Cross-border malpractice coverage cancelled

After more than a decade of warning members about the litigation risks of treating Americans, the Canadian Medical Protective Association (CMPA) will no longer cover doctors who willingly take them on. The association cites an “unstable” insurance situation in the United States as a major impetus for this policy.

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Figure. Dr. Harold Silver says Americans are attracted to his Toronto clinic becausee of lower surgery costs and Canada's stellar health care reputation. Photo by: Canapress

“The costs of settling or even defending these cases is now so high that we're seeing many medical malpractice insurers in the United States either abandoning the market or driving up their premiums to the point where physicians can't afford malpractice insurance,” says Dr. John Gray, CMPA executive director and CEO.

The American Medical Association has declared 20 states “in crisis” because insurance costs have driven physicians away, compromising health care.

“Despite our ... warnings to members about avoiding legal actions, we saw more and more members who actually were ... increasing their exposure by actively soliciting American patients,” says Gray.

American clients seek lower prices for procedures such as cosmetic surgery in Canada.

The CMPA's new policy, which came into effect in January 2004, applies only to elective procedures. Doctors treating non-Canadians in cases of emergency, or for humanitarian reasons, will still be covered.

Vaughan Black, a University of Dalhousie law professor, has studied cases of damage compensation across the US–Canada border. The CMPA's concerns appear to be justified, he says. While he knows of no cross-border medical malpractice suits, a Supreme Court decision late last year (Beals v. Saldanha, 2003) upheld the major damages a US court awarded against a defendant in Canada involved in a real estate dispute here.

Black suggests the Supreme Court decision would limit the ability of Canadian courts to refuse medical malpractice settlements.

The CMPA provides members with unlimited coverage, which may be an enticing target for US litigants, says Gray. “A single legal action could wipe out CMPA's reserves.” — Tim Lougheed, Ottawa