Medical Malpractice—Is There a Crisis?

Introduction:

Educators should be chosen not merely for their special qualifications but more for their personality and their character because we teach more by what we are than by what we teach. (William James Durant)

In December, 1986,I asked a number of senior educators and businessmen whom they thought I might go to visit, someone that was an outstanding leader in the field of education. Many people suggested Rob Prichard, Dean of the University of Toronto Law School.

He was kind enough to spend several hours with me, giving me his views on a critical issue that had to do with independent schools of that day. I was reading my letter of thanks to him and noted that I said to him: … it is no doubt a tremendous source of satisfaction to you to see your faculty continue to keep your law school in the forefront of such educational institutions in this country and to attract the very best students.

He was excited about his job because, he said, it kept him in touch with some 1,200 professionals, where every day he stood to learn from their intellectual curiosity and creativity.

Rob Prichard is a Canadian, born in 1949, married and the father of three sons. He is a family man.

As you would expect, he is also a scholar, educated at Upper Canada College; Swarthmore College, where he received an honours degree in economics in 1970; the University of Chicago, where he received his MBA in 1971; the Faculty of Law at U of T where he was awarded his law degree in 1975; and the Yale Law School, where he received his Masters in Law in 1976.

Awards and prizes were many.

He received the 1975 Angus MacMurchy Gold Medal for standing first, the Dean Cecil A. Wright Key Prize, the McCarthy and McCarthy scholarship, and the Davies Ward Beck Prize. He was a member of the team that won the Canadian International Law Moot competition in 1974. In Graduate School, he received the Viscount Bennett Fellowship in 1976 and the Yale Law School Fellowship in 1986. As a scholar he has written many articles and books. He has stood before many impressed audiences.

He has been teaching law since 1976. He has been a visiting professor at both Yale and Harvard. He has been an associate at the Centre for Industrial Relations at U of T. He was appointed Dean of the Faculty of Law at U of T in 1984.

Many of you will know that that great Law School was founded by a man we refer to as Caesar Wright. I can recall, on one occasion, a number of students re-entering the building after a boozy afternoon at the Jolly Miller tavern in Hogg’s Hollow. As we entered the doors, a few people were overheard to say "Hail Caesar"’

"For once," said the Dean as he made his exit, "you’ve got something right."

The law school was also, for a time, the home of Bora Laskin who became such an outstanding Chief Justice of Canada. Our guest spearheaded a campaign that raised more than $10 million for the faculty’s new law library named after the late Chief Justice. It will be one of the most impressive libraries in North America. Toronto Life recently praised Prichard as being enormously able and, at age 39, someone to keep an eye on for even greater things.

The Dean is, of course, involved in a wide variety of activities, not the least of which is acting as Chairman of the Committee of Ontario Law Deans and Governor of the Canadian Law Scholarship Trust. He is also a member of the Board for the Ontario Centre for International Business.

More publicly, this fine lawyer is a member of the Ontario Law Reform Commission and, from 1977 to 1986, was Vice-Chairman of the Crown Employees Grievance Settlement Board for the province of Ontario. He was Director of Research for the Alaska Highway Pipeline Inquiry in 1977 and is a consultant to a number of government agencies in the area of competition policy and consumer and corporate affairs.

And one of his interests has been as Chairman of a government review of Liability and Compensation issues in health care. His topic today will be:

Medical Malpractice – Is There A Crisis?

Before calling on him, I would like to quote Daniel Webster, who said: Justice, sir, is the greatest interest of man on earth …

And also the late U.S. president Dwight Eisenhower:

. .. that the clearest way to show what the rule of law means to us in every day life is to recall what has happened when there is no rule of law – the dreaded knock on the door in the middle of the night.

Dean Robert Prichard:

About 16 months ago I was invited by the governments of Canada to inquire into and report on the issues surrounding medical malpractice in Canada. In formal terms I am the chairman of the Federal-Provincial-Territorial Review on Liability and Compensation Issues in Health Care. Today I want to share with you the principal findings of my inquiry and indicate the avenues of reform that, at this stage, appear most promising to me. I must make my final report to the Conference of Deputy Ministers of Health in June and I will be very grateful for any reactions or suggestions you may have.

In choosing to devote this distinguished forum to the issue of medical malpractice, many of you may think I have chosen too narrow a topic, one of interest perhaps to the members of the Toronto Medico-Legal Society but not one of compelling concern to the broad sweep of interested citizens represented by the Empire Club.

However, I want to suggest in my remarks today that the challenge presented by medical malpractice is but a microcosm of the much broader phenomenon of personal injury and disability in Canada. And how we deal with these victims, regardless of the source of their injury or disability, will tell us much about our society, as one of the most compelling tests of a liberal democracy is to ask how it treats its least advantaged members. My remarks are divided into three parts: the background to the problem, the principal findings _ of my inquiry, and the implications for reform.

(A) The Background

Until the latter part of the 1970s medical malpractice was not understood as a serious problem for Canadian physicians. While the United States experienced its first medical malpractice crisis in the mid-1970s with greatly increased levels of litigation, damages and insurance premiums, Canadian physicians were largely spared the agony. Since the turn of the century most Canadian doctors have been members of the Canadian Medical Protective Association (CMPA), a selfdefence organization that had provided them with first-class legal advice and defence at a very modest cost. While there was some growth in the number of claims in Canada in the early 1970s, the total number of successful claims across Canada never exceeded 100 in a year before 1980 and it was generally accepted that medical malpractice was one problem that we did not face in acute form.

By late 1987 when I was appointed, the situation, at least as perceived by the medical profession, had changed sharply. The number of lawsuits against doctors had increased rapidly; insurance rates for doctors had increased dramatically; newspaper headlines regularly reported large personal injury judgments; and many representatives of doctors voiced their anxieties and concerns. Many began to suggest the increased litigation activity was damaging to the Canadian health care system, inflicting costs and distorting therapeutic and clinical judgments.

The cries from the medical profession were joined by some members of the judiciary. Led by the Honourable Mr. Justice Horace Krever, these judges suggested that there was an urgent need for reform. This convergence of medical and judicial concerns about the current system of medical malpractice litigation found a sympathetic ear in the governments of Canada and they in turn created my inquiry with a mandate to measure and understand the major trends in this area and to make recommendations for reform.

(B) The Principal Findings

What then are the actual facts about the growth and current state of medical malpractice litigation in Canada? Let me share with you my seven principal findings.

First, by any measure there has been a significant escalation in the liability of health care providers in Canada over the past 15 years. Furthermore, this increase in medical malpractice litigation has been more severe than the increases during the same period in litigation against lawyers, accountants, architects, dentists, engineers and other professionals.

In gross terms the increase in litigation frequency has been about six-fold during the past 15 years. However, if the increase is adjusted for the growth of the number of doctors in Canada during this same period and the rising percentage of doctors who are members of the CMPA, the increase is only about two-fold. Furthermore, if one also takes account of the fact that doctors are providing significantly higher levels of services per physician today as opposed to 15 years ago, then 80 per cent of the growth in the number of claims against the physicians can be explained as a simple function of the number of medical services provided.

Put differently, the overwhelming portion of the growth in litigation against physicians is a direct result of the increased number of physicians in Canada and the increased number of services each physician is providing. In simplest terms, as health care expenditures grow, medical injuries grow and medical malpractice claims grow.

The second major finding is that the growth in medical malpractice claims over the past 15 years has occurred despite the absence of any important changes in the relevant law. A patient can only succeed in a suit against a doctor where the patient is able to demonstrate that his or her injuries have resulted from negligent conduct. This has been the test from the earliest days of medical malpractice litigation and it continues to be the fundamental rule across Canada today.

The one area in which the law has changed deals with the doctrine of informed consent. Here the Supreme Court of Canada in the past decade clarified and enlarged the rights of patients and the obligation of physicians to ensure that patients fully understand the medical procedures to which they consent. While these decisions of the Supreme Court did introduce meaningful change in the law, that change accounts for only a tiny portion of the growth in claims that we have experienced.

The third principal finding is that accompanying the growth in medical malpractice claims has been an even more rapid increase in insurance costs for doctors. This increase has been real, significant and disturbing for physicians. The rapid increase occurred for three reasons. First, the actual number of claims has increased. Second, in the early 1980s, the CMPA introduced risk rating of different types of practice and assigned higher membership fees to the higher-risk types of practice including anaesthesia, neurosurgery, orthopedics, and obstetrics. Third, again in the early 1980s, the CMPA decided to begin to reserve funds against future liabilities instead of following its previous practice of meeting current payments out of current revenues.

These latter two decisions – risk rating and reserving – were based on prudent insurance principles but they had the effect of greatly accelerating the rise in insurance costs for physicians in the high-risk categories. Some specialists experienced rate increases as high as a forty-fold increase over a small number of years. Where the fees had previously been of the order of $250 annually, they had quickly escalated to the neighbourhood of $10,000 per year per physician.

This rapid fee increase would be disturbing to physicians at any time but it came at a particularly inopportune time in that it coincided with the ban on extra billing with the result that physicians were deprived of a possible means of passing on the costs just at the moment they were experiencing the most acute cost pressures.

The growth in membership fees was taken by many physicians as clear evidence that there was a rapidly escalating crisis of malpractice suits against doctors. In this respect, the membership fees were somewhat misleading in that they had increased at a much higher rate than the litigation activity itself. But understandably, physicians and other observers armed with little other information relied on the increased membership fees as the best evidence of the developing crisis.

Fortunately there has been a significant easing of the insurance cost pressures over the past couple of years. Across Canada the provincial governments have responded to the situation by agreeing in one form or another to share with physicians the burden of the increased insurance costs. While the particulars of the arrangements struck by negotiation between doctors and governments across Canada vary, it has become widely accepted as unfair to leave the full burden of these increased costs on physicians, and governments have accepted a portion of these costs as an appropriate factor in adjusting the fees schedule annually. This has significantly dissipated the financial pressures associated with the increased membership fees although it has not eliminated the widely held impression among physicians that there has been far too rapid an increase in the levels of malpractice litigation against them.

My fourth principal finding is that medical malpractice litigation is very expensive. This came as no surprise. Medical malpractice litigation is among the most complicated, time consuming, demanding and complex kinds of personal injury litigation. The issues are inherently complex; the injuries are frequently very serious; professional reputations are usually at stake; scientific evidence is often elusive and disputed; and the work attracts many of the finest lawyers representing both defendants and plaintiffs.

A very substantial percentage of the CMPA membership fees do not get paid to injured patients but rather are consumed by the costs of legal defence. Until 1975 the expenditures by the CMPA on legal fees were approximately equal to the payments made to injured persons. More recently, the latter have somewhat exceeded the former, but particularly when account is taken of all the legal fees, the cost of the court system and the time and energy of everyone concerned with litigation, in excess of 50 per cent of all the money spent goes to the expenses of litigation and not to the injured patients for purposes of compensation.

The fifth principal finding relates to the impact of malpractice litigation on the quality of medical and hospital services provided in Canada. It is on this subject that I received the most divergent expressions of views and it is on this subject that the rhetoric is most exaggerated. Many representatives of the medical profession claim that malpractice litigation has had deleterious effects on the whole realm of health care, alleging that in response to the threat of liability physicians have altered their conduct in ways that are not in the best interests of the patient or the health care system at large.

Some claim physicians order unnecessary and expensive tests; some claim that physicians are reluctant to try new and innovative procedures; some claim that physicians have become unduly cautious in their suggestions for treatment; some claim the burden of meeting the legal requirements has disrupted the physician-patient relationship; and some argue that physicians, particularly in higher risk specialties like obstetrics, have left the field rather than face the continuing pressures, anxieties and costs of the threat of malpractice litigation.

Those on the other side of this issue see it starkly differently. They see the threat of malpractice action as an important stimulant to physicians to behave in accordance with the requirements of first-class medical practice and to act carefully at all times in the best interests of their patients. Proponents of malpractice litigation argue that it helps keep physicians and other health-care workers on their toes and that in the absence of the threat of litigation we would risk complacency, sloppiness, inattentiveness and undue risk taking. They also point to the general inadequacies of the selfregulating mechanisms of the medical professions such as discipline committees to deal with the problem of malpractice. Thus, the critics argue, we must rely on the constant threat of a plaintiff’s action to expose physician conduct to scrutiny before a judge in order that doctors know that any time their conduct can be called into question.

In my view, the strongest claims on both sides of this issue overstate the case. It is also my view that there is an element of truth to most, if not all, of the claims that are made on both sides. There are clearly both good and bad effects of the threat of litigation. In order to measure these effects we commissioned three extensive case studies of anaesthesia, obstetrics, and family practice across Canada. But even the results of these case studies are open to competing interpretations. They provide some support for many of the allegations on both sides of the issue but, like everything else I have heard and read on this subject, make clear that what is required is a judgment which balances the good and the bad effects of the threat of litigation.

My findings on this question is that on balance the good effects of the threat of litigation outweigh the bad. That is, on balance and in simplest terms, I believe that the quality of health care provided by our physicians and hospitals is higher than it would be in the absence of the threat of litigation. I do not doubt that there are some perverse effects of the threat of litigation. However, on balance, the evidence I have read, the interviews I have held, and the consultations I have engaged in have persuaded me that the benefits of the threat of litigation outweigh its ill effects.

My sixth principal finding is that despite the growth in litigation, only a very small percentage of persons suffering avoidable health-care injuries receive compensation. In 1987 less than 250 injured patients received compensation of any kind from medical malpractice litigation, whether by way of settlement or trial judgment, anywhere in Canada. To put that number in perspective one needs some estimate of the number of avoidable health-care injuries suffered annually in Canada. While there is no direct evidence available, numerous studies done elsewhere suggest that the number of such injuries dwarfs the number of persons receiving compensation at present in Canada.

For example, in Sweden, which has a compensation system for avoidable health-care injuries, the number of persons receiving compensation on a population adjusted basis would be 7,500 per year compared to the current 250 in Canada. Similarly, if one looks to the United States, we see that 10 times the number of victims of health-care injuries are recovering compensation through litigation than is the case of Canada, and studies of medical records in both California and New York suggest that the number of persons receiving compensation through litigation is perhaps only one-tenth the number of persons suffering compensable injuries.

Thus, the Swedish data would suggest only one-thirtieth of the number of persons injured annually in Canada are receiving compensation through malpractice litigation while the American data would suggest a number as small as one in 100 are receiving compensation. Whatever the exact number, it is clear that the current malpractice litigation system in Canada is providing redress for only a tiny percentage of the persons suffering injury and requiring compensation.

This conclusion leads to my final finding which is that despite the growth in litigation over the past 15 years, there is enormous opportunity for further growth in the next decade or two in the absence of a change in our policies in this area. If even 10 per cent of those suffering injury were to initiate actions against physicians in hospitals in Canada, the growth of litigation that we have experienced in the past 15 years would seem modest indeed compared to the growth over the next 15 years.

Do these seven findings in aggregate amount to a crisis? I think crisis is too strong a word to describe the situation. But it is a serious situation that imposes significant costs, pressures and anxieties, leaves a significant number of uncompensated people, and raises significant opportunities for reform.

(C) Implications for Reform

What should we do? Can we do better than what we are doing at present? I believe we can. Furthermore, if we are to be true to the principles of social justice which have informed the development of our health-care system and our social welfare policies, I believe we must do better.

Any strategy of reform must be informed by goals against which the proposals can be judged. I suggest four benchmarks. First, what will be the effect of the proposed reform on the frequency of avoidable medical injuries? The single best thing we can do about medical malpractice is to reduce it. All proposals for reform should be informed by that simple reality. Second, will the proposed reform achieve its goal at the lowest possible cost? Third, will the reforms be fair to those principally affected: injured patients, physicians, and other health-care workers? Fourth, do the reforms move us closer to our ideals of social justice, particularly with respect to how we as a society respond to those suffering serious and unanticipated health-care injuries with a resulting significant need for compensation.

With these criteria in mind, let me sketch the outlines of an appropriate strategy for reform. It has three major components.

First, we should continue to permit medical malpractice litigation for negligently caused injuries. I believe it would be unwise to accept the proposition argued by some that we should prohibit medical malpractice actions, replacing them entirely with a no-fault compensation system. The elimination of medical malpractice actions would run contrary to the goal of reducing the frequency of health care injuries as the threat of litigation serves a useful role in minimizing injuries. We would remove it at our peril. That said, we can improve the current negligence litigation system, particularly as it applies to medical malpractice. We can introduce reforms with respect to the calculation and payment of damages; we can greatly enhance the quality of case management; we can have faster and cheaper disposition of the litigation; we can reduce the risk of frivolous actions; and we can take a variety of other steps designed to maximize the benefits and minimize the costs of permitting malpractice actions.

The second major area of reform is to increase the responsibility of hospitals and other institutions for the quality of health care. The great majority of medical malpractice giving rise to liability occurs in hospitals. We must recognize that the provision of high-quality health care is often a team responsibility, drawing upon multiple inputs of which physicians services are but one. While at an earlier date the physician may have been properly understood as acting alone in the provision of medical services, there can be no doubt that modern medicine depends on both highly professional individuals and well organized teams of properly equipped doctors and other health-care professionals.

The medical profession has been slow to accept the institutional implications of this shift in the medical paradigm. Longstanding tensions between individual professional responsibility on the one hand and institutional leadership and control on the other have retarded the development of fully co-operative and mutually reinforcing collective responsibility.

This must change. It is clear that many of the causes of health-care injuries are systemic and that change at the institutional level rather than the individual physician is required. Early initiatives and experiments with quality control and risk management programs in hospitals have shown very promising results. Numerous leading hospitals across Canada have taken very substantial steps in the right directions. In my view we need to take every step possible consistent with facilitating, encouraging, subsidizing, mandating and otherwise bringing about further steps in this direction if we are to pursue to the fullest the goal of minimizing the risk of medical injuries.

There is one element within this strategy of institutional responsibilities on which I am undecided at present. This relates to the question of institutional liability. At present, as a general rule, hospitals are not liable for the negligence of physicians working within them although they are liable for the negligence of all the other health-care workers in the institution. This is different from the case of a corporation’s responsibility for its employees, of a law firm’s responsibility for its partners and employees, and a university’s responsibility for its professors. The explanation in law is that since doctors are not normally either employees of the hospital nor partners with one another, the rules of vicarious and joint and several liability do not apply.

Some commentators have suggested that the cause of encouraging institutional responsibility would be advanced by changing the law to make the hospital liable for the fault of physicians working within them. Support for this proposition comes from authority as high as that of the Honourable Chief Justice Charles Dubin in his report on the Hospital for Sick Children in 1983.

This proposal is resisted, however, by virtually all representatives of organized medicine across Canada, including the Canadian Medical Association, and by many lawyers working in the health-care field. They fear it would threaten the autonomy and professionalism of the individual physicians and would run the risk of placing non-physician hospital administrators in a position of authority over physicians working in the institution to the detriment of the patient-physician relationship. The competing claims in this area are difficult to assess and I have some final reflection to do myself.

If we take these two steps of maintaining and improving negligence actions and increasing institutional responsibilities with attention to quality control and risk management programs, we will have gone some considerable distance to minimizing the risk of avoidable medical injuries. We will not, however, have made progress on the goal of social justice.

We would continue to leave most people who suffer medical injuries without meaningful recourse, leaving them to bear their own losses except to the extent that they have private disability insurance.

I should emphasize that the medical injuries I speak of are often serious, almost always unexpected and frequently leave the victims suffering disfigurement, disability, paralysis or death. In my view it is simply not good enough for us to ignore the majority of these victims. If we are to be as compassionate and caring as we can and should be, we need to find ways to provide a decent level of compensation for these victims without further burdening the malpractice litigation system. That is, I believe, we should take seriously the prospect of designing a compensation system for those suffering medical injuries that would not replace tort law but would provide an available and accessible alternative which would ensure a far greater proportion of those suffering injury receive some compensation.

There is precedent for such a scheme. For more than a decade such a scheme has been in place in Sweden and it works well. It has now been adopted across Scandinavia. In the United Kingdom, the British Medical Association has also proposed an experiment along these lines having concluded that the current negligence litigation system is inadequate.

I believe the time has come for us to put in motion a policy process which would lead to the development and implementation of a compensation scheme directed at those suffering serious medical injury and who are in real need. In designing such a system one must address head-on the problem of determining which injuries would fall within the compass of compensable health care injuries and which are better understood as simply symptoms of illness and disease. This problem of definition presents a formidable challenge, but no an insurmountable one.

Some suggest that it is unprincipled to design a scheme that is confined to health-care injuries, arguing that health-care injuries can make no better claim for compensation than a wide variety of other injuries and disabilities including product injuries, home-maker injuries, sporting injuries and all forms of naturally occurring illness and disability.

At one level I agree with the critics. We should do our best to address and remedy the deficiencies of our social welfare

system as they affect each of these categories of injury. I reject, however, the proposition that in the absence of simultaneous progress on all fronts in respect of all injuries and disabilities we should abandon the goal of progress in more narrowly focussed areas. The opposite has been the Canadian experience. We developed a special compensation scheme over half a century ago to take account of workplace injuries. Similarly, we have rejected exclusive reliance on negligence litigation for automobile accidents having developed schemes of partial and comprehensive no-fault benefits. And similarly, all provinces of Canada have supplemented the negligence system with a scheme of compensation for victims of crime.

In other words our tradition has been one of incremental progress taking identifiable forms of injury and disability and doing our best to develop appropriate remedies. Such a strategy for reform may fall short of perfection, but it strikes me as a good deal better than the paralysis that might infect our policy-making process if we insist on simultaneous progress in equal degree with respect to all forms of disability.

In a liberal democratic society we should take advantage of every opportunity for improvement and every opportunity for incremental change that presents itself. If we look forward a quarter century I anticipate that we will have moved towards a universal compensation scheme for all Canadians for all forms of injury and disability. However, I do not think we will arrive at that result in one large step but will get there by virtue of a host of smaller steps. Our response to medical injuries offers one such step.

Some will no doubt view the proposal for a compensation scheme for medical injuries to supplement the existing tort litigation system as too radical and too expensive, preferring to maintain the status quo. However, the status quo is not an option that is likely to be available. The cost of complacency in this area will not be to stand still but rather to slide backwards. In the absence of some significant steps being taken to provide an alternative to negligence litigation for the victims of medical injury, I predict that we will see ever increasing numbers of suits with ever increasing costs causing ever increasing distress to physicians and ever increasing insurance premiums for their practices.

As I stated earlier, there is a vast area of growth possible in medical malpractice litigation and unless we take steps to relieve the pressures for compensation placed on the medical malpractice litigation system, that growth will occur. As our r