The Medical Malpractice Landscape in Ontario: Facts, Trends and Analysis of Trials and Appeals

This study presents comprehensive analyzed data about medical malpractice trials and appeals in the Ontario civil court system over a 24-year period, from 1992 to 2016. The study looks at the trends in this population of cases with the hopes that there is, for medical malpractice litigants, some predictive value in at least knowing the facts. The study examined not only success rates for parties in these cases but also other trends such as which fundamental legal issues were pursued, how certain issues fared on appeal, the impact of juries, and legal cost trends. The study concludes by offering some insight into what trends occurred in those cases and how that information might inform future medical malpractice litigation decisions. Highlights of the data include: Medical malpractice cases comprise a tiny proportion of civil matters dealt with by Ontario courts – about 0.06% of all civil proceedings and about 0.6% of matters dealt with by the Court of Appeal for Ontario. Patients in Ontario were successful in about 30% of medical malpractice judge-alone trials during the study period, from 1992 to 2016. The Court of Appeal for Ontario heard roughly 5 medical malpractice appeals a year. These cases were most commonly non-jury cases involving a surgical or obstetrics injury to the patient. Issues about standard of care or causation predominated as the issue about which a party appealed the trial result. Patients were successful in less than one-quarter of appeals about informed consent negligence. Physician appellants were successful in having the Court of Appeal allow an appeal in 37% of physician-launched appeals. Patient appellants were successful in having the Court allow 12% of patient-launched appeals. Only 7 patient-launched appeals in the twenty-four year study period were allowed by the Court, and 5 of those appeals ordered a new trial. Physician respondents were successful in keeping a result at trial at least 88% of the time in the study period, while patient respondents were successful at least 63% of the time. More than half of the appeals were allowed due to a factual error at trial. When an appeal was allowed due to a legal error in patient-launched appeals, the issue typically involved a fundamental legal error like applying doctrine backwards. In healthcare provider-launched appeals, the legal error was more circumscribed and academic. Delay in diagnosis and treatment was a common argument in more than one-third of the physician-launched allowed appeals. The Court of Appeal did not hear many appeals from jury trials during the time period (14%). Patients who were unsuccessful on appeal were directly ordered to pay costs only one-third of the time. In 45% of the appeals brought by patients, the Court ordered costs “if demanded.” The median cost award was $25,000. Leave to Appeal to the Supreme Court of Canada was sought in one-quarter of the total population of medical malpractice appeals. Unsuccessful patients were almost twice as likely (40%) to seek Leave to Appeal than healthcare providers (26%) when they lost on appeal. Yet if a healthcare provider lost on appeal, the healthcare provider sought leave 86% of the time. Over the twenty-four year study period, the Supreme Court of Canada granted Leave to Appeal in only one case.

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