Failed Twice: Patients harmed by Medical Error in Canada

It may come as a surprise, but a person who is injured as a result of a car accident or harmed by another’s negligence on private property stands a much better chance of being compensated for their injuries than a patient who is harmed by medical error or negligence in Canada’s health care system. A customer who bites into a bit of metal into a burger and breaks a tooth is more likely to recover compensation, than a woman who is denied access to a timely caesarean and whose baby dies. The former is very likely to be able to gain access to a lawyer willing to take on their case, but the later, could visit more than half a dozen (or more) lawyers, and each time be somberly told that while her injuries are significant, and the harm caused real, that the amount of time and money to pursue the case exceeds the damages that can be expected to be recovered.

As a result, many patients who have been harmed by medical error, even those with technically valid claims supported by clear evidence and clear case law, never file. Of those who do, more than two thirds have their cases abandoned or dismissed. Of those who go to trial, only 20 percent get a verdict in their favour.

The statistics are sobering – having been failed by the healthcare system, patients are then failed again by the justice system.

There are other avenues (Patient Care Quality Offices and the professional colleges that govern doctors and nurses) that a patient who is harmed by medical error can pursue, however, none of them are equipped to compensate the patient for their injuries. None are equipped to compensate for pain and suffering. None are equipped to compensate for lost work, or loss of capacity to work. None are equipped to compensate for the ongoing costs of care that are incurred as a result of the injury. The only thing that the Patient Care Quality Office and the professional colleges can do is investigate and make recommendations for change, issue an apology and maybe, reprimand the physician or nurses who were involved in the care.

Worse, the lack of accountability for medical errors and responsibility to compensate those injured likely results in lower quality care in the healthcare system.

If the vast majority of those harmed by medical error never report their experiences because they know it is unlikely that they will get any compensation for doing so, and may face retribution and stigma for doing so, how are the sometimes systemic problems that cause the harm in the first place identified and fixed? Where is the incentive to minimize the harm incurred to patients? How is failure to compensate patients who are harmed from medical error contributing to a “patient centred” system?

Making access to compensation easier for patients harmed by medical error could be a boon to encouraging a “patient centred” system, that the public can have confidence in and is bolstered by a culture of safety.

These kinds of administrative justice systems are not unheard of in other countries, including Sweden, New Zealand, and Denmark – all of which have no-fault compensation systems for patients harmed by medical error. All of which are countries that in the most recent Commonwealth Fund report had health systems that out-performed Canada’s health system on a wide variety of measures.

Incentivizing patients to report medical errors by appropriately compensating them for justified claims would mean that the system could get a much better sense of the both the kind of errors made and magnitude of the harms caused by those errors. It would provide the information that is needed to identify systemic problems and work to solve them to mitigate the harm caused. It would bring meaningful accountability – and would stop the insult that is often added to the injuries patient suffer as a result of medical error.

Is it not time to correct the injustice victims of medical error suffer in Canada? Are those victims not just as worthy of being compensated as other victims of negligent harm? Or is “patient centred” merely lip service?