Additionally, some professional healthcare groups or 'allied health professionals' have evolved to fill niche areas of clinical practice. These Regulated Health Professions¹ are often identified by distinct provincial legislation within a province. By-and-large these allied health professionals act outside of publicly funded healthcare. Patients more often pay for products and allied health professional services directly out of pocket or by way of private insurance. These private expenditures are sizeable and account for approximately 30% of all healthcare expenditures in Canada.² This paper will attempt to identify some of the common issues that insurers in the professional healthcare insurance industry may find helpful with respect to liability and damages.

Background: Canada is a Country without National Healthcare

Over a half-century ago Canadian citizens paid physicians, hospitals and others directly out of pocket for the services that were provided by way of a hospital stay - plus inpatient and outpatient therapeutic and surgical treatments. Some of those Canadian patients would invest in their own healthcare insurance, while other's relied on the Gods of fortune and misfortune. There were exceptions to this pay-as-you-go practice based on a means test or the generosity of philanthropic bodies and organisations across the country.

Healthcare, with a few exceptions, is by-and-large a provincial/ territorial duty and responsibility.

Canada is not a single unified state. It is comprised of some 13 confederated territorial jurisdictions ("provinces" or "territories") and a continent-wide jurisdiction (the "federal" jurisdiction). There are constitutionally based duties and responsibilities that are largely federal. For example, the federal jurisdiction has greater authority in the collection of "money" from Canadians. Other duties and responsibilities such as healthcare are owned, controlled, legislated, and operated by the provinces. Healthcare, with a few exceptions, is by-and-large a provincial/ territorial duty and responsibility. There are now 13 provincial/territorial healthcare systems. Similarly, there is an equal number of provincial court jurisdictions where a claim may be brought against a medical practitioner or allied health professional. Hence, it is a myth that there is a single uniform National Health Care system in Canada.

Publicly funded healthcare, or 'medicare', had its Canadian beginnings in the western province jurisdictions of Canada in the late 1940's. The federal jurisdiction was not involved – initially. Some 15 years later the federal jurisdiction responded with... money.

The federal initiative promoted the public funding of hospital and diagnostic services. The 1957 Hospital Insurance and Diagnostic Services Act of Canada provided (or offered to provide) for cost-sharing on roughly a fifty-fifty basis with any province that complied with federal conditions and had opted into the scheme. With the enticement of 'free money', all provincial/territorial jurisdictions quickly agreed to participate in the initiative. What is incorrectly deemed, National Medicare, was born.

The initiative was expanded over the next quarter of a century to include physician and some other professional services. A federal piece of legislation, the 1966 Medical Care Act was enacted to specify conditions to be followed by provincial jurisdiction participants before meeting eligibility requirements (a.k.a. "getting money"). The fifty-fifty cost sharing formula was short-lived and was replaced by a less generous cost sharing formula. The Canada Health Act, R.S.C., 1985, c.C-6 was then implemented to create certain philosophical guidelines ("program criteria") that must be satisfied before a province qualified for full federal money contributions – which were still substantial, but less than fifty-fifty. Those program criteria were vague, not defined, and involved:

1. public administration;
2. comprehensiveness;
3. universality;
4. portability; and
5. accessibility.

In Ontario, the Health Insurance Act, R.S.O. 1990, c. H.6, as amended, is the province's legislation through which Ontario provides insured health services for its residents – including an estimated 500,000 Ontario physician-to-patient house calls per year. (Yes, doctors do make house calls.) This provincial legislation is one of the vehicles through which healthcare policy flows.

Publically funded healthcare in Ontario, Canada is known as the Ontario Health Insurance Plan or "OHIP". There are in each of the other provinces groupings of legislation that provide for publically funded healthcare, regulation of physicians, regulation of allied health professionals, and the manner in which proceedings are to be commenced ("civil procedure"). Not all legislation in other provinces creates a system(s) that is/are identical to OHIP (other abbreviations are used). But federal money (even when shrinking) makes those independently running healthcare systems similar enough that much of the globe believes that Canada has a National Medicare System.

Adverse Events: Defining the Potential Market and Market Share

Care provided by publicly funded systems is generally perceived as safe. Defining what is safe is an ongoing exercise amongst healthcare statisticians of many stripes. One such exercise was "The Canadian Adverse Events Study: The Incidence of Adverse Events among Hospital Patients in Canada." (here-in-after "The Canadian Adverse Events Study").

...between 37% and 51% of total Adverse Events were viewed as preventable.

In 2004, authors G. Ross Baker et al. reported in the Canadian Medical Association Journal that 7.5% of patients³ admitted to acute care hospitals in Canada in 2000 had one or more "Adverse Events".⁴ It was reported that between 141,250 and 232,250 patients per year admitted to hospital in Canada were/was associated with an 'Adverse Event(s)'. Between 9250 and 23,750 deaths annually from Adverse Events could have been prevented. And between 37% and 51% of total Adverse Events were viewed as preventable.

Keep in mind that The Canadian Adverse Events Study identified only Adverse Events in an acute care setting and included allied health professionals. The implied potential here is that the number of adverse events in the community [non-acute care] caused by allied health professionals may well dwarf those found in The Canadian Adverse Events Study. Consequently, the professional liability market potential may be far larger than appreciated by the respective allied health professions.

Litigation Statistics – Not as Bad as You Might Think!

Traditionally, when one considers healthcare litigation, physician medical malpractice comes to mind. And where The Canadian Adverse Events Study suggests approximately 100,000 non-fatal preventable "Adverse Events" [annually] and 10,000 fatal preventable "Adverse Events" [annually] related only to acute hospital-based care, one would presume there is a lot of related litigation.

Somewhat surprisingly, the data does not bear out that Canadians are litigious. Nor are any real trends identifiable other than a gradual increase in payouts over the last decade.

Take for example the Canadian Medical Protective Association ("CMPA"). It is the organisation in Canada (which has been created by an Act of Parliament) which typically defends and indemnifies most physicians in litigation and other prescribed matters. Between 2012 and 2016, the numbers of new claims issued annually ranged between 844 and 891 new claims against physicians. This seems surprising in view of the numbers of preventable 'Adverse Events'.

Litigation Commenced

Year	2012	2013	2014	2015	2016
New Cases	875	844	863	862	891

Between 2012 and 2016, (among other services it provided) the CMPA additionally represented physicians in College/Regulatory matters. Regulatory matters often dealt with communication/mis-communication related matters directly with patients and others. It would appear that between 4000 and 5000 interventions per year were required.

Regulatory - College - Disciplinary

Year	2012	2013	2014	2015	2016
New Cases	4274	4093	4252	4723	5088

The CMPA also provided advice and other services to physicians as part of a negotiated agreement. Those advice related matters now total in excess of 20,000 consultations per year with CMPA lawyers.

The CMPA has a perception in the legal community of not settling claims. While the data does bear out a settlement rate far less than auto claims, the settlement rate (roughly 40%) is far greater than appreciated in the legal community. The data also suggests that less than 10% of all cases are taken to trial, with the CMPA winning roughly 80% to 90% of cases taken to trial.

Resolved Cases	2015	2016
Legal Actions	892	839
Settlement	350	290
Trials	59	54
For Defendant	55	45
For Plaintiff	4	9
Dismiss/Abandon	483	495

What does seem to be increasing is the value of each settlement/resolution on a year over year basis. That seems to have almost doubled over a 10 year period.⁵

Additionally, one analysis of closed claim files indicated that 'other healthcare provider factors' were involved in 31% of those files reviewed over a 10 year period.⁶

Liability - Issues

For a plaintiff to succeed in a medical malpractice action, he/she has to prove that the healthcare provider:

1. Owed a duty of care;
2. Breached the standard of care;
3. The breach of the standard caused the loss on a balance of probabilities; and,
4. The loss is quantifiable.

Proof of these elements is generally by way of oral, documentary, and expert evidence.

Evidence

It is not uncommon that allied health practitioners and/or physicians are involved in a civil action and, at the same time, defending a regulatory hearing before a College disciplinary body. Expert and other evidence may be called in both proceedings. However, there are restrictions imposed on disclosure that otherwise might lead to speedy resolution of litigation.

For example, the Quality of Care Information Protection Act, 2016, S.O. 2016, c. 6 Schedule 2 enables investigative arms of Hospitals and Regional Authorities to investigate what could be termed 'Adverse Events'. The information so gathered or created is not to be disclosed:

"s.10(1) No person shall ask a witness and no court or other body holding a proceeding shall permit or require a witness in the proceeding to disclose quality of care information.

s. 10(2) Quality of care information is not admissible in evidence in a proceeding"

A similar provision is found under section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 which prohibits the use of evidence gathered in and for disciplinary matters [for civil proceedings].

Differing variations of such legislation exist in other provinces.

I. Duty of Care

In Canada, it is recognised that a fetus, even when viable outside the womb [in its last trimester], has no independent rights and cannot be given the protection of the state. In the face of multiple ongoing infant 'labour and delivery brain damage' cases that were being tried and/or settled on a routine basis, a line of cases cast doubt on the viability of those compromised baby cases. In Bovingdon (Litigation Guardian of v. Hergott, 2008 Carswell 15[2008] O.J. No. 11 (C.A.) Justice Feldman of the Ontario Court of Appeal expressly questioned whether a healthcare professional could be sued for damages occurring in utero.

A 5 judge panel of the Ontario Court of Appeal laid the matter to rest in Liebig v. Guelph General Hospital, 2010 CarswellOnt 4012, [2010] O.J. No. 2580 (C.A.). The court recognised that there is a duty of care to an unborn child for an in-utero injury caused by a medical professional.

II. Standard of Care

The Allied Professional's Standard of Care

Normally claims against professionals cannot succeed without expert evidence.

Allied health professionals frequently work for or in conjunction with other allied health professionals and/or institutions in the healthcare arena. The standard that any professional is held to in a proceeding or a litigation matter is of a reasonable and prudent professional in the circumstances. Normally claims against professionals cannot succeed without expert evidence.

Courts have steadfastly retained for the trier-of-fact the responsibility of determining the standard of care. The standard of care is not to be determined by the experts. See, for example, Crawford (Litigation Guardian of) v. Penney, 2003 Carswell Ont 82 at para. 248 and ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 41.

More recently is the matter of Saadati v. Moorhead, 2017 SCC 28 (CanLII) (hereinafter "Saadati"). Saadati is a motor vehicle injury related case. The claimant was involved in a series of 5 motor vehicle injuries. At trial, the judge determined that the claimant's injuries were caused as a result of the second accident. This was on the basis of non-expert evidence. Apparently friends and family testified that Saadati's personality changed and worsened.

A medically recognized psychiatric condition was not found to exist. However, the Supreme Court of Canada agreed with the trial judge in determining that it was not necessary for a recognized psychiatric condition to exist in order for a plaintiff to recover damages. The Court disapproved of letting experts determine liability based on a diagnosis. It found that the trial judge's approach was sufficient even though not based on expert opinion.

As the Court stated at paragraph 31 in Saadati, "a trier of fact is not concerned with diagnosis, but with symptoms and their effects."

The Court also went on to state:

"... In the case with unmeritorious or trivial claims for negligently caused mental injury, robust application of the elements of the cause of action of negligence should also be sufficient to address concerns of indeterminate liability. In particular, liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework, which focuses on the relationship between the parties (Cooper, at para 30), and the remoteness inquiry, which asks whether the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable."

Saadati, in my view, is a reflection of the court's fatigue in dealing with hired-gun experts and increases the degree of uncertainty in all litigation in Canada.

III. Which Standard??? – Collaborative Care

Various models of healthcare have been proposed over time as a means of improving quality of care and healthcare delivery. Fee-for-service payment for physicians is being replaced by a variety of different options. One model that is obtaining a degree of favour is the team or Collaborative approach, called Collaborative Care. In this model, the physician is one member of the team and the team makes decisions as a group. This, of course, raises the question of which professional's standard of care is to be used as the yardstick in a legal action?

While there is no direct employer-employee relationship with any of the regulated health professionals, the group decision potentially makes the group liable.⁷ Additionally, as hospitals, doctors, nurses, free-standing clinics, and allied health professionals all seem to be adopting and holding out to the public that they use the 'team approach', this area of law will likely evolve quickly over the next decade.

IV. Causation and No "Loss of a Chance"

It appears well-settled law that the "but for" causation test is to be used in Canada; see Clements v. Clements, 2012 SCC 32 (S.C.C). It is also well settled that the Doctrine of 'Loss of a Chance' is non-compensable in medical malpractice cases. Causation must be proved on a balance of probabilities; See Cottrelle v. Gerrard, 2003 CanLII 50091 (ON CA).

V. Damages

OHIP

While damages are generally assessed in a similar fashion across Canada, there are some provincial statutory differences that ought to be considered. There are different social supports in different provinces. Those social supports have varying levels of subrogation entitlement. The Ontario Hospital Insurance Plan ("OHIP") provides some defined medical benefits. Some community care programs and insurers also have subrogation rights.

OHIP has statutory rights that arise independently from the plaintiff's claim for damages. In other words, in the right type of case, OHIP itself can commence and pursue a medical malpractice claim against the persons it funded. Interestingly, the plaintiff has the option to claim higher non-OHIP rates for hospital and medical services – this presumably is an incentive for the plaintiff to pursue OHIP's claim on its behalf.

This may mean that OHIP will take a more aggressive line with claims that in the past were abandoned.

And OHIP subrogated claims have become more valuable in 2018 in Ontario. The OHIP program was expanded to cover the supply of pharmaceuticals for those up to age 24. This may mean that OHIP will take a more aggressive line with claims that in the past were abandoned.

Similar subrogation rights do not exist in all provinces.

VI. Fatality Claims & Family Law Act Claims

Claims related to medical malpractice litigation brought by family members is governed by legislation that varies from province. Ontario, for example, has the broadest type of legislation. Claims can be brought on behalf of grandparents, grandchildren and all relatives in between those extremes. The amounts are assessed by the courts or negotiated. The sums involved are usually more modest. The enabling legislation applies to fatality and non-fatality claims.

However, the province of Alberta has legislation providing for non-negotiable bereavement damages. There does not have to be any evidence of suffering. A specified non-negotiable amount is payable once a fatality has occurred and an action brought. The amounts are paid only to parents, partner and children. Variations of this type of program, and damages award, occur in other Canadian provinces.

VII. Malpractice and Structured Settlements

Malpractice claims are one of the litigation areas where income tax top-up can occur in Ontario, Canada. However, under section 116.1 of the Courts of Justice Act, R.S.O. 1990, c, C.43 as amended, the plaintiff or a defendant can require the court to impose a structured settlement in medical malpractice actions. By doing so, the parties negate the effect of s. 116.1 (9) which otherwise would require that the court order damages to compensate for the income taxation amounts lost. This legislation is intended to apply to settlement or judgment amounts of $250,000 or greater.

Such legislation does not exist in all provinces.

VIII. Pierringer Agreements

Pierringer agreements are sometimes useful where one party is taking an unreasonable position or delaying the resolution of the litigation. It can be perceived as a means of funding a plaintiff's litigation while essentially letting the settling party out of the litigation. It is, therefore, not uncommon in larger claims all across Canada that such agreements are discussed and executed. Failure to disclose the existence of Pierringer agreements can give rise to lawyer liability claims. However, this type of settlement tool is available in all provinces as typically it is not dependent on provincial or federal legislation.

Conclusion

Canada is not a unitary state and has many similar provincially based medical systems and civil litigation systems. These different systems give rise to some similarities and some differences in the pursuit and/or defence of medical malpractice claims. The available information suggests that far fewer claims are being pursued than might be actionable. One would conclude that this means that Canada is a society with a high degree of tolerance and compassion. However, collaborative care, the evolution of society and the law - and perhaps more demanding millennials, may change that environment.

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¹ In Ontario, there are over 25 distinct Regulated Health Professions:
² CIHI, "National Health Expenditure Trends, 1975 – 2017, Canadian Institute for Health Information (CIHI:2017) at page 12
³ This is lower than the 12.9% of reported New Zealand 'Adverse Events'.
⁴ An 'Adverse Event' is defined as an unintended injury or complication that results in disability at the time of discharge, death or prolonged hospital stay and is caused by healthcare management...
⁵ CMPA, "2016 Annual Report", The Canadian Medical Protective Association (CMPA:2016), see generally; See also, CMPA, "2015 Annual Report", The Canadian Medical Protective Association (CMPA:2015), see generally
⁶ CMPA/HIROC, "Surgical Safety in Canada: A 10-year review of CMPA and HIROC medico-legal data", The Canadian Medical Protective Association (CMPA/HIROC, 2016)
⁷ B. Murphy, "Collaborative Practice" (2006) Insight Information Conference Materials

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