MEDICAL MALPRACTICE SYSTEM: CANADA

Canadian physicians, whether in private practice or work for hospitals, are required to obtain
medical liability insurance. Such insurance is available through the Canadian Medical Protective
Association (CMPA). Insurance premiums or “membership fees” are based upon the type of work a
physician performs and the region in which he or she practices. The CMPA has published Fee
Schedules. Said fees are not based upon a physician’s record and are not increased for a history of
complaints or on account of claims paid.1 (Clarke, 2009) Membership fees paid to the CMPA give
physicians insurance coverage and a right to representation in medical malpractice lawsuits. However,
provincial governments reimburse physicians for at least a portion of their membership fees. The
purpose of the reimbursement program is to encourage physicians to practice in the province and not to
move to another province or the United States where average incomes may be higher. Critics contend
that because the CMPA’s fees are not based upon a physician’s record, the system does little to penalize
physicians who are found to be liable for malpractice even on multiple occasions. Physicians who have
committed acts of malpractice may, however, be disciplined by their provincial licensing body.
Discipline can range from suspensions to losses of the privilege to continue practicing medicine.2

In Canada, one of the deterrents from commencing a lawsuit on medical malpractice is the
requirement of a losing party to pay about two-thirds of a successful party’s legal costs. Since the CMPA
often incurs large legal expenses in defending claims, this is an additional disincentive to persons from
bringing an action for damages. Another feature of Canadian law that tends to discourage parties from
pursuing a lawsuit against physicians for malpractice is that awards for pain and suffering, which are a
major component of personal injury awards in the United States, are subject to a relatively modest
judicially imposed cap in Canada. The Supreme Court has set out guidelines that effectively limit awards
for pain and suffering in all but exceptional cases. In a series of decisions released in 1978, the Supreme
Court established a limit of Can$100,000 on general damages for non-pecuniary losses such as pain and
suffering, loss of amenities and enjoyment of life, and loss of life expectancy. The court reasoned that no
amount of money could ever truly compensate for the non-pecuniary element of catastrophic injury
although it can provide "solace," not in the sense of sympathy, but rather through "physical
arrangements to make life more endurable" above and beyond those relating directly to the injuries.3
(Gilmour, 1994) The Supreme Court did state that there may be extraordinary circumstances in which
this amount could be exceeded, and courts have allowed the figure to be indexed for inflation so that
the current suggested upper limit on awards for non-pecuniary losses is close to $300,000. Nevertheless,

1
Stephen F. Clarke, Medical Malpractice Liability: Canada (2009). Available at:
https://www.loc.gov/law/help/medical-malpractice-liability/canada.php

2
Id.
3
Joan M. Gilmour, Overview of Medical Malpractice Law in Canada, 3 Annals Health L. 179 (1994). Available at:
http://lawecommons.luc.edu/annals/vol3/iss1/14
the flexible cap on non-pecuniary losses is a major disincentive to persons considering whether they
should sue a physician for malpractice and for lawyers to specialize in or seek out malpractice cases.4

Punitive damages in tort actions in Canada are relatively rare. The Canadian Supreme Court has also
limited the types of cases in which punitive damages may be awarded, although it has allowed as much
as Can$1 million in punitive damages in an extraordinary case. A Canadian law firm has summarized the
holding in this leading case concerning punitive damages as follows:

1. Punitive damages are very much the exception rather than the rule;

2. Imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible
misconduct that departs to a marked degree from ordinary standards of decent behaviour.

3. Where they are awarded, punitive damages should be assessed in an amount reasonably
proportionate to such factors as the harm caused, the degree of the misconduct, the relative
vulnerability of the plaintiff and any advantage or profit gained by the defendant,

4. Having regard to any other fines or penalties suffered by the defendant for the misconduct in
question.

5. Punitive damages are generally given only where the misconduct would otherwise be
unpunished or where other penalties are or are likely to be inadequate to achieve the objectives
of retribution, deterrence and denunciation.

6. Their purpose is not to compensate the plaintiff, but

7. to give a defendant his or her just desert (retribution), to deter the defendant and others from
similar misconduct in the future (deterrence), and to mark the community’s collective
condemnation (denunciation) of what has happened.

8. Punitive damages are awarded only where compensatory damages, which to some extent are
punitive, are insufficient to accomplish these objectives, and

9. They are given an amount that is no greater than necessary to rationally accomplish their
purpose.

10. While normally the state would be the recipient of any fine or penalty for misconduct, the
plaintiff will keep punitive damages as a "windfall" in addition to compensatory damages.

11. Judges and juries in our system have usually found that moderate awards of punitive damages,
which inevitably carry a stigma in the broader community, are generally sufficient.5

4
Stephen F. Clarke, Medical Malpractice Liability: Canada (2009)
5
Stephen F. Clarke, Medical Malpractice Liability: Canada (2009)
 Many other nations consider the Canadian medical liability system to be a world-class model and
surveys of other jurisdictions reinforce this conclusion. It was noted that the system works most
effectively when there is an appropriate balance between the three separate but related processes of
patient safety, physician accountability and patient compensation. Nevertheless, the Canadian Medical
Malpractice System have sometimes been criticized as it seems not favorable to patients who believe to
have been injured by medical malpractice by reason that the awards against physicians have, on a per
capita basis, been much less frequent than in the United States and other countries and that awards
have generally been much smaller for similar injuries. Conversely, the character of the Canadian Medical
Malpractive System of not being favorable to the claiming patients makes it immune from abuses of
patients who maintain adverse and detrimental claims from physicians. Its rule on bearing one’s costs of
litigation in the case of the losing party as well as the limitation on the recoverable damages that can be
imposed by the courts are effective ways that can alleviate the increasing problem of abuses being
experienced by the physicians from the detrimental claims being pursued by the patients.

Bibliography
Clarke, S. F. (2009, June). Medical Malpractice Liability: Canada. Retrieved December 15, 2016, from The
Library of Congress: https://www.loc.gov/law/help/medical-malpractice-liability/canada.php

Gilmour, J. M. (1994). Overview of Medical Malpractice Law in Canada. Retrieved December 15, 2016