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The words invoke dread and fear for doctors and lawyers alike. It's an area of law so replete with myth and illusion that most new lawyers are outright discouraged from dipping their toe into such purportedly dangerous waters. There is certainly no shortage of those willing to share their own horror stories, largely at the expense of the Canadian Medical Protective Association ("CMPA") and its cadre of lawyers. Still more who are eager to supply the endless stream of doomsday statistics drawn from the latest annual report generated by the CMPA. Though still relatively new, I have witnessed first hand the devastation that results from an unfavourable jury verdict.

Yet despite the inherent difficulties of prosecuting a medical malpractice claim, with the proper preparation and management, even an unseasoned or inexperienced lawyer can feel confident working in this field.

For most, the file begins with a cold call from a prospective client who complains of mistreatment at the hands of their physician or medical specialist. Inevitably, the tale told by the client is littered with inequities; a veritable mixture of bad medicine and poor bedside manner. When coupled with a terrible outcome, it is extremely tempting for the new lawyer to draw all of the wrong conclusions. After all, don't bad outcomes point to bad medicine?

Unlike other areas of plaintiff's work, injury in the medical context does not bespeak negligence. For the new lawyer, the key to building a solid case is to remain grounded and avoid the logical fallacy known as post hoc ergo propter hoc (after this because of this). Stated simply, never assume that because B follows A, A caused B. By implication, most clients who call about a potential malpractice claim have suffered a poor outcome. It doesn't follow, however, that the outcome was precipitated by medical negligence. It is easy for a patient to become blinded by this fallacy of coincidental correlation but imperative that their lawyer not be so readily deceived.

Avoiding this pitfall requires the lawyer to obtain as detailed a medical history as possible. While the history can't entirely substitute for the medical records, it provides an inexpensive jumping off point for researching the claim. Armed with the client's history, the next step is to attend the nearest medical library where the lawyer can compare the facts provided against the objective medical information.

When reading the medical literature, a new lawyer ought to be particularly mindful of the established indications and contraindications for the impugned procedure and its associated risks. These areas serve as benchmarks against which the client's claim can be readily measured. Finally, time should be spent reading legal judgments that involve similar facts to those at hand. Past decisions can provide valuable information about the strength of the potential claim and the names of experts who might be retained to provide an opinion.

Obviously, this initial investigation can require a significant investment of time and energy. For that reason, the second key for the uninitiated lawyer is to reverse their law school thinking by assessing damages before liability. While the client's fixation on the medical outcome is unavoidable, it is the financial implications of the client's injuries that will dictate whether a claim is worth pursuing. With few exceptions, if the facts obtained from the client do not support a substantial award of damages, the unseasoned lawyer would be well advised to decline the retainer.

Not surprisingly, few if any calls should result in immediate legal action. With a two year limitation period, every potential claim must be pre-screened against the foregoing medical, legal and financial threshold to ensure that the claim is worth prosecuting. The failure to do so will inevitably result in false hopes and pointless litigation.

If after a basic review, it appears the case has merit, the next step is to collect the remainder of the medical records and obtain the initial expert's report. As a neophyte, there are two reasons why I require my clients to fund these initial disbursements. First, it tends to expose the unreasonable patient/client at the outset of the legal process.

While I have no doubt that there are many impecunious clients with valid legal claims, a lawyer should be suspicious of any client who is not willing to invest even a token amount in their own cause. Second, no matter how indepth the initial research, a medical malpractice claim stands no chance of success without an expert opinion. Since not every opinion will be favourable, to expend money on each potential claim would place a significant financial burden on any legal practice.

In any event, once the records have been acquired, reviewed and a favourable opinion obtained, the new lawyer can be reasonably confident in their decision to initiate proceedings. Nevertheless, as a final precaution, the client must be braced for the harsh realities of medical malpractice litigation.

In 2003, 1,387 legal actions involving physicians were concluded. Of those, seven per cent ended in judgments for the doctor while only two per cent favoured the plaintiff. According to the CMPA, the average legal action lasted three to four years. While each legal action is unpredictable, the client should be advised that costs could reach a quarter of a million dollars or more. Notwithstanding these stark statistics, it is often overlooked that 32 per cent of medical malpractice claims were settled in 2003 for an average amount of $296,600 per case. So while every client should be informed of the vigorous defence that can be expected, no client should be dissuaded if the claim has merit.

Lastly, as an inexperienced practitioner in this area, there will be no shortage of fear that you are out of your depth facing an opponent that is far more seasoned and better funded than you or I could ever hope to be. The keys to overcoming those fears rest in constant medical and legal research. For each challenge that is overcome, confidence will build and professional satisfaction will follow.

[This article is reprinted with permission and first appeared in the May 2011 issue of The Lawyers Weekly. Author: Joseph Griffiths]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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