Suing doctors is costly

Suing doctors is costly
Malpractice suits are a lengthy, arduous, expensive and emotionally debilitating process

Suing a doctor for medical negligence or malpractice is not for the faint hearted.

It is a lengthy, arduous, expensive and emotionally debilitating process where success can rarely be assured.

Matthew MacGregor was born in January, 1999, “lifeless with no heartbeat and no respiration.” With aggressive resuscitation and cardiac compression his heart began beating and he took his first spontaneous, yet tentative breath at the five-minute mark of his life.

He has a form of cerebral palsy, cannot walk or talk, has severe cognitive deficits and is fed through a tube implanted in his abdomen. His life expectancy is about 30 years and he requires care almost on a 24/7 basis.

Matthew’s parents sued the hospital and obstetrician for negligence. The trial took place over a three-month period in late 2008, with a lengthy and complex decision ruling in favour of the parents released in August, 2009.

Ontario Superior Court Justice J.R. Henderson concluded the obstetrician’s negligence — wrongly intervening in the labour with forceps — caused Matthew’s injuries.

He awarded Matthew and his parents approximately $2.6 million. That included the costs of attendant care, housing modifications, equipment and other out-of-pocket expenses.

It may sound like a lot, but after expenses, it won’t make the MacGregors wealthy, nor will it make right what went wrong during Matthew’s delivery.

No easy task

Winning the lawsuit was no easy task. The obstetrician didn’t admit liability or wrongdoing. His lawyers put Matthew’s mother through a vigorous cross-examination.

They put forth expert witnesses to argue the absence of negligence, that at worst the obstetrician made mere errors in clinical judgment, and that even if negligence occurred, it didn’t cause Matthew’s injuries.

The trial judge had to wade through very complex medical testimony before reaching his decision.

But winning at trial didn’t result in any money being paid because the obstetrician has appealed the decision.

The appeal will be argued in March. Therefore Matthew has now lived almost half of his life expectancy without the resources the court award would have allowed.

The MacGregor case provides a good illustration of why our system of compensation for medical errors must be reformed.

The lawsuit was commenced in 2000, yet it took eight years to reach trial. Matthew was 10 when the trial decision was released. He will be 13 when the appeal is argued and likely 14 when the appeal decision is released.

Imagine the absurdity if the appeal decision is then appealed to the Supreme Court of Canada.

And who benefits from this litigation? One hopes the MacGregor family won’t lose the appeal and will benefit financially from the court award, but whatever they ultimately recover will be reduced by significant legal fees, as well as fees paid to their expert witnesses.

It seems lawyers benefit the most from most medical negligence litigation.

The Canadian Medical Protective Association, the body that provides professional liability protection for Canadian physicians has released a report which summarizes money paid out on medical claims during the five-year period 2006-2010.

During that period $816 million was paid out in settlements and court awards, but an additional $371 million was paid to lawyers on the claims.

That’s a whopping 31% of the money paid and doesn’t cover the legal fees paid by the plaintiffs.

Legal expenses

When you add in the fees paid to plaintiffs’ lawyers and the costs of expert witnesses, along with all of the other costs of the litigation, it seems injured people, like Matthew and his parents, receive only about 33% of every dollar expended in dealing with medical negligence claims.

Any system that can take more than a decade to resolve a case and rewards lawyers more than injured parties is pretty pathetic.

Source: Alan Shanoff ,Toronto Sun First posted: Saturday, February 04, 2012 07:17 PM EST