volt. One of the dissidents, the very classy Brent pay an hour away from home. Rathgeber, quit the caucus. A number of his colTry that when you've got two kids to get to leagues congratulated him on his style and class school and need to drive back home at night. in leaving. It wasn't a fun year for Harper, either. He spent Luckily, Harper was able to head off to a most of his time defending himself against ac- summit in South America. It was more show cusations that he stole the last election through than substance, but at least he wasn't in Ottawa questionable robocalls. And the investigations taking abuse and watching the revolt grow. are still going on. Backroom conservative MiAnd then the Senate scandal got worse and chael Sona, who could face election fraud charges the cops moved in. So Harper took off for a in Guelph, Ont., this summer, keeps telling ev- summit in Europe. The summit produced little eryone the party is making him its fall guy. and certainly not the promised free-trade deal In the meantime, the Senate spending scan- but it bought a little more time. dal keeps getting bigger and has spilled over How much more could Harper take? into the prime minister's office. That doesn't And then there were the polls. Harper was look right. down to second place after Trudeau and slidNDP Leader Thomas Mulcair is getting ing slowly towards the third-place NDP. What tougher as he acts more like a Crown prosecu- a horse race. tor with an accused on the ropes. The Liberals It must be time to head for the cottage. That's a also gave Harper a new focus after they changed lot better than the daily beatings in the House of leaders and the Conservative slime factory on Commons and on the evening news. Lancaster Road began churning out new attack So it fell to ministers Peter Van Loan and ads on Liberal Leader Justin Trudeau. Christian Paradis to say goodbye to the camBut they didn't seem to go over so well, at eras on Wednesday as they put their best spin least not as well as those old ads of the puf- on matters. fin pooping down on former Liberal leader The government had passed more legislaStéphane Dion's shoulder. They still howl tion, 29 laws in all, than ever, they said. But with laughter at that one over at Conservative who remembers any of them except the cuts headquarters. to employment insurance that they of course Even the ad making Trudeau out to be didn't mention at all. But they did mention a some kind of metrosexual who teaches drama tax agreement with nine countries, including to kids didn't have the expected bite. What's the Zambia. That's impressive. matter with people? Don't they have it out for There wasn't a word about the missing $3 gays anymore? billion or about booting crooks out of the SenThis was about the same time the news ate. We also didn't hear about Harper's earlier came out that the Conservative government promise never to appoint unelected senators. had lost $3 billion and couldn't find it. Finance So far, Harper has appointed 59 unelected senMinister Jim Flaherty kept saying the govern- ators. That's more than any other prime minisment hadn't lost it. It was just a different ac- ter in history. counting system, he insisted. Maybe they lost What's next? Well, there's a big motivational the accounting system as well. party convention in Calgary at the end of the Cutbacks to environmental programs and month to get everybody marching in step the public service, humanitarian issues, and in- again and boost their spirits. Then come the creasing military costs without anything yet go- rewards of lots of new cabinet appointments ing up into the sky dominated the parliamentary to bring in newer, happier faces for the fall. LT session. The nastiness and pettiness were worse than the days when former prime ministers John Richard Cleroux is a freelance reporter and colDiefenbaker and Lester Pearson battled each umnist on Parliament Hill. His e-mail address is other relentlessly. richardcleroux@rogers.com. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. www.lawtimesnews.com

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