Were lawyers too ‘vigourous’ in Ontario medical malpractice case?

Medical negligence sign.
Medical negligence sign. Stock photo by Getty Images.

We can call this battle the medical version of David v. Goliath.

In defending lawsuits, are lawyers sometimes overstepping the bounds of “vigorousness?”

Such is the question in the case of Guelph, Ont. resident Felicity Polera, who is suing her former physician for medical malpractice. Polera has been engaged in a six-year long costly battle with the physician’s insurer — the Canadian Medical Protective Association.

Polera’s former physician, Dr. Philip Wade, neglected to inform her about a brain tumour she had for two years! As a result she suffered serious and debilitating injuries, such as loss of hearing and vision on the right side of her face, because the tumour grew unchecked.

Polera’s lawyer, Amani Oakley, is accusing the CMPA’s lawyers of “scorched earth” tactics. Oakley is asking for policy changes in the way the CMPA deals with cases, and has even written to Ontario Health Minister Eric Hoskins to make her case.

Oakley told the Toronto Star: “The CMPA’s well known ‘scorched earth’ tactics should be abolished and in its place should be enacted a requirement to treat injured patients fairly…the CMPA should not be permitted to use the uneven playing field represented by their financial might, to strong-arm patients into accepting inadequate settlement, just to avoid merciless delays.”

The CMPA is known for being cutthroat when it comes to defending their health practitioner clients.

However, that likely also has something to do with the fact that the CMPA has access to vast resources. It has $3.2 billion in funds, which is heavily subsidized by the province through physicians.

Often the people harmed by healthcare practitioners do not have the resources to fight this giant. Especially as the CMPA is known for dragging cases out, so that victims settle for less just to end the “medical nightmare” that such lawsuits become.

In this case, there is no question the physician committed an error. As per CMPA lawyer Anne Spafford: “Early in the litigation, there was an admission that the standard of care had been breached, entitling the patient and her family to compensation.”

Yet, the CMPA still seems to have trouble coming to “a fair and equitable solution.”

In its Medico-legal handbook for physicians, the CMPA states that: “Adopting a vigorous defence is a much more effective and expeditious manner of dealing with clearly unwarranted legal claims, which are often quickly abandoned or concluded by means of a dismissal order.”

The important phrase in this sentence is “unwarranted legal claims,” which Polera’s claim clearly does not fall under. The doctor admitted his error and a judge found negligence in her treatment. Nevertheless, the CMPA refuses to accept the judgement and instead appealed it, miring Polera in more legal red tape.

The question is why are they appealing, and why can they not reach a settlement, when there clearly is no question the doctor was negligent?

CMPA Associate Executive Director Dr. Douglas Bell, declined to comment to the Toronto Star.

Oakley is maintaining the CMPA has to change its tactics and not only vigorously defend and bury the victims of medical malpractice in red tape, but the CMPA should also see the real damage victims of medical malpractice suffer and “do the right thing when patients are injured through medical errors or negligence.”

Oakley has a good point. While lawyers do have to defend cases to the best of their ability, there is a point at which a person’s suffering should be considered.

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