Challenges in Medical Negligence


In 2004, Dr. Ross Baker reported on the rate of adverse events occurring at acute care hospitals across Canada1. The study defined such an event as an unintended injury or complication, caused by the healthcare management of the patient rather than by the patient’s underlying disease, and one that led to death, disability at the time of discharge, or prolonged hospital stay. In the fiscal year 2000, 7.5% of patients admitted to acute care hospitals in Canada experienced one or more adverse events. Of these occurrences, 36.9% were highly preventable; 5.2% resulted in permanent disability; and 15.9% resulted in death. Extrapolating from this data, it is estimated that between 141,250 and 232,250 of the 2.5 million similar admissions to acute care hospitals in Canada were associated with an adverse event in the year 2000. Sobering statistics aside, the reality is that the data extrapolation was conservative: The actual occurrence of adverse events is much higher.

As far as medical malpractice lawsuits go, then, hospital-based claims are among the most common. According to some estimates, upwards of 80% of all medical errors occur within a hospital setting.2 To properly advance these claims, most plaintiffs have no choice but to separately identify the Hospital as a party defendant in addition to each of the individual physicians involved in their care. This is done because the hospital, while also subject to direct liability at an institutional level, is vicariously responsible only for those considered employees. Due in large part to the ongoing reliance of a 1980 decision from the Ontario Court of Appeal (Yepremian v Scarborough General Hospital), physicians are legally considered independent contractors—not employees.3 The practical implication is that the Hospital and its employees are separately represented from the physicians, while the legal implication is that plaintiffs must prove individual fault on the part of each of the named party defendants.

Almost all hospitals in Canada are public and receive a vast majority of their funding from provincial governments. Mostly, the services provided at public hospitals are publicly insured. Many hospitals belong to the Health Insurance Reciprocal of Canada (‘HIROC’) and most of their liability coverage costs are covered by provincial government funds. On the other hand, physicians are remunerated for the services they provide to patients on a ‘fee for service’ basis. Physicians’ fees are paid pursuant to the universal health insurance system—in other words, through public funding—and these fees are also meant to cover overhead costs. Such overhead costs include liability coverage. To this end, almost 95% of Canada’s physicians belong to the Canadian Medical Protective Association (‘CMPA’)—a physicians’ mutual defence organization. In recognizing that an increase in CMPA fees cannot be mitigated by an increase of costs for insured services, provincial governments and provincial medical associations have long negotiated such that CMPA fees paid by physicians are substantially reimbursed by way of public contribution. In other words, the CMPA, like HIROC, is also largely a publicly funded entity. While there is a paucity of data surrounding HIROC, the CMPA hosts a vast financial reserve. In 2017, according to its Annual Report, the CMPA investment portfolio was $4.48 billion dollars.4

In light of the above, it would be fair to characterise the current medical liability system as bifurcated: The Hospital and its employees on one side, the physicians on another. If we accept that any legal system ought to be designed in a way that is reflective of, and responsive to, the legal problems that it is meant to solve, we must ask the question: Does the bifurcated system of medical liability work? The long answer is, as always, it’s complicated. The short answer is, no.


Historically, physicians occupied the ‘top’ of the hierarchical chain of medical care—they brought their patients into a hospital setting where equipment was essentially housed, and were generally thought to be independently responsible for the full medical and clinical judgment and care exercised. Since at least the early 1990s, this model of care has drastically changed. Not only have we seen a shift and preference towards collaborative and team-based medicine, there has been an explicit move towards viewing the hospital as more involved in actual clinical and patient care—from a simple institution to a complex organization. There is now significant and compelling patient safety literature, and anecdotal evidence, to support the notion that most hospital-based errors are related to, and caused by, systemic and team-based failures.

To better understand this concept, experts refer to the ‘sharp end’ of the system as the point at which healthcare services are delivered to a patient, and the ‘blunt end’ of the system as the organizational, management, and regulatory factors that make up the care. From this perspective, health practitioners interact with patients in the process of delivering care, but they do so within a particular institutional environment that has been shaped by regulators, administrators, policy-makers, technology suppliers, and other members of the larger healthcare team. As an example, a neurosurgeon working with a larger healthcare team must also rely on the hospital’s policies, procedures, and practices as they may relate to the exchange of patient communication, diagnostic or laboratory testing, sanitation protocols, and even the human resources scheduling of vital residents or interns.

Failures at the ‘sharp end,’ including issues with clinical judgment, are often reflective of failure at the ‘blunt end’. Accordingly, and as outlined in the Canadian Root Cause Analysis Framework, “to understand why an adverse event occurs in the ‘sharp end’, it is necessary to examine and analyze the contributing factors in the ‘blunt end.’”5 A root cause analysis assumes that investigations into critical incidents and adverse events will identify their contributing factors. In this regard, a root cause analysis must involve:

  1. An understanding of how humans interact with their environment;
  2. Identification of potential problems related to processes and systems;
  3. Analysis of underlying cause and effect systems through a series of ‘why’ questions;
  4. Identification of risks and their potential contributions to the event;
  5. Development of actions aimed at improving processes and systems.

To better understand the validity of a ‘systems’ perspective with respect to critical incidents in health care, one need only look to the aviation industry. Take, for example, the occurrence of a plane malfunction. To accurately understand the incident, and to protect air and passenger safety, any incident analysis would necessarily include evaluation of the structural components of the airplane and its manufacturing, the logistics and administration of the aircraft and the flight, the navigation and control elements, the communication system, the human factors involved, and evaluation of numerous other components. There would be analysis of the elements of the system as well as the interactions of those elements. This is done because even if the root cause of an incident is human error, there is recognition that human error arises from and is shaped by the different components of the system in which people operate. Due in large part to this kind of holistic systems-approach to incident analysis, the aviation industry is a highly reliable one with an overall decreasing number of adverse events, despite the inherent high risks involved.

In 2008, Michelle Mello and David Studdert examined the prevalence of system factors in medical injuries across the United States. They found that 66% of medical injuries attributable to error involved both individual and systemic factors, and that in most cases individual failures were a “necessary but not sufficient condition for injurious errors to occur.”6 While there does not appear to be a published study in the Canadian context, there is no basis to believe that the results would be much different. Arguably, in fact, the explicit shift towards provincial control over hospitals and the vast public interest and investment in patient care may suggest that the ‘systems’ aspect is even greater in Canada. From this perspective, it is not only a logical problem that our medical liability system is solely predicated on findings of individual fault—it is a disaster for access to justice. Determining the problems that led to injury requires looking at the system holistically; yet the legal framework allows only one eye to be open at a time. Injured victims cannot withstand further barriers: In 2017, only 22.5% of actions at trial resulted in judgment for the plaintiff.7


There are several consequences of a medical liability system that does not reflect, or respond to, the way that harm actually occurs: A potentially obscured fact-finding process, a compromised focus on patient safety, and an overall disincentive to pursuing claims where both the hospital (and its staff) and the physicians are potential defendants.

We believe that patients in Canada’s hospitals and doctors’ offices are entitled to safe, high-quality healthcare. Though medical malpractice law is a tough business, it is important to advance the common potential of the medical and legal systems to improve patient safety and to ensure that injured patients have access to justice. The ultimate goal is not to increase the number of medical malpractice lawsuits, but to instead work together to address and eliminate the risk factors that give rise to medical errors in the first place.

One possible solution to help achieve this goal would be a move to an enterprise-model of liability. The premise of enterprise liability is that an entire organization may be held responsible for obligations and/or offences of its constituent units. While the system retains the fault requirement of the negligence based medical malpractice system — in other words, it would still require plaintiffs to prove that the negligence occurred — it limits liability to the health care institution as a whole. Not only does this type of liability system appreciably simplify the legal process, but it can be used to achieve the overarching goal of deterrence, given that the health care institutions have the control, information, and authority necessary to make and shape decisions with respect to improvements in health care and patient safety. Most importantly, it actually reflects the way that a vast majority of hospital-based injuries occur.

While contemplating changes to the entire liability model requires systemic change, more immediate strategies can and should also be implemented. These may include, for example, a commitment to fully investigating and advancing a cogent theory of liability from the outset of a case; engaging with policy and advocacy initiatives that facilitate the transfer of knowledge between the legal system and the medical system; and collaborating with other lawyers to identify and address both best practices and common challenges.

Until the occurrence of adverse events is either reduced or eliminated, there will be an ongoing need for dedicated advocates to advance the interests of injured patients. The Medical Malpractice Group at Neinstein Personal Injury Lawyers, led by Duncan Embury, will remain steadfast in their commitment to serving these interests while also working towards the ultimate goal of improved patient safety.

  1. Ross Baker et al “The Canadian Adverse Events Study: the incidence of adverse events among hospital patients in Canada” (2004) 170:11 CMAJ 1678.
  2. Marilyn M. Rosenthal & Kathleen M. Sutcliffe, eds., Medical Error: What Do We Know? What Do We Do? (San Francisco: John Wiley and Sons, Inc., 2002) at x, citing Committee on Quality of Health Care in America, Institute of Medicine, To Err is Human: Building a Safer Health System (Washington: National Academy Press, 2000).
  3. 1980 CarswellOnt 612 (CA); rev’g 1978 CarswellOnt 573 (OHC) [Yepremian].
  4. The Canadian Medical Protective Association, Annual Report (2017), online: <>.
  5. Canadian Root Cause Analysis Framework (2006), Canadian Patient Safety Institute at 6.
  6. “Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries” (2008) 96:1 Georgetown L J 599.
  7. The Canadian Medical Protective Association, Annual Report (2017), online: <>.