Is winning a medical malpractice case against a doctor at trial a long shot?
Over the last few years, in-depth explorations of the issues surrounding medical malpractice claims have been published in the Toronto Star, National Post and Globe and Mail. All three of these news outlets have discussed the perception that it is inordinately difficult to succeed in these kinds of cases. Medical malpractice plaintiffs face several hurdles that range from the inability to find medical malpractice counsel to the lack of open dialogue from the medical system as a whole. If plaintiffs manage to successfully navigate the interlocutory hurdles along the way, their odds of winning aren’t exactly stellar.
There are two reasons for low medical malpractice success rates that are frequently cited in these discussions. The first is the difficulties involved in proving that the applicable ‘standard of care’ was not met by the medical care provider. The second is how vigorously the Canadian Medical Protective Association (CMPA) defends these cases. Loom Analytics ran a Hearing Outcome Report on non-jury trial success rates for medical malpractice actions in the Ontario Superior Court of Justice for 2014 to present. We also ran a similar report for all other types of personal injury claims (for instance: motor vehicle accidents, product liability, slip and falls) for the purposes of comparison.
The first question to address is whether or not it is especially difficult to get a medical malpractice case in front of a judge. The Globe & Mail reports that Canada-wide, “Of more than 4,000 lawsuits filed against doctors from 2005 to 2010, only 2 per cent resulted in trial verdicts for the victim.” This certainly sounds like a very small number, but the Government of Canada’s Department of Justice statistics show that “98 percent of civil suits never make it to the courts." So it does appear that a medical malpractice suit is no less likely to make it to trial than a civil suit in general.
From 2014 to present, our data shows that only 8 medical malpractice trial decisions have been authored in the Ontario Superior Court of Justice. Again, this sounds like an extremely small number, but it is reasonably consistent with the number of medical malpractice cases you would expect to see given the proportion of civil cases heard in Ontario.
Of the eight cases heard from 2014 to present, four were decided in favour of the plaintiff and four were decided in favour of the defendant. Success was essentially a toss up. For comparison, for all other personal injury claims, the plaintiff succeeds at trial 63.64% of the time and loses at a rate of 34.09%. Though more data is needed, these numbers may support the view that it is more difficult to succeed in medical malpractice matters.
As we add more decisions to the Loom Analytics database, a follow-up post will be published within the next couple of months looking at data back to 2010 to see if this pattern holds true.
All reports and statistics discussed in Loom's blog posts have been run on Loom Analytics. If you would like to run these reports or customize them further to fit your parameters, please visit http://www.loomanalytics.com.