Lawyers trying to stop malpractice merry-go-round

During a Canadian Medical Protective Association (CMPA) conference in 1998, a small group of lawyers representing patients and physicians agreed that something had to change in medical malpractice litigation — costs were skyrocketing and proceedings seemed endless.

The result was the Holland Access to Justice in Medical Malpractice Group, a loose association of about 10 lawyers that has since tackled issues such as the sharing of expert witnesses, the cost of future care and the impact of limitation periods that vary across the country. In effect, the group has put the entire culture of malpractice litigation under the microscope.

It is named after Ontario Supreme Court Judge Richard Holland, who spoke about mediation and damage issues during the 1998 conference and then offered his home as a neutral meeting place for lawyers wanting change. Holland, who died in March, was well known for popularizing pre-trial settlements and was a leading advocate of alternative dispute resolution.

Margaret Ross, the CMPA's general counsel, and Scott Ritchie, a litigator from London, Ont., are de facto leaders of the group. Its creation is somewhat surprising, given the adversarial relationship that typically exists between lawyers on the 2 sides, but it has already made headway on the use of expert witnesses.

Usually, both sides hire their own experts, who then duel over the cost of future care, life expectancy and the other issues common to malpractice cases. However, this increases both costs and the time a case requires.

The group is developing a panel of experts in areas from orthopedics to economics who will be able to work with both parties. The nonpartisan experts will be paid jointly; in 2000, the CMPA spent $9.2 million on expert witnesses.

Ritchie says cases often drag on needlessly. “Let's say the real issue is liability, but the time spent arguing damages can take just as long as for liability. If the real issue is liability, let's hive off the damages into mediation or arbitration.”

Perhaps the enduring legacy of the Holland group will simply be the dialogue it has encouraged. “In our adversarial system, patients have the right to advance their claims and physicians have a right to their defence,” says Ross, whose association spent $69.6 million on legal fees in 2000. “There will be cases where we have genuine fights. But along the way, we can talk and manage our cases in a reasonable way — we can learn to agree on certain facts and documents.”

Canada is far from alone in facing problems. In the UK, where 23 000 medical-malpractice cases were outstanding in March 2000, the government is planning a major overhaul of the system.

It is considering replacing lump-sum settlements with annual payments, and ministers are working toward a system in which more complaints will be settled through mediation.

Back in Canada, the Holland Group's message — more cooperation, less conflict — is slowly getting out, and despite Holland's death the group that bears his name continues its work. More information is available at www .advsoc.on.ca /what /Nov_2001 .pdf. — Susan Lightstone, Ottawa