1036
McGILL LAW JOURNAL
[Vol. 26
Alternatives to the Court Process for
Resolving Medical Malpractice Claims
Introduction
With cases of medical malpractice sharply on the increase in
Canada, there is growing apprehension among physicians. Potential
plaintiffs remain concerned over the great financial risk involved
in suing a physician. Many doctors feel uncomfortable with the
courtroom and its method of discovering truth through cross-exam-
ination. After some exposure to the courtroom, either as expert
witnesses or as defendants in malpractice claims, many physicians
come to regard it as an alien environment.’
Physicians also regard the potential law-suit as a barrier in the
trust relationship that is so often essential to establish a favourable
chance of recovery.2 They perceive that medical realities are quickly
reduced to the rhetorical battles of legal experts and that the expert
witness is degraded and subjected to a physical and mental ordeal.
If the process is protracted, the doctor regards the commitment of
energy and time as a distraction from the primary responsibilities
of his profession. For.the medical man, the courtroom is as in-
timidating as the operating room to the lawyer. Ultimately, the
adversarial method of administering justice may be the single most
important deterrent to cooperation between law and medicine.3
From the lawyer’s standpoint, based on an education in the art
of advocacy, the law-suit is not, and cannot be made, a scientific
investigation for the discovery of truth 4 On the other hand, the
adversarial approach is a foreign concept in the training and work
of physicians, which reflect a cooperative, inquisitorial approach.
This tension between the outlooks of the two professions serves
on the one hand to fuel the aggressiveness of counsel and on the
other brings a response of suspicion and mistrust from the healing
Temple L. Q. 359, 362.
1 See Polsky, The Malpractice Dilemma: A Cure for Frustration (1957) 30
2 See Stetler, Medical-Legal Relations – The Brighter Side (1957) 2 Villanova
L. Rev. 387, 390.
3 See Child, “Lawyers, Doctors and Medical Malpractice: A Surgeon Reacts”
in Institute of Continuing Legal Education, Medical Malpractice, 2nd ed.
(1966), 43, 47.
4 See Polsky, supra, note 1.
19811
COMMENTS – COMMENTAIRES
1037
professions. As a result, plaintiffs in medical malpractice suits often
find it difficult to obtain a willing medical expert to testify on their
behalf.
This comment will explore an alternative to the court as a forum
for resolving disputes arising out of the adverse results of medical
treatment, as well as an alternative to the necessity of fault-finding
as a prerequisite for the compensation of persons suffering such
adverse consequences.
I. Compulsory arbitration
One alternative to the court process involves the utilization of
a different mode of adjudication,6 a special forum for dispute res-
olution with an element of expertise and the authority to make
the final decision save for an appeal on limited grounds, such as
jurisdiction. Arbitration is the chief alternative adjudicative pro-
cedure that has been suggested.” The perceived advantages 9 provided
by arbitration are many. First, the setting is removed from the
formality of the courtroom’
to a more relaxed environment. One
Michigan surgeon suggests that:
the needs seem clear to me –
to devise new settings, new instruments
and new proceedings whereby the wrongs of medicine, real or imagined,
can promptly be converted to reasonable dollars. Surely a better way
5 See Louisell & Williams, Trial of Medical Malpractice Cases (1960);
Armstrong, Medical Malpractice – The “Locality Rule” and the “Conspiracy
of Silence” (1970) 22 S. Carolina L. Rev. 810, 818; Markus, Conspiracy of
Silence (1965)
14 Cleveland-Marshall L. Rev. 520, 523; Kelner, The Silent
Doctor – The Conspiracy of Silence (1970) 5 U. Richmond L. Rev. 119; Belli,
An Ancient Therapy Still Applied: The Silent Medical Treatment (1956) 1
Villanova L. Rev. 250, 251, 254; Smookler, Doctors’ Conspiracy of Silence
Often Makes Them Their Own Worst Enemies The Medical Post (April,
1972), 27.
0 See King, Malpractice Prevention: A Bi-professional Approach (1971) 582
Ins. L.J. 335, 338.
7See Wetherall v. Harrison [1976] Q.B. 773.
S Black’s Law Dictionary, 5th ed. (1979) defines arbitration as “[tlhe ref-
erence of a dispute to an impartial (third) person chosen by the parties
to the dispute who agree in advance to abide by the arbitrator’s award issued
after a hearing at which both parties have an opportunity to be heard.” An
arbitration clause is defined as “a clause inserted in a contract providing
for compulsory arbitration in case of dispute as to rights or liabilities under
such contract.”
9 See generally Bergen, Arbitration of Medical Liability (1970) 211 J.A.MJA.
175, 176; Adams, Grievance Arbitration and Judicial Review in North America
(1971) 9 Osgoode Hall U. 443, 448.
‘0 Marshall, Medical Evidence in Malpractice Actions (1970)
18 Chitty’s
L. 6, 7.
McGILL LAW JOURNAL
[Vol. 26
from clashing personalities,
than is now apparent can be devised which will divorce the whole of
malpractice actions
throbbing emotions,
and failures in communication. Certainly surroundings and roles can be
made available in which doctors, lawyers, -and clients are at ease and
effective, naturally as well as by training and by practice.”1
In addition, and aside from the obvious savings in
time and
expense, 12 is the fact that the arbitrator on whom the parties must
agree and to whom specific questions can be submitted for decision,
will usually possess a sophisticated degree of expertise. 3 The greater
informality and speed provided through arbitration and the con-
fidentiality of the proceedings are major advantages over the formal,
publicity-ridden’ 4 adjudication of disputes in the courts.
An examination of existing schemes 15 may well prove instructive.
All subscribers to one health care plan in Los Angeles’ 6 sign a
contract containing the following clause:
In the event of any controversy between the subscribing group and the
subscriber or dependent, or the heirs at law or personal representative
of the subscriber or dependent, as the case may be, and Ross-Loos, when
involving a claim in tort, contract or otherwise,
the same shall be
settled by arbitration.
“1 Child, supra, note 3, 53.
‘2 See Santoorgian, Arbitration of Third Party Liability Claims: One Com-
pany’s Experiment (1969) 24 Arbitration J. 161, 163. Indeed, a primary concer
among insurers, the uncertainty of leaving the quantum issue to a jury,
could be dealt with through agreement by the parties to limit the size of
awards, with such restriction to be included in the arbitrator’s terms of
reference.
13 See Bergen, supra, note 9, 176.
14 Secrecy, and the resultant benefit to the physician-defendant’s reputation,
is often cited as one major advantage to arbitration. However, even
if
arbitrations are held behind closed doors, if the practice becomes widespread
or compulsory, the pressure to publish reports will be irresistible both as
a guarantee of fairness and to promote uniformity in awards.
15 Most common law jurisdictions provide a mechanism whereby parties
to an existing dispute can agree to submit it to arbitration and enforce the
decision of the arbitrator. See An Analysis of State Legislative Responses to
the Medical Malpractice Crisis [1975] Duke L.J. 1417, 1464, n. 235. The Arbitra-
tions Act, R.S.O. 1970, c. 25 (as am.) provides that a written agreement to
submit present or future differences to arbitration, unless a contrary intention
is expressed, is irrevocable, except by leave of the court, and has the same
effect as if it had been made an order of the court, and where an appeal
is provided for -it is to a judge in court and from him
to the Court
of Appeal. Thus, in Ontario, parties about to enter a contract, such as a
patient and physician or hospital, can agree to arbitrate any dispute that
may in the future arise out of such contract. For a Pennsylvania plan
requiring arbitration of personal injury claims under $3,000.00, see Bergen,
supra, note 9, 175, 176.
1’Referred to in Lillard, Arbitration of Medical Malpractice Claims (1971)
26 Arbitration J. 193, 197, 198.
19811
COMMENTS – COMMENTAIRES
The validity of this clause was tested in a case 7 where the
child of a subscriber to the plan was injured allegedly as the result
of malpractice. The Court held that the clause was a reasonable
restriction on the forum for settling disputes and that a father
could contract for medical care which would bind his children to
arbitration of any dispute arising under the scheme.
Standard practice in several California hospitals is to include
in their admission form to be signed by all new patients the follow-
ing clause:
Arbitration Option: Any legal claim or civil action in connection with
this hospitalization, by or against hospital or its employees or any doctor
of medicine agreeing in writing to be bound by this provision, shall be
settled by arbitration at the option of any party bound by this provision,
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association and with the Hospital Arbitration Regulations of
the California Hospital Association (copies available on request at the
hospital admission office), unless patient or undersigned initials below or
sends a written communication to the contrary to the hospital within
thirty (30) days of the date of patient discharge.
If patient, or undersigned, does not agree to the “Arbitration Option”,
18
then he will initial here.
As of 1971,’19 100,000 patients had agreed to this arbitration
option while only a handful rejected it. The procedure requires each
party to pay a fee to the American Arbitration Association when a
dispute arises. In claims under $20,000, 0 one arbitrator (a lawyer)
is appointed, while in larger ones, there are three (a physician,
lawyer and businessman).
Two difficulties immediately come to mind with respect to such
agreements. First, the voluntariness of the patient’s agreement may
be suspect, particularly where hospitals require patients to sign
as a condition of admission.2’ Also, the physical and mental con-
dition of the patient may in itself raise doubts as to the patient’s
capacity to agree to anything. Second is the onus imposed on physi-
cians and hospital employees to carefully explain the ramifications
17Doyle v. Guiliucci 401 P. 2d 1 (Cal. in banco 1965).
‘8 Referred to in Bergen, Medical Arbitration Experiments (1970) 211 J.A.M.A.
351, 352.
10 See Lillard, supra, note 16, 198.
20 See Bergen, supra, note 18, 352.
21 While most -such contracts give the patient the ability to rescind the
agreement, the period provided is usually quite brief and the patient is
required to take positive action to do so in circumstances when he is still
dependent on the good-will of the physician. See An Analysis of State
Legislative Responses to the Medical Malpractice Crisis, supra, note 15,
1466, n. 252.
McGILL LAW JOURNAL
[‘Vol. 26
of such an agreement to the patients, including the fact that they
are relinquishing their rights to a trial.2
A model arbitration agreement has been proposed 23 which in-
volves reducing the implied physician-patient contract to writing.
The contract contains a provision for arbitration of future disputes
arising from the treatment in consideration of the physician’s agree-
ment to undertake the treatment and provide his services.24
Ontario physicians or hospitals could conceivably adopt such
a procedure providing for arbitration, and for agreement on the
selection and qualifications of the arbitrators. The provisions of
The Arbitrations Act2 would then apply and any court intervention
in the malpractice dispute would be limited to review by way of
appeal. 26
22This is of particular importance in the United States where
exists a state-guaranteed right to a jury trial: see ibid., 1466, n. 252.
23 Lillard, supra, note 16, 212, n. 40. Lillard’s model includes the following
there
provision:
In consideration of the above named Physician’s agreement to undertake
the treatment ‘of the undersigned Patient, and in further consideration
of the substantial professional services to be rendered to said Patient
by said Physician, and in full acknowledgment of the dangers to said
Patient which may be inherent in or result from said treatment, the
undersigned Patient, the undersigned spouse of Patient, and the under-
signed Physician hereby respectively convenant and agree that each and
every case, controversy, claim, declaration, suit, complaint, action or
otherwise, whether in contract or in tort, which may hereafter arise
for any reason or from any cause or source between or among any or
all of said parties, their respective assigns, heirs, and/or legal represent-
atives, shall be settled only in accordance with the Rules of the Ameican
Arbitration Association as hereinafter modified and judgment upon the
award rendered by the Arbitrators shall be entered in a Court of Record
having jurisdiction thereof. The parties hereto further acknowledge their
understanding and/or agreement:
1. That arbitration can provide a speedier, more efficient and more
economical method of determining disputes or controversies between
them than the normal determination by a Court or Jury.
2. That these parties have specifically been afforded an opportunity
to discuss this Agreement with their respective attorneys before its
execution.
3. That each party to an arbitration initiated hereunder shall have
the right to use any discovery procedure which would have been
available in a civil action pursuant to the (State) Court Rules and
the Arbitrator(s) shall regulate such discovery.
24This undoubtedly represents consideration in addition to his usual fee.
25R.S.O. 1970, c. 25, ss. 4, 7, 9, 13, 14, 16 & 26.
26 Where no provision allowing an appeal appears in the agreement, a court
may still interfere if and when any error of law appears on the faco of
the decision by the arbitrator: see Faubert & Watts v. Temagani Mining
1981]
COMMENTS – COMMENTAIRES
While it is arguable that arbitration might not resolve the pa-
tient’s difficulties in obtaining expert evidence, the informal setting
and the medical qualifications of one of the arbitrators may ease
this burden. The expense-saving factor would serve as a major
impetus to plaintiffs, but this course would also be attractive to
physician-defendants because of the private forum and to their
insurers where agreed-on limitations in the size of awards are in-
corporated in the questions put to the arbitrators. All in all, arbitra-
tion appears to provide a viable option to the court process as a
dispute resolution mechanism for handling malpractice claims.
II. No-faidt medical malpractice insurance
Certain courts have demonstrated a propensity to abandon the
negligence rule of liability in favour of a theory of strict liability 7
for certain types of adverse results of medical treatment. While some
rigorously oppose such a position 8 in recent years, buoyed by the
successful application of no-fault principles to the car accident
arena, suggestions have poured forth29 holding out this innovation
as a panacea for the medical accident scene. Typical are the remarks
of Carlson:
A no-fault system strips away the interrogative aspects of malpractice
and focuses instead upon the nature and extent of a patient’s prognosis.
Co. Ltd. [1960] S.C.R. 235. If arbitration were to be imposed on the parties
legislatively as a complete substitute for the court process (see An Analysis
of State Legislative Responses, supra, note 15, 1465, n. 246), either party
could bring a motion for judicial review pursuant to The Judicial Review
Procedure Act, 1971, S.O. 1971, c. 48 (as. am.).
27 A position suggested by several writers. See Miller, Cases of Uncertain
or Unknown Causation and Negligence: Relationship Analysis as a Real
Alternative to Present Inadequate Concepts [1968] U. Kansas L. Rev. 209,
235; Tunc, A Little-Noticed Theory in the Law of Tort: Boris Starck’s Theory
of Guaranty (1973)
121 U. Pa L. Rev. 618, 621; Keeton, Compensation for
Medical Accidents (1973) 121 U. Pa L. Rev. 590, 607, n. 48; Note, The California
Malpractice Controversy (1956-57) 9 Stan. L. Rev. 731, 742.
28 See, e.g., Gibbons, Malpractice Actions without Expert Medical Testimony
(1971) 20 Cleveland State L. Rev. 43, 52.
29 See, e.g., Belli, as noted in Adamson, Medical Malpractice: Misuse of Res
Ipsa Loquitur (1962) 46 Minn. L. Rev. 1043, 1055, n. 35; Louisell, “Lawyers,
Doctors and Medical Malpractice: A Legal Viewpoint” in Institute for Con-
tinuing Legal Education, supra, note 3, 59, 65-6. For similar suggestions
restricted to hospitals, see Marshall, supra, note 10, 11; Ehrenzweig, Com-
pulsory “Hospital Accident” Insurance: A Needed First Step Toward the
Displacement of Liability for “Medical Malpractice” (1964) 31 U. Chi. L. Rev.
279, 284, 285, 288, 289; O’Connell, No-fault Insurance for Injuries arising
24
from Medical Treatment: A Proposal for Elective Coverage
Emory LJ. 21.
(1975)
McGILL LAW JOURNAL
[Vol. 26
The physician is no longer made the subject of an extensive examination
in order to determine whether any recompense will be made… Expert
testimony relating to the mal- or misfeasance of a fellow professional
is not required; neither is penetrating examination and cross-examination
of the defendant. Since ‘fault’ need not be predicated, pursuit of the
etiology of an injury is irrelevant. It follows then that providers may be
more willing to participate in furnishing information upon which to base
compensability decisions in -an atmosphere free from fault-finding.30
There are a number of factors to be considered before removing
medical accidents from the tort law arena. The existing scheme,
in theory anyway, permits an individual to confront a physician
in an open forum with objective judges who will examine his actions
in the light of generally prevailing values of the community. From
a physician’s viewpoint, he will be asked to account for his actions
only where alleged negligence is actually proven. If a no-fault scheme
is adopted, control over physicians’ performance will be left to
the organized profession with the possibility that such immunity
may encourage the development of a feeling of indifference to
medical accidents on the part of doctors.”
On the other hand, many drawbacks to the present system have
been enumerated.3 2 These include the randomness of the rewards
of the present system with some gaining high recoveries but most
others sustaining injuries which go uncompensated because they
either lose their action, fail to pursue their claims, or, through
ignorance or fear of the financial risks, never initiate an action;
the inordinate delay in compensation with most plaintiffs waiting
years after the injury for a final determination of their claim by
the courts; practicing in a “defensive” manner by cautious physicians
afraid of a potential suit and the deleterious effect of such con-
servatism on innovation, the adoption of new medical techniques,
and medical practice and professional services generally; and finally,
the costs involved.3
Few of the objectives of a good compensation scheme enumerated
by Keeton- are met by the existing tort mechanism for dealing
30A Conceptualization of a No-fault Compensation for Medical Injuries
(1973) 7 Law & Soc’y Rev. 329, 362.
31 See Kretzmer, Aims and Functions of the Tort System of Loss Allocation,
unpublished LL.M. thesis, Osgoode Hall Law School (1974), 378. See also
note 28, supra.
32 See Carlson, supra, note 30, 332-40. A summary of physicians’ grievances
may be found in Medical Malpractice Litigation: Some Suggested Improve-
ments and a Possible Alternative (1966) 18 U. Fla L. Rev. 623, 625.
33See Carlson, supra, note 30, 335-6.
3a Supra, note 27, 603:
First, a good system of compensation will be equitable, and it will be
so from each of three different perspectives –
those who
between
1981]
COMMENTS – COMMENTAIRES
with medical accidents. Keeton argues that such a scheme ought
to provide at least a subsistence level of compensation for all victims,
much in the manner of workmen’s compensation schemes and
no-fault car plans, rather than restricting compensation to cases
of proven negligence or fault.
Of particular concern in Canada is the tendency of insurers not
to settle malpractice claims as well as the crushing expenses 5 of
pursuing such a claim with the result that little or no compensation
is available for those suffering minor or moderate injuries. Once
in court, a plaintiff has the double burden of first establishing
causation and then the blameworthy character of such causation.36
Another major drawback is the defensive response of the medical
profession to the increasing number of suits as seen in a growing
conservatism among practicing physicians reluctant to undertake
innovative or high-risk procedures and a tendency to “over-test”
their patients at great expense as a precautionary measure against
the threat of a suit.3 7
Also, the utilization of tort law as a mechanism for exerting social
control over the medical profession and forcing accountability of
negligent physicians can be described as a myth,38 particularly in
receive its benefits -and those who bear the burden of its costs, among
different beneficiaries, and among different cost-bearers.
Second, the system will contribute to the protection, enhancement,
and wise allocation of society’s human and economic resources.
Third, the system will compensate promptly. It will meet economic
burdens as they occur, and it will provide for medical and other rehabil-
itative services as they are needed.
Fourth, the system will be reliable. It will give assurance of financial
responsibility for the payment of compensation determined to be due,
and the determinations of entitlement to benefits and responsibility for
costs will be predictable.
Fifth, the system will distribute losses rather than impose or leave
crushing burdens on individuals.
Sixth, the system will be efficient, minimizing waste and overhead.
Seventh, the system will avoid inducements and, if feasible, provide
affirmative deterrents to antisocial risk conduct.
Eighth, the system will minimize inducements to exaggeration and
fraud and opportunities for profit from such conduct. This is essential
to the integrity and equity of the system and to cost control as well.
85 Kretzmer, supra, note 31, 410, states that: “[elven if a plaintiff who
honestly believes that he has a well-based claim against a doctor is prepared
to weather the storm and pursue his claim, he takes a considerable risk,
for if he loses the case he is invariably faced with a huge bill which
is out of all proportion to the amount he stood to gain.”
36See Ehrenzweig, supra, note 29.
37 See Carlson, supra, note 30, 334, 338.
38See Kretzmer, supra, note 31, 377; Carlson, supra, note 30, 353.
McGILL LAW JOURNAL
[Vol. 26
Canada, because of the near impossibility of pursuing a claim. The
inordinate delay in obtaining compensation through the courts is
a feature of which all trial lawyers are well aware.
Those proposing adoption of a no-fault scheme rely on the
successful precedent of its substitution for the tort liability mech-
anism in the case of automobile accidents.3 9 No-fault schemes for
car crashes are presently in existence in several jurisdictions, in-
cluding Ontario,40 whereby all victims are compensated, to a limited
degree, without regard to fault and without eliminating their right
to pursue the wrongdoer through the courts.4 A comparison of
medical accidents and road accidents might thus prove instructive.
Robert Keeton, one of the original exponents of the application
of no-fault principles to car accidents,42 sets out his view of the
underlying principles of a no-fault system, as
first, the principle of paying benefits without regard to fault; second,
the principle of paying these benefits through private-enterprise insurers;
and third, using these nonfault, private-enterprise payments as the prin-
cipal source of compensation for victims who sustain injuries within the
scope of the insurance contraots. A very significant corollary of the third
principle is that there be a partial or total exemption from liability based
on negligence. 4 3
Contrasting the systems for medical and traffic victims reveals
several interesting factors.4 4 First, malpractice victims who suffer
minor injuries receive little or no compensation,4 because of the
insurer’s propensity not to settle, the financial implications of
pursuing a losing action, and the small award likely to result even
if successful. Also, severe injuries receive large awards, particularly
in the United States. The opposite is usually the case with road
accident victims. Car crash plaintiffs do not confront the problem
of obtaining medical experts. Experts are not usually required on
39 See O’Connell, Expanding No-fault beyond Insurance: Some Proposals
(1973) 59 Va L. Rev. 749; Tunc, Tort Law and Moral Law [1972] C.L.J. 274, 258;
Kroll, The Etiology, Pulse and Prognosis of Medical Malpractice (1974) a
Suffolk L. Rev. 598.
4o See The Insurance Amendment Act, 1971, S.O. 1971, c. 84 (as am.)
ss. 14, 15.
41 See Linden, Canadian Negligence Law (1972), 457.
42 See Keeton & O’Connell, Basic Protection of the Traffic Victim: A
Blueprint for Reforming Automobile Insurance (1965).
4 3Keeton, supra, note 27, 601.
4-1Ibid., 594-6, 599: see also Carlson, supra, note 30, 356, 364; Kretzmer,
supra, note 31, 345, 346. One obvious distinction is the fact that motorists
are both potential plaintiffs and defendants, while patients always fall into
the former category.
45 See Keeton, supra, note 27, 616.
19811
COMMENTS – COMMENTAIRES
the negligence issue and medical reports ordinarily suffice to estab-
lish the extent of the injuries. The deterrence feature also presents
qualitative differences. Presumably, fear of injury provides sufficient
incentive for drivers to conduct themselves in a careful manner.
With the possible exception of psychiatric treatment with certain
categories of dangerous psychotics, this factor is not relevant in
the treatment sphere. Moreover, a motorist accused of negligence
does not face the same professional sanctions and embarrassment
as does a physician-defendant in a malpractice suit.
The most fundamental difference lies in the area of causation.
Traffic injuries rarely raise difficult causation issues, but they tend
to be the* order of the day in malpractice actions. Indeed, sorting
out the cause problem might well prove as difficult and expensive
as sorting out the fault problem. A fundamental aspect of the
causation issue is the determination of whether the victim’s present
condition is a result of the malpractice or a natural deterioration
in his illness. While pre-existing disabilities are sometimes factors
to be reckoned with in automobile claims, they are ever-present
features of medical treatment. Carlson explains that:
Conceptualization of a no-fault system for automobile accident compensa-
tion is relatively simple. The determinant of recovery, once fault-finding
is removed, is merely whether or not the injury was caused by an
accident which is covered by the system. A car crash is a car crash is a
car crash. But, the task of isolating a determinant of recovery for medical
injury compensation is far more complex…46
Unless we envisage some form of social security47 with a criterion
for compensation which ignores the causal connection between the
plaintiff’s condition and the medical treatment received
(which
would no doubt be prohibitively expensive),
the causation issue
remains a major obstacle to the development of a viable no-fault
scheme for medical accidents.
A better analogy has often been drawn between medical accidents
and industrial mishaps. Before workmen’s compensation,48 which
was the first comprehensive no-fault scheme designed to replace
the common law, few victims of industrial accidents ever received
compensation. 9 Now, a victim recovers so long as he is an em-
ployee when injured.50 Carlson argues that if such a compensation
4oSupra, note 30, 356.
47See Keeton, supra, note 27, 597, 601, 604. Such a plan substantially exists
for medical expenses in the province of Ontario: see The Health Insurance
Act, 1972, S.O. 1972, c. 91 (as am.).
48 See The Workmen’s Compensation Act, R.S.O. 1970, c. 505 (as am.).
49 See Keeton, supra, note 27, 592; Carlson, supra, note 30, 355, 356; Kretzmer,
supra, note 31, 418, 419.-
50 R.S.O. 1970, c. 505, s. 3(1).
McGILL LAW JOURNAL
[Vol. 26
scheme were adopted for medical accidents, a determination of
standing to bring a claim would be easier here because:
A patient’s contacts with the health care system are much more discrete
than a worker’s contact with work where all kinds of putatively com-
pensable events can occur. For example, in the employment context
questions as to an employee’s relationship to his employment arise at all
the edges of his normal work tasks –
on the way to work, on the way
home, at the company picnic and so on. In the health care system, since
the number of causative agents are vastly fewer and because the patient
enters and leaves the health care system and the provider’s ministrations
at very definable points, the number of cases in dispute should be propor-
tionately far fewer. After all, an employee can be. injured in any number
of ways and recover as long as he is an employee when injured. A patient,
it is true, must be a patient (an event of much less duration and breadth)
but must also be injured only by agents of the health care system. Thus,
by reverse analogy, if the test for compensation for medical injury were
transposed to the employment context, only injuries sustained by em-
ployees caused by contact with the employer or his agents would be
actionable –
not injuries from other sources like fellow employees,
streetcars, parking lot attendants, baseball bats, and defective machinery.61
Although some experts have discouraged52 a move to no-fault
principles for medical accidents, others have taken pains to devise
model schemes5 3 Carlson suggests that compensation scales be
developed which focus:
51 Supra, note 30, 355. His suggestion would not appear to resolve the prin-
cipal causation problem, i.e., distinguishing injuries due to pre-existing con-
ditions from “in-treatment” injuries.
52 E.g., Keeton, supra, note 27, 616. At the Second Annual Law/Medicine
Seminar in Detroit, Keeton, in a presentation entitled Are No-fault Concepts
Transferable to Medical Accidents?, felt that one of the major obstacles in-
volves defining the recipient. He pointed out that it is relatively simple to
say that anyone injured as a result of an automobile accident will be com-
pensated, but how does one define the “victim of a medical accident”. Does
everyone who leaves a hospital or a doctor’s office worse off than when they
entered receive compensation? What happens to the age-old rule that permits
risk-taking in surgery when the patient is aware that, say, a 5 per cent chance
exists that he will be worse off than before? Is every poor surgical result
to be compensable?
53 Kretzmer, supra, note 31, 415, 416, suggests the development of a two-
stage procedure. First, a determination would be made as to whether the
plaintiff had suffered an untoward result and what compensation was due
to him. Second, an attempt would be made to investigate the cause of the
adverse result which would be used to analyze the risks of various types of
treatment and to implement quality control among individual physicians. See
generally Congress Takes a Look at a No-fault Proposal for Medical Mal-
practice: Some Observations (1975) 9 Akron L. Rev. 116; Waxman, Assembly
Select Committee on Medical Malpractice: Preliminary Report (California
State Assembly, 1974), 59.
19811
COMMENTS – COMMENTAIRES
on the end results of care, judging quality on the basis of the patient’s
condition after an episode of care has concluded (e.g., dead, deteriorated,
improved, recovered, etc.), compared to expected outcome rates for sim-
ilar age groups, disease, etc.54
Presumably, if medical technology is sufficiently sophisticated
so as to be capable of developing a table of “expected outcomes”
given the variables of age, physical condition before treatment,
risks inherent in treatment (although compensation may be ex-
tended to include victims of untoward results which are man-
ifestations of anticipated risks, available treatments, and so on),
and if the causation issue55 is resolved, such a proposal could
represent a viable alternative to the necessity of fault-finding as
a prerequisite to the compensation of persons suffering from the
adverse consequences of medical treatment.56
Gilbert S. Sharpe*
54 Supra, note 30, 358, 359, 360. He structures his scheme as follows:
1. A no-fault system to determine compensation (ignores) the methodology
of care and focuses exclusively on the ‘outcomes’ of care.
2. To the extent possible, a determination of compensability should be
based upon an objective means of evaluating a patient’s ‘outcome’ against
scales or measures of results for the procedure or procedures in question.
3. Compensation (under a no-fault system) therefore is not paid for all
disability states resulting from the provisions of health care services
(theoretically many health care results leave the patient in a more ‘disabled
state’ than before he or she entered the system even if they produce an
optimal recovery); rather, compensation is paid for the degree of deviation
of a patient’s outcome from a range of expected outcomes for like pro-
cedures.
4. Finally, while assessments of compensations are made without re-
ference to the behavior of the providers, once compensation issues have
been resolved, ‘process reviews’ of provider behavior (and other ‘discipli-
nary’ mechanisms) to correct sub-performance ostensibly contributing to
(if not proximately causing) the claim in question can and should be
made.
55 See Keeton, supra, note 27, 614, 615.
56 A compromise scheme derived from Linden’s remarks in Canadian Negli-
gence Law (supra, note 41, 457) would involve offering some immediate com-
pensation to such individuals while retaining their right to bring civil action.
(In this manner, fault and no-fault concepts might complement one another
in what Linden refers to as “the peaceful co-existence plan”.) Thus persons
unable to bring medical malpractice actions for a lack of funds or a lack
of medical experts will be guaranteed a minimum level of compensation.
* Legal Counsel, Ministry of Health, Ontario; Associate Professor, Faculty
of Health Sciences, McMaster University.
