Examining the tremendous expense required to provide access to justice
Bogoroch & Associates LLP covers the challenges and complexities unique to the complex practice area of medical and hospital malpractice litigation. This exclusive session is complementary and eligible for up to one substantive hour.Lawyers, paralegals, law clerks, and persons interested in learning practical tips for examining and cross-examining expert witnesses can all benefit from the webinar. Watch panel of experienced trial lawyers who act for plaintiffs as they address recent case law and timely and topical issues, including case selections, the increasing expenses involved from investigation to trial, the important role of the expert witness, and many more. Watch now and gain insight into:
Host: [00:00:00] We have a panel of experienced plaintiff side trial lawyers with us today to discuss this unique topic. Please welcome Richard Bogoroch and Heidi Brown, managing partner and senior partner, respectively at Bogoroch and Associates LLP. Daniela Pacheco, partner at Neinstein Personal Injury Lawyers, and Barbara MacFarlane, partner at MD Lawyers. Over the next hour, these experts will examine recent case law, delve into timely issues, and also share some practical tips. I'm going to turn things over to our panelists now to begin the presentation. Take it away, Richard.
Richard: [00:00:34] Thank you very much. And I'd like to thank all the staff of Canadian lawyer and media for organizing this webinar and for putting everything together. We have a terrific program today. I think you're going to find it informative, interesting, and it'll tell you things about medical malpractice that you didn't know. I'm very grateful for the participation of my partner, Heidi Brown and Daniela Pacheco and Barbara MacFarlane. These are all top lawyers in the field of medical malpractice. We are very fortunate to have such terrific lawyers participate in today's webinar. I want to take a few. We have we have a schedule and we have a program and an agenda. And what I want to just take a few minutes before we get into the program, so just to talk to you a little bit about us. We represent victims of medical malpractice in Ontario and across Canada. We have currently 14 lawyers and our student will be joining in August after her call to the bar and her vacation. And we'll be up to 15 lawyers. We have a large contingent of staff and resources devoted to medical malpractice cases, and you'll hear why we have so much resources devoted to this particular practice area. We have frequently we have six lawyers working on medical malpractice cases, five generally dedicated, and others who are practicing both personal injury and medical malpractice. And we do so because to fight and litigate these cases require resources, require fortitude, and require the willingness to take these cases to trial. We're going to talk more about that during the currency of this program. I want to just talk to you about some of the cases. We try cases and we try cases on average about one a year now, sometimes two. And one of the cases we're very proud of is Surujdeo and Melady. What affected law had a significant impact on the law of Ontario. This was a jury trial that I a case that I tried back in 2015. And and we were obviously successful and we were successful in the Court of Appeal. And it deals with jury questions and it deals with and it deals with some of the causation issues that arise in the causation questions to put before the jury. But I've given you the citation and it's there and you can find it on on another case, which I'm proud about. We want a trial. And unfortunately, we lost the Court of Appeal on the issue of fiduciary duty. We sought leave to the Supreme Court of Canada, were denied. But it's a case we won on the issue of fiduciary duty. It involved our client's late husband, who participated in a clinical study for which he was recruited, and he died during one of the procedures. And we were successful in establishing that the defense certain defendants breached the fiduciary duty. However, the Court of Appeal overturned the decision, the finding of the judge because the judge made the decision on fiduciary duty. That was not a jury decision because under the Courts of Justice Act, findings of equitable rights or breaches of fiduciary duty is something before a judge and the judge found in our favor, unfortunately overturned in the Court of Appeal. Another case that we tried was our first Zoom trial. I think one of the first Zoom trials, this case is called Boutcher and Cha also in Cantley. And we tried this case virtually entirely, virtually in November 2020. The decision released December 2020. It was a surgical case, a hysterectomy performed negligently, and we were successful in that case. And it's very important to read the decisions of Mr. Justice Gans, both on the role of the expert and also on how he dealt with Armstrong, which interestingly enough, was then over was then overturned by the Supreme Court of Canada. But you'll see how he dealt with the Armstrong decision. And I think it's a very noteworthy case for any medical malpractice litigator. Indeed, for any litigator. We also were successful in resolving a birth trauma case, and this case is also reported on cannily. And we were fortunate receiving a $10 Million settlement for our client. And I credit my partner, Heidi Brown, and some of the lawyers in my firm who were instrumental in moving this case forward and obtaining justice for our very badly injured client. And by moving this case so proactively through the litigation process, funds for her well-being were provided earlier rather than later. And that, we believe, will make a difference in her life. So we're very proud of this decision and we're very proud of the roles of the lawyers, and particularly Heidi Brown, my associate, Tobie Sampson and Alexandra Roman played in this case in helping us move this case forward. We're also very grateful and I say that to defense counsel who who cooperated with us in moving this case. Discoveries were scheduled promptly. Mediation was scheduled within a reasonable time when we had all the salient information. So this was a case which is a, I think a textbook study of where plaintiffs counsel, defense counsel working cooperatively to achieve a just result by moving the case proactively through the litigation process. And we're very proud of that. It's also on camera. So we're now we're go to the agenda for today. The agenda for today is set up on if you can see it on your screen. And we want to talk to to our panel members about one of the most important aspects of being a medical malpractice litigator, and that is case selection. So let me ask. Let me first of all ask Barbara and then Daniela to address their criteria for taking on a case, bearing in mind and I want everybody to realize medical malpractice cases are the most complex, difficult and expensive. These are cases run on a contingency fee basis. It costs enormous amounts of money just to take it to discovery and then to trial is in the hundreds and hundreds of thousands of dollars. What I want to talk to Barb and then to Daniela about their criteria for case selection.
Barbara: [00:06:54] Sure. Thank you, Richard. You know, a lot of people talk about a monetary threshold is sort of what's the the amount of money that the damages should be before you would take on a case. Largely because these cases can be very costly to litigate. So from from our perspective here at MD lawyers, we're not we don't necessarily look at a monetary threshold. It's sort of many cases are perhaps. But there are some cases where, you know that the amount of compensation can be low, but the fault for the injury is pretty clear cut. However, that's a rare kind of case. So usually they're more of a gray line on whether, you know, early on that the case can be successful or that you can build a successful case. So really, it's based on experience knowing what cases are likely to succeed or not. But, you know, overall medical malpractice cases are quite complicated because of the medical issues. There's underlying medical issues for the patient, then the injury that occurs, but also because of the vigorous defense that doctors and hospitals make, it makes these cases very costly. They're going to be long. Very. You know, protracted litigation. So it's for that reason that we want to make sure that the compensation that the client will receive for medical mistakes is not eaten up by legal costs. That's why we often do resort to sort of that monetary threshold. And sometimes it could be 500,000 is a case worth about 500,000. We have simplified rules, obviously, that that's available for us, but these cases are difficult to take through simplified rules, in my view, because of the way that that the CMPA dig in on these cases, they're going to use whatever they can under that rule to maximize their defense, and they're going to try and kick it out of simplified rules if they can, as well as my view. So we often don't do those smaller level cases just for that reason. We want to make sure that the clients are actually going to be getting some compensation at the end of the day. And it's a big, big investment by a firm to take on. So I hope that kind of answers what your question is, Richard. But but it's about looking very early on based on experience. What we think these cases, how we can succeed on all the issues, standard care, causation, damages.
Richard: [00:09:38] Thank you. Daniela.
Daniela: [00:09:41] Thank you. Thanks, Richard, for having us here. And I have to say, we agree with Barb. I think anyone who runs these cases knows that there are multiple considerations that you have to think of right off the bat when considering these cases. I like to think of it as sort of putting a case in one of three types of cases that we might take on. The first is Barb mentioned might be lower value cases where it is very clear that liability will not be a significant issue, where you expect either a resolution before Discovery's or with just a plaintiffs discovery as an example. Now, those are few and far between. And as I've said to many, many lawyers in our firm, be careful, because something that looks really simple or clear cut to you can, with good opposing counsel on the other end, quickly become a five year saga. That being said, that is, you know, that balancing does occur. And so where we're confident that liability will come through quickly, we can take those lower value cases and in particular, some of the fatality of minor cases. That's something that we occasionally do. The other type of case, of course, is the sort of classic case where you expect a long, drawn out liability case and you can sort of foresee a trial. And those cases, I think, have to be in the higher ranges in just given how long these trials are now running, I would say over $1,000,000 at least, and expected damages if you're running a five, six week trial. Just just given how much effort you need to put into it. Now, there's also a third sort of aspect that we take. It's not often, but on occasion at our firm. And those are cases where there's a bit more of a public interest element to it. And now that the lost side of Ontario has changed some of the rules around contingencies, contingency fees, we can proceed on certain cases where the client's interest is not financial compensation per say, but some other outcome. And we're exploring that a little bit. And we've had some success in, for example, nominal financial compensation, but a change in policy and that being really important to the family. And luckily with these new the new flexibility with contingency fee agreements, we're able to do a bit more of that, I think, regardless of the sort of three buckets of types of cases. The most important is ensuring that your views and your initial opinions align with the expectations of the consult or the client. I think the the hardest part is explaining to the client just how long and expensive this is going to be. You know, often people will say, well, I'm not doing it for the money. And in many situations I have to say, but that's what there is. So if you're not doing it for the money, this might not be for you. And and I think that it's important as well for those clients who are really gung ho on a public interest issue or who want to sort of battle the system to remind them of the length of this process and that, you know, what I personally don't want to do is make them a victim of of the legal system after they've become a victim of the medical system. And so the invasion of privacy, the length of time it takes, the emotional effort, what it takes to go through a discovery, I make sure I lay that all out on the table at the beginning so that we can all manage our expectations and understand the reasons why the firm may be making the decisions that they're making.
Barbara: [00:13:55] Yeah. And if I could just add to that briefly, I 100% agree with everything Daniela said. The intake process is a very important process because, you know, med mal litigation, apart from the costs, it's also a very invasive thing for for the victim, the family members. And it may not be the right thing for people. And there are other options, like complaints to the college coroner's inquest, other types of hearings or things like that that you can talk to them about. That may be a better option for them rather than a medical suit. But you're right, it is it's important to know and identify these issues very early on.
Richard: [00:14:43] Thank you. Heidi Could you tell us, could you tell the audience about our criteria for taking on medical malpractice cases?
Heidi: [00:14:51] Sure. Thank you. A lot of the comments that Barb and Daniela have made are equally shared by our firm. We view access to justice as a core value. I think all of us do who practice plaintiff, personal injury or medical malpractice. We would not be in the business if we did not view access to justice as being front and center primary in our consideration at all times. There are so many litigants and we are seeing since the pandemic even more so. So many people because of shortages in the health care system. Anecdotally, we're getting so many more calls of scenarios in hospital with malpractice being alleged on account of the shortages that we feel very sad to have to turn people away. But the reality is cost. Cost really is an issue. We don't have a monetary threshold per say, but it's important to understand why cost is an issue and why we have to look at the long term endgame as to how much money on a cost benefit analysis the firm is going to invest because our firm invests all of our own money and takes the full financial risk, as I think do most. We don't take any financial retainers upfront. We front the the full bill up to and including trial. If we believe in the case, if we believe in the plaintiff, if we believe in their story, and if we have supportive experts who are going to be able to help us build a case, those costs can be in the hundreds of thousands of dollars, those disbursements. And we're prepared to do that on an access to justice basis for for deserving people who have no other recourse. And also, as Daniela said, if there is a possibility to move the dial forward and change the law and perhaps make some law to help open the door for more plaintiffs to be able to recover in the future, we're always mindful of trying to do that. So if we look at some of the cases that Richard talked about at the beginning on fiduciary duty with Stuart, we were really hoping to move the dial to expand the cases for fiduciary duty that we might be able to make law that will be helpful to to victims moving the dial on causation to try to expand what what to open the door to more potential fewer appeals on those issues to perhaps look at the issue of loss of chance, to see if we could move the dial on that and try and expand some of the cases that might fall within the realm of recovery for that. So really, our criteria is deserving, plaintiff supportive. If we feel that we're going to be able to get support of experts at the very initial intake process. And if we think it's a case that access to justice merits are taking it on and we feel strongly about that on a cost benefit analysis, if we think we can recover, ultimately, we're going to take those cases on.
Richard: [00:18:10] Let me just add, we completely finance these cases and we are our goal is, of course, access to justice. But at the same time, what we don't have a criteria per se, because we are taking on cases with, say, less than 200,000. That's generally the medium the the the the measure of cases we take on. They have to have a damage assessment, minimum of 200 to 300000. And the reason is because the investigation, unless, of course, there is a certain there is a really fundamental access to justice issue or there is a point of law that we think has to be aired before the courts. But the reason we have this threshold or informal threshold. It is because it's so expensive and we'll get into that segways into our next topic to run these files on a case could be worth 150 or 300,000 a surgical error case. Under the scheme of things, those are not significant damages. But the investigation, just to find out if you have a case, could end up costing you 15 to 20000. And if there's no case, you're out that money. So we completely understand how important medical malpractice is, but we cannot I don't think any firm can take on cases where 50 or 100,000 and finance it completely. I mean, our goal, our model is to finance it completely, which means we fund it completely. No one has to put up any money. So we have to be selective. And as I say, as Heidi pointed out, access to justice is our core value. At the same time, we have to be able to run a firm both efficiently and effectively and take on cases which will be worthwhile for our clients. These cases, even if they're worth two or 300,000, which in the scheme of medical malpractice litigation are not overly significant, they're considered modest, and that's to say a minimum. You may still have lengthy discoveries. You may still have a two week trial. You know, so these are factors that have to be borne in mind, bearing in mind that the initial investigation could end up costing ten or 20,000. We don't ask anybody for any money because of our core belief of access to justice. If we believe that people have a right to have access to justice. We've made the decision as a firm not to require money up front. Which leads to the next question why are medical malpractice cases so expensive? And let me start off with you, Heidi. Since you finish the last or the last speaker, why are cases so expensive?
Heidi: [00:20:46] So there's a number of reasons for that, Richard. But I think what I wanted to share with with our audience is some interesting information that that the CPC did a piece entitled As Fewer Patients Sue Their Doctor, the rate of winning malpractice suits is dropping, too. It was a piece done in 2019 and you can find it on the Internet. But they took the CBC obtained every annual report filed by the Canadian Medical Protective Association, which is we call the CMPA. That's the body that defends doctors, that they provide liability coverage and legal support to physicians. And they took a look at the reports going back to about 1901, and their analysis was over the past 40 years, that is the number of doctors increased in Canada. The rate of patients suing their doctors dramatically dropped. So for the cases that do make their way to court, the number of patients who have won their cases has also dramatically dropped. So really going back to the in the late seventies, about roughly one in three cases that went to trial was decided in favour of the plaintiff in the past 5 to 7 years or so. That figure has dripped down to dip down to about less than one in five. So it's a really dramatic difference. So you have to look at the statistics that cases that are being dismissed, discontinued or abandoned before they get to trial. It's over 55% of cases are being abandoned. Why is that? Because of cost. The CMPA has, we say, unlimited resources. I'm sure they are limited to some extent. But the last time I checked, their their assets were valued at over $4.5 billion. They are able to finance cases higher. The top firms in Canada to defend these cases. They those firms can assign many, many lawyers to those cases to defend them. They can bring motion after motion after motion to the point that it really starts to wear down the plaintiff. And they they lose their appetite and they lose their stomach to go to trial and cases are lost. There's also the issue of the cost of experts, which I'm finding has become exorbitant over the last few years, as compared to when I started practicing in this field 25 years ago. Just to get an expert to look at something can be several thousand, let alone write a report, let alone do a rebuttal report, or to let alone help consult in a discovery process and then testify at trial. Just that one expert could be you're looking at 40 or 50,000, and for most cases, you need more than one liability expert, often two, three or four, depending on the complexity of the case. And then that doesn't even get you to the damages aspect of the case. So for medical malpractice, we have to build liability and feel confident that we have a strong liability case before. We even look at damages. But the CMPA has those resources that the little person does not. And the reality is that hundreds of millions of dollars are going to the EPA from public taxpayer funds. And I think a lot of people don't know that that the province is reimbursed the doctors because their fees are capped up to a certain point. So when we're looking at cost of experts, the unlimited, almost unlimited resources of the EPA, their ability to protract and lengthen cases and drag them out sometimes up to ten years or more. And then almost every case is appealed. Very, very few cases don't go to appeal if the plaintiff wins. Most people just don't. Feel that they're up to that. And it is the real the plaintiff with a great deal of fortitude that has the stomach to to stay in for that long haul.
Richard: [00:24:57] Thank you.
Richard: [00:25:00] Daniela, you want to add anything?
Daniela: [00:25:06] I did. I just wanted to sort of pick up on a couple of things that Heidi mentioned. The first being, as Heidi mentioned, the resources available, the sort of David and Goliath imbalance, if you if you will. You know, has I think, resulted in in, at least in my view, more appeals and more litigation of issues that I think previously weren't quite contested or weren't as big of a deal. And it's interesting because I think that there is a lot of play, if you will, in terms of moving like issue moving when it comes to these cases. And so, you know, for example, jury questions, as you mentioned, with video and of course, as has happened with at Saks you know, goes all the way up. Court of appeal multiple court of appeal cases lead to the Supreme Court of Canada denied. But then there's another issue. Right. And I think that what's fascinating is when there is unlimited resources. Sure. It ends up that we get some really interesting law. But it also means, I think, more appeals and more sort of debates than necessarily would be the case if it was an insurer controlled by shareholders who are really looking at their bottom line and the efficiencies. And so I'm interested in seeing sort of how that goes forward and what we can do there. I think one of the other things is interestingly, I think some of the rules that were meant to protect us and and the other parties have now sort of gone gone the other way and turned in the other direction. And so as an example, whereas expert reports could have could historically have been five pages long in many cases because it was expected that experts could expand. The law has now really tightened up on that, in my view. And now we see reports of 20 pages and there's Heidi mentioned, you know, those experts charge by the hour. So instead of charging for a five page report, we're now having to ask them to respond to every single potential possible issue and explain every term and concept for the fear that they won't be able to testify at trial if they don't. And I think that that puts a lot of financial resources, that increases the export costs and it increases the amount of time that counsel needs to spend as well. So those are just some of the sort of spinoff ideas, I think, Heidi, from some of the things you mentioned.
Richard: [00:28:08] Thank you, Daniela. Barb.
Barbara: [00:28:11] Thanks. Yes. All really good points. And just again, to pick up on on what has been said, I mean, the main difference between what medical malpractice litigation is and just general tort litigation is that you don't you're not dealing with an insurer. You're dealing with an association for the doctors, at least that their mandate is to defend doctors. It's not to settle cases, to shut their cases down for economic reasons, rather, it's to defend doctors. And and so, yes, they have a huge resource, not just in Ontario, but across the country, that will give them the resources that they need to fight these cases and defend the doctors. But but Daniela raises a good point, which is that the way in which they litigate these cases and the law that has developed because of the way they litigate the cases, both through to not only court appeal through the Supreme Court, is that you have us now having to jump hoops in order to succeed. So, you know, it's not like when you have a car accident, you can easily point to the cause of the injury. We have to not only prove that the injury was caused by the negligence of the doctor, but we have to prove things like they would have had the diagnosis, they would have had the x ray and the x ray would have shown a certain thing that would have led to the diagnosis, that would have led to the treatment, that would have led to a different outcome. So so there's all these various points we have to make and that would require various experts. You might need an ER doctor to give an opinion on standard of care. You need a radiologist to opine what a radial and the timing of imaging, for example, and then what a radiologist would have reported and whether that would have then led to a diagnosis by a cardiologist and that that test would have been given within a certain time period. So so the amount of experts that are now required to prove the cases has grown exponentially, in my view, and and expense along with that, because expert reports are getting more expensive. As Daniela said, the longer they are, the more complex they are, the more thoroughness they have to be. It just increases the cost. So that's the challenge with the costs associated with Med Mal and and like Heidi and Richard and Daniela, we we fund these cases for our clients because they can't afford to do that. And so it is an access to justice thing. And so and the other thing is we have to do it upfront because we need to know whether this is something to invest in for the clients to ensure that they get a good result. So yeah, those are my comments. It just it's a very challenging, costly thing to do. But, but fortunately we've been able to be successful against them. So that's the good news.
Richard: [00:31:24] The what I want to talk about, which is some of the slides. The C Slide ten. One of the things I want to talk about that feeds into and is really a symptom of what? Of medical malpractice litigation or a reason why things are so costly. Let me put it that way. Why these cases are so complex and costly are because of the issues involved. The medical malpractice standard of care. A standard of care generally is not the most difficult issue to surmount, but causation is and it's on causation when many cases will fail. And causation as as Barb was alluding, was giving an example of a delay diagnosis case, for example, all of the steps that one must go through in order to establish causation. Consequently, so many cases are lost on the issue of causation, and consequently access to justice in many ways is denied. And that goes to really the great challenge of medical malpractice litigation. Not only we're going to talk about it more when we get to the future of medical malpractice, not only do the reports have to address all the issues, because if they're not addressed, the expert will more likely than not not be permitted to testify at all unless there's a unless the the issue is somehow latent or touched upon in the report. There is a series of cases that have dealt with that very issue. So it becomes very complex. The reports have to be so have to be thorough. They have to be detailed, they have to be rigorously analyzed. And if they're not yet, the case can fall up a fail at trial. And again, that creates the expense that affects access to justice. And more often than not, on the issue of causation, it becomes very, very burdensome to it's a burdensome test. And the test for causation, if I have that on the test for causation, is from a case called in Supreme Court accountant called Clements and Clements. And that case has set what is called the but four test for causation. And how that's applied continues to challenge plaintiff's counsel, defense counsel, juries and judges alike in applying that test. So these are some of the tremendous challenges that plaintiffs face in getting there, getting access to justice. And we'll talk about more when we get to when we get to the future of medical malpractice. I want to I want to go back on before to some of the actually to the overview. And I want to ask the panel, can we just get to the overview slide? Oh, here we are. When assuming now we've had an investigation, we spent the ten or 15 or 1000 or more sometimes depending on the nature of the case. Certainly if it's a birth trauma case, the investigation could end up costing 25 or 50,000 before you even know, before you've even gone to discoveries. Let's assume now that you've done your investigation, you've chosen the case. It has a significant or monetary threshold, significant damage assessment. We're now proceeding to discoveries. Let me ask you this, Barb. Do you when you proceed to discovery, when there are multiple parties, multiple defendant doctors, not all of them who are targets and multiple nurses, not all of them who have any involvement, do you as a practice and because of limitation issues name the peripheral defendants initially.
Barbara: [00:35:08] So the short answer is yes. And and the reason I do that is because we are faced with limitation dates. And and oftentimes if you go to a discovery and you find out from a doctor that they're now pointing the finger at a nurse and you haven't name the nurse or you haven't name the hospital, that could cause a problem for you. Now, hospitals may be vicariously liable for the nurse, but but oftentimes you want that nurse's evidence anyway, right? You want to know what happened in that delivery room? What did that nurse say? What did the doctor say to that nurse and what was going on? What was the scene like? What was the environment? So so the evidence from these people can be imperative and there may be no other way for you to get that evidence than through a discovery process, because nurses, for example, may be still employed by the hospital and you have no way of getting in touch with them. So so that's why we typically will add the peripheral defendants. It's not nice to have to be sued and be examined for discovery by a bunch of lawyers. And so we're conscious of that. And sometimes there are cases where I think, you know, it would be awful to have to bring the nurse in and examine them for discovery. And and I have occasionally said to the hospital's counsel, look, I'm prepared to interview them in advance of discovery to find out what their evidence is, and then maybe we can make a deal about letting them out. But but oftentimes you want to know what physician the doctors are going to be taking on this before you you let people out. You know, it's more about the pointing the fingers. Although the doctors don't typically want to point the finger at another doctor, it's rare, but it does happen. And they get their own counsel. But you do still get them to through their discovery process, it seems to be inevitable that they will say, well, so-and-so was supposed to be the most responsible physician, not me, for example. And if you don't have them in the lawsuit, then you you've missed and you're missed the limitation. You can't bring them in or it's difficult to do that, if at all. So that's the main reason, I would say, Richard, why I would bring in peripheral defendants. I'll put I want to move on to other topics and I'll just leave this topic by saying we name all the peripheral defendants because of those issues, and we won't generally drop a party who've been named unless the other parties say they're not pointing any fingers. So they're going to have to elect to say we're not alleging any negligence on this particular nurse or that or that physician. Otherwise it becomes really too dangerous, particularly as cases evolve over time. I want to I want to move to expert selection. I'm going to and I'm going to ask Heidi and then Danielle and then you, Barb, to weigh in on expert selection. Heidi, what are the criteria that you consider in choosing an expert, whether it's for jury trial or non jury trial?
Heidi: [00:38:26] Thank you for the question. The the experts that we look to initially may not ultimately be the experts that are going to testify at trial. Initially, we want to ensure that we have a case on standard of care and. Preferably that expert. If we need to have that expert testify in trial, will be our expert throughout. And I think we we start with a view of trying to find an expert who would be capable, qualified and able to testify in a court of law. Retired doctors cannot now testify typically. So we we may look to a retired doctor to give us a preliminary opinion, but that retired doctor who has been out of practice for quite some time, would not be our trial witness. So assuming we have a practicing doctor who has an active practice, that would be my first preference. We would want an expert who is qualified for the field that we require the opinion in, and an expert who has testified previously in court would also be an asset because ultimately in court there are cases that deal with the issue of bias. And if a doctor has testified on behalf of plaintiffs and defendants, that expert would certainly have a great deal more credibility and weight ascribe to his or her opinion. We also would be looking to an expert who has. Good people skills. I'm always looking for an expert who's going to develop a rapport with the trier of fact and over the number of trials that we've done. A folksy expert who can explain things in very simple language, very plain language to a jury is tremendously beneficial and gets you almost more than half your way through. If if a connection is made between the expert and the jury, it's not so much a consideration with the judge who is is more familiar with the nuances of the case and the law and so on. But with the jury having someone who makes good eye contact, who has good teaching experience, if they're a professor at a university and they're accustomed to teaching and breaking things down and using charts and graphs and demonstrative evidence very effectively to help the jury understand the complex legal issues. To me, in our experience, in the so many trials that we've done and the trials that we've won, it is largely on account of that type of expert who can really almost make things so difficult, seem so basic and easy. So those are some of the criteria that I look for. Richard, you're on mute.
Richard: [00:41:46] Daniel. Sorry. Daniela, could you. Could you tell us what criteria you consider in selecting experts?
Daniela: [00:41:55] Sure. I think a lot of what Heidi mentioned is very important. But I'm going to take a bit of a different track to think about this issue, as Heidi mentioned. You really have to start from the beginning, right when you get the case looking at all of the issues. And so the first thing I ask myself is what answer to what question is going to get me farthest in this case? And what do I mean by that? If, given my experience or given that we've seen a couple other cases like this, the standard of care issues seem relatively straightforward. Then the first expert I'm going to go out and get is a causation expert who can speak as broadly as possible to the medical concepts and the causation questions that I think are going to be asked. And, you know, even if it is a standard of care issue as well, if you can get a two for one, as I like to call it, then I think it's even better if you can get a specialist to comment on the standard of care and at a later time get a further additional expert then. Then I think that's also really appropriate. But I think as we mentioned, right, it's so expensive to launch these cases and so I try and be as efficient as I can be right from the get go. In terms of selecting my expert, the next thing I like to think about is whether I feel I need a practical type of expert or an academic type expert. And I think there are really different benefits, really benefits and drawbacks to each type depending on the case. And so in if you're in a rural community and the issues seem relatively straightforward, you want someone who's had experience in that practice. Milea Or a clinician who's really seen those issues. If you're like us, which I'm sure all of us here have encountered this, where, you know, you have a feeling that there's going to be a whole lot of esoteric medical issues coming up at trial. And you feel that you'll need the weight of an academic expert who researches in that area to really explore those questions. That's also a consideration that that I like to give. The one thing and it's interesting, I actually prefer the opposite of Heidi. So this is perhaps great about this webinar. When I choose an expert, I would much rather prefer that the expert is trial naive. I think some of the best experts I've ever seen in a courtroom are ones that have no experience in a courtroom and are just honest. And they don't have bias. They've, you know, they've maybe reviewed cases for both sides, but they sides, but they've never been required to testify. And I just think they bring a real legitimacy to the medical evidence. They're clinicians. They're coming there to just talk about their day to day lives. They're not hired guns. They don't care. And in fact, a trial I was lucky enough to work on with Barb and my first year of practice, we had that in a causation expert, and it was some of the best cross-examination I've ever seen. When asked if he was being paid for this, I believe his answer was something along the lines of I get paid for this because he had never given an account before. And I think in front of a jury it was singularly, well, I don't know. Barb has a lot of good answers in front of good moments in front of juries. But that for me as a young lawyer, was was something I remembered. So certainly I liked. I like that vibe. I like someone who's not going to give the block standard answers that all experts usually give. Or they've been around the scene too much.
Richard: [00:46:08] Barb. Could you weigh in with your criteria?
Barbara: [00:46:11] Yes, sure. And Daniela and Heidi have put it very well. And I echo what Daniela has said about the sort of what I call the in the trenches kind of doctor for standard of care. You like that person who's who's dealing with this every day needing to deal with the issues that the very issues that you're faced in this lawsuit. How would they deal with it? What's the standard? So I like to in the trenches for the standard of care. And I do agree I like ones that maybe haven't testified before, but I always do have a view. What kind of witness would they make if they went to trial in front of a jury? So I agree with Heidi on that. The other person and Daniela emphasize the academic expert. I like those academic experts for causation because those are the ones that are going to educate the judge and the jury. And so and those are a little bit more complex. So understanding that with the medical literature, the medicine, you want that kind of academic. So that's what I look at in the trenches for standard and the academic for causation. And the only other thing I might add is that that getting them early on, as we've talked about, is key, but also having them help you through a discovery, particularly on the standard of care issues. But you can also get a causation expert to help you get the admissions you need for for your causation, too. So it's important to communicate with your your experts through the whole process of your litigation. You get your verbal opinion at the beginning, is this a case you want to proceed with or you get a draft report, you then go to your discovery. You're getting advice from them. You're you're getting a final report. Once they have a transcript from the discovery and they can finalize it and then they can update it prior to trial. It's that kind of relationship that you need to have with your expert, I think, in these cases.
Richard: [00:48:12] Thank you. Let me just add, I agree that for causation, you need the strong academic expert. Many of the battles will be will focus on causation, on standard depends whether it's judge or jury. You want somebody who's going to present. Well, and it's a balance on the case. It's a balance on the expert. Again, you need somebody who's who's going to be credible. It's going to be trustworthy, who's who's evidence is going to go in and be found to be reliable. Which brings me we are we're having such a great time with this panel that we're really running out of time. We have like 10 minutes left and we want to see if we can even have time for questions. But the focus, what we want to spend the last 5 minutes on before is the future of medical malpractice litigation. I want to just talk briefly about expert witness. I've written papers on Expert Witness and the role of expert. I've presented at conferences and I'm continuing to learn new things about experts because there's been a number of cases coming out in which the courts are weighing in right now. There has been a sea change in the role of the expert in how experts are received by the court since the Supreme Court of Canada decision in White Burgess and Langdale, which came out in Believe in 2015. That's one of the most important cases certainly of the past 20 years. And there's been cases building upon it in Ontario. There have been talks a bit about experts, the floor of the estate of Fleury, which is which came out not too long ago. And I should give everybody the citation for the Fleury estate case, which is 2022 on SC 24, I think 64. And then there's a case called Boone 2020 owens, I think it's 6937. I can read my handwriting, but they're both on camera. One is called Boon, BOONE the other one is the estate of Mary Fleury. And there's more and more cases coming. Those are just a few cases. Experts today really have to make sure that they are impartial, that they have considered both sides of the point of the issues, that they are giving their opinions freely, that they're really not advocacy advocates. The court has no more patience for if they ever had before, but they don't have any patients for experts who are advocates. And what is important is that the evidence based, the expert witness today, particularly on the areas of standard and causes and all the areas not just in not just in medical cases, but in all litigation cases, particularly tort litigation cases. Their conclusions have to be evidence based. They just can say, in my opinion, as a result of the injury was caused, as a result of the defendant's negligence, they have to they must explain. They must resort to literature. And if they don't, I think there'll be challenges to the admissibility of their opinions. The law has changed the environment has changed, and everyone practicing medical malpractice litigation must know what's expected of the expert and read the cases. Read. Chessman Read Parliament. Chessman The Chessman case is an all uncannily and on the Parliament case in a whole series of cases over the past three or four years dealing with the role of the expert. So you've got to be aware of that. The expert cannot just come into come into court and testify. Well, in my opinion, the breach of the standard of care, because, well, in my opinion, is breach of the standard of care. You can't have circular reasoning. It's got to be well reasoned, evidence based. And again, we don't have time to go through the case law because we have a little over 5 minutes left. And I wanted to go into something which I think is very important about the future of medical malpractice litigation. And and that's something which really is important not only to everybody attending this webinar, but all of us who practice in the field. And let me let me start with with Barb, and then I'll go to Daniela and then to Heidi. So, Barb, you tell us and we have a little over 5 minutes. Could you tell us about what you where you see the future of medical malpractice litigation going and certainly in the next 2 to 5 years, if we can even think that far ahead.
Barbara: [00:52:34] It's been hard to think two years ahead with COVID. Right. But I've been practicing exclusively or almost exclusively med mal for about 15 years. And I think over that time period there's been a tremendous rise in the number of med mal inquiries that I'm getting, and I expect that that's going to continue for some time. I think there's just more awareness, there's more discussions about it. People are starting to know that they have the right to sue doctors, even though we have both, you know, there's certainly more awareness. So I think that's going to continue for some time. But what I do notice as well is, is what's been commented on is that the litigation seems to be getting more contentious, more and more and more contentious. And I think it requires a strong commitment by the lawyer and the client. And obviously it's not for everyone, but I think that that's probably going to continue as well. I think that the CMPA has its mandate and and its mandate is to defend doctors and it's getting more challenging as we go. But so that's sort of the short term. The long term, I think, unless there's some. Political changes to it that I don't even know exactly what those might be or what look like at the moment. I don't know that that's going to change in the in the foreseeable future, in my view.
Richard: [00:54:11] Thank you. Daniela. We're going to ask you to confine your remarks, if you can, for about a minute or so, because I think I want to hear some questions.
Daniela: [00:54:18] I'm going to speak really quickly. I absolutely agree with Barb. I think that there's going to be an increase in cases, quite frankly, given the reduction in financial resources accorded to the health care sector. They are currently in a crisis. So I think they should we should all watch out for that. I think second, we're going to see more pushback from defense counsels, specifically on damages questions as medical costs soar and future care costs continue to soar as interest rates rise. I think we're going to see more arguments about trying to deduct segregated benefits or government benefits. I think we're going to see a tax to structures given the cost of structuring. And I think we're even going to see the attack of the hip segregation, anything to reduce the numbers as these cases will, I think, increase in value over time. And I think we're also going to see the taxpayer get squeezed in this issue as the taxpayer pays both ends of this issue, of this issue.
Richard: [00:55:29] Thank you. Heidi. I know we've talked about this at length about the future of medical malpractice and access to justice. Tell me your tell us your views about where you see the medical malpractice litigation going.
Heidi: [00:55:42] I agree with the comments that that my esteemed co panelists have have said. I go back to the statistics that even from 2017 that the CMPA was settling about 36, 37% of cases. I see that trend going down in 2017, six and one half percent of trial judgments were found in favor of the doctors, with only 1.6% in favor of the patient. My hope is that that's going to change, but I'm not optimistic. I see more lawyers trying to get into this field, a plaintiff side medical malpractice, which I think in many ways is is is terrific. But in other ways, I'm hoping that people will be encouraged to partner or to consult with experienced medical malpractice lawyers before they start to dabble so that we can try and continue the upward trend of positive case law developments in favor of plaintiffs. And and if you are thinking of getting into the profession that you will look to partner or consult with a lawyer who does this type of work, I am hopeful that the case law is we're seeing some very positive developments and trends in the case law that are that are in favor of plaintiffs. And I'm hopeful that that's going to continue. But my concern with the future is the is the prohibitive cost of experts and that the government is going to have to perhaps take a look at how we can better financially manage these cases so that we can provide more access to justice to the people who so badly deserve it.
Richard: [00:57:25] Thank you. I want to just add my comments. I am not optimistic about the future of medical malpractice litigation in Ontario or in throughout Canada. And the reason is, is the reasons are several. Number one, they're not a lot of law firms who do this work on a regular basis. All of the all of us are do this work on a regular basis. But there are not a lot in Ontario or I can tell in Canada. And the reason is the tremendous cost of litigating these cases. If you're having three or four or five cases ready to proceed to trial in any given year, you're spending hundreds and hundreds of thousands, if not millions of dollars, getting cases ready. The average case, if it's going to go two or three weeks, is going to cost hundreds of thousands of dollars of time and additional disbursements. Forget about the tens of thousands of dollars of disbursements. We're not talking single issue cases or the prototypical of a of a sponge left in the abdomen during surgery. We're talking about multiple issue cases, complex cases. The cost is prohibitive. Not a lot of lawyers have the wherewithal or the willingness to take on these cases. Even if they win, they'll have to wait years before the case goes to the Court of Appeal because they are invariably appealed. And the difficulty is the cost. The cost of experts, the cost of fighting, fighting for for justice is very expensive and it takes time to get to court. The other difficulty is structural, dealing with the difficulties in the law. Expert reports the restrictions on what experts can say if it's not in their report, all of which have a bearing on access to justice, we believe, and also the fact of causation, until there's going to be cases which will revisit or re-evaluate or or reconsider in some way. Clemens and Clemens, these cases are going to be harder to fight. And because they're harder to fight, less lawyers will fight them. And because they're harder to fight, less lawyers will fight them, less access to justice. So that's the that's the high level analysis, so to speak. And we're only have a minute left on on the future. It's bleak, but you hope that things will change and the changes will have to will take time. The changes will have to be when the courts will have to revisit Clements. If the causation test is made easier, I think there'll be greater access to justice because I believe and I haven't looked at the statistics and I should later on. But my own anecdotal evidence is most cases are lost on the issue of causation, then on standard. And until that issue is going to be addressed or revisited, these cases are much more, much harder and the cost is becoming much more prohibitive as time marches on. We are now at 1:00. I cannot believe it. This has been a fantastic I thought I've enjoyed myself. I hope all of those who have listened have enjoyed myself. I want to thank Barb and Daniela and Heidi for participating. This has been, I think, a superb panel discussion. I hope the panelists enjoyed it. I think that we've all shared our some of our insights and the limited time we had. We should probably do this again sometime soon. But we've I think I hope all of you have left being more aware of what medical malpractice litigation is all about, the challenges, the costs, and knowing that access to justice is important to all of us. We believe in it. We believe we will take on cases to help people obtain access to justice. To secure justice for what? For their wrongs. And we all have, as I say, our criteria, and we will continue. And all of us deserve our thanks. I would say I think every lawyer who does medical malpractice deserves tremendous admiration, respect and credit, because these are the most difficult cases. We take tremendous resources and tremendous fortitude. Tremendous fortitude to take on these cases and to litigate them. And I thank all lawyers who who represent plaintiffs for litigating these cases and for seeking justice for their clients. And that concludes our program. Thank you all.
Barbara: [01:01:32] Thank you.
Richard: [01:01:34] Bye bye, everyone. Thank you. I don't I don't know if there's going to be any further discussions, but but that's the end of it. And thanks again for participating. Bye bye.
Host: [01:01:44] Bye, Thank you.