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Medical Malpractice Litigation

 

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Background

Of the 1400 actions Canadian medical malpractice actions started annually, nearly two-thirds are abandoned and 30% are settled. The Canadian Medical Protective Association (CMPA) averages $100,000 in disbursements for the 7-8% of actions which proceed to trial, and wins 3 out of 4 judgments. In cases of severe brain damage, the CMPA may settle in the $2-3m range. Conversely, unless negligence is blatant, actions with a quantum of damages of less than $100,000 are rarely worth pursuing.

Strategy

As 95% of plaintiff successes are settlements, and trial costs and risks are so high, effective strategy for plaintiff counsel involves painstaking selection, and positioning for early settlement. At least 95% of would-be clients have no viable cause of action. Most enquiries can be rejected on legal and commonsense grounds. Of the remainder, only a minority achieve a hat-trick: viability on standard of care, causation and quantum.

Consulting Services

Legal medicine resource physicians and medical expert witnesses have different and complementary roles. Resource physicians are concerned with the big picture and with cost-efficient litigation strategy; we understand legal causation and its fundamental differences from medical causation; our communications with you are privileged, and we speak plain English and legalese. Because we take time fully to understand the whole case from a medical perspective, our service is initially more expensive; because we recommend tackling the weakest link first and understand the medical weaknesses of the defence position, our approach is ultimately more economical.

Our specialised legal medicine assistance begins with meticulous and exhaustive assessment. Our opinion on the strengths and weaknesses of 1. standard of care, 2. causation and 3. quantum of damages, from a medical perspective, is supported by abstracts of relevant and authoritative medical research and extracts of contemporaneous textbooks. When necessary, specialists and subspecialist clinicians are consulted.

Reports: New, more flexible fee schedule: Written viability report with fully referenced structured arguments $1000-2000 Verbal report with research and textbook extracts $750-1000 Quick overview assessment of viability $400. Dispassionate, balanced and confidential to lawyer and client, these resource reports include strategic recommendations.

Requirements: 1. secondary or "original" copies of all relevant clinical and medicolegal documents; 2. client's version of events; 3. retainer cheque for $802.50 ($750 plus GST) payable to Medical Litigation Consultants; and 4. the lawyer's undertaking to remit any balance of fees within 30 days of report preparation.

We recommend clinical specialists for expert opinion only in cases we have judged by the above process to have no fatal flaws. Such recommendation involves our researching, identifying, critiquing, and communicating with potential candidates about the case. Physicians willing and able to provide quality expert opinion for medical malpractice plaintiffs are rare. There is no guarantee the expert will support the plaintiff's postion, but we select when possible for both fairmindedness and credibility. Fee per referral is $250 plus GST.

Quality and relevance of written expert medical opinion is materially increased by our provision of carefully-crafted, forced-choice questions which should be addressed. Fee $250 plus GST.

For viable actions, our primary goal is to assist plaintiff counsel to achieve fair and early settlement, and we are available as an ongoing resource. Additional services include legal research, phone consultation, advice on litigation strategy, provision of questions for Examination for Discovery, critique of written expert opinion for both format and content and cross-examination strategy.