The Canadian Medical Protective Association, commonly called the CMPA, is a defence organization that works on behalf of doctors across Canada. Among other things, the CMPA generally defends physicians when they are sued for negligence in Court or when their regulator, the College, is investigating the doctor. Almost all doctors in Canada are members of the CMPA – in 2021, the CMPA had 105,638 Canadian physician members.[1]
Some types of medical malpractice are not defended by the CMPA. The CMPA only represents physicians, so other health care providers, like nurses or optometrists, do not have access to the CMPA’s defence.
Examples of situations where the CMPA would tend to be defending the case include:
- Delayed diagnosis;
- Negligent errors made during a surgery;
- Ordering the wrong medication.
Examples of cases where the CMPA is not likely to be involved are:
- Birth injury where a midwife delivered the baby;
- The wrong medication was dispensed;
- Nurses did not follow orders or report complaints to a doctor.
Additionally, the CMPA defends physicians who are alleged to have done something wrong in the course of their medical care, only. It does not defend doctors for wrongdoing unrelated to medical care, and even when the case is related to medical care, the CMPA has a set of principles it follows before it will commit to defending a physician in a specific case, such as when there are allegations of sexual assault.
How does the CMPA work?
It is very important to understand that the CMPA is a “mutual medical defence organization.” This means it is not an insurance company, and does not have any of the same rules that apply to insurers. While founded in 1901, the CMPA legally exists by a special Act of Parliament, the Act of Incorporation for The Canadian Medical Protective Association, which was passed in 1913.[2] 110 years later, although much about health care has changed, the nature of the CMPA, and its mission, has not.
It is also important to understand the CMPA’s priorities. While many of the CMPA’s publications tout the organization’s commitment to compensating injured patients in a timely manner, a closer look indicates it is not so straightforward. The CMPA pays “timely and appropriate compensation” to patients “proven to have been injured as a result of negligent medical care (fault in Québec) as determined during the medico-legal process.[3]”
From the CMPA’s perspective, the physician they are defending is only negligent where their own defence experts agree they were.[4] This means that a plaintiff can have 3 different experts all critical of a doctor for the same reason, but if the CMPA can find one expert who says the Defendant met the standard of care, they will force the case to trial. This may be the case even if other experts the defence consulted agree their was a breach of the standard or care.
This is a feature, not a bug, of how the CMPA works. As stated in “A Physician’s Foresight, A Profession’s Pride”, a special history publication for the CMPA’s 100th anniversary, “Most bad medical outcomes do not result from negligence or lack of skill. In these cases the CMPA has always taken the position that the doctor's professional integrity should and will receive a vigorous defence.”[5]
Everyone deserves a fair defence. However, legitimate concerns have been raised about the impact of the CMPA on medical malpractice litigation in Canada, due to their clear commitment to physicians’ reputational interest. Questions have been raised such as whether injured victims whose cases have merit are being discouraged from seeking compensation they need because the process is too costly and too lengthy.
According to the CMPA’s data, in 2021, out of 958 total resolved cases, 354 resulted in a settlement or judgment for the plaintiff.[6] That means just over 63% of cases went in the CMPA’s favour – not statistics that inspire injured people to start expensive litigation within the two year limitation period. The problem becomes clearer when looking at trial outcomes: the CMPA won 73% of the time at trial, which is lower than their win rate in the preceding 4 years.[7]
Can Plaintiffs win against the CMPA?
There are many reasons it is difficult to litigate against the CMPA. Because they aren’t an insurance company, they do not have any legal obligation to try to settle claims, as automobile insurers in Ontario do. The CMPA also does not have an incentive to worry about its bottom line on any given case, because they cannot generate profit and don’t have shareholders to pay out to. Physicians pay fees to the CMPA, a portion of which are reimbursed by the provincial government[8], and the CMPA can therefore count on having its fund replenished each year. Between these factors and the CMPA’s avowed interest in protecting doctors’ reputations, it is no surprise that the resources they deploy over the course of a lawsuit can be overwhelming. The CMPA can spend nearly endless money on top-notch expert physicians who, in many cases, are happy to defend a fellow doctor; hire excellent lawyers who are capable at drawing out litigation over many years, driving the costs up further; and rarely have a disincentive to go to trial. At the worst, they may lose and file an Appeal, but the individual doctor will not generally have to risk their own assets if they lose.
While it is very difficult to successfully sue a doctor because of the strength and resources of the CMPA, it is certainly possible. There are cases where, with the right experts and strong legal analysis, the CMPA will settle the case earlier on in proceedings. Sometimes, it takes a mediation followed by some further negotiation to reach a settlement. Other times, a settlement simply won’t be entertained, and the lawsuit will rise or fall with how the expert witnesses are received at trial.
Bogoroch & Associates LLP has extensive experience starting, settling, and successfully trying difficult medical malpractice cases. These lawsuits often require long, tough, fights, but we have the tenacity to pursue meritorious cases until resolution. When medical malpractice has occurred and there are strong supportive experts, Bogoroch & Associates will fight all the way to trial, and even beyond.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer-rating publications.
If you or your loved one believes that you are a victim of medical malpractice or negligence, reach out to a medical malpractice lawyer to understand if you too have a claim. Please contact us at Bogoroch & Associates LLP for a free consultation.
[1] https://www.cmpa-acpm.ca/en/about/annual-report/2021-cmpa-annual-report#section-number
[2] https://www.cmpa-acpm.ca/en/about/who-we-are/act-of-incorporation-and-by-law
[3] https://www.cmpa-acpm.ca/en/about/what-we-do/empowering-better-healthcare#section2
[4] https://www.cmpa-acpm.ca/en/about/what-we-do/medico-legal-advice-and-assistance
[5] A Physician’s Foresight, A Profession’s Pride: A History of the Canadian Medical Protective Association 1901-2001
[6] https://www.cmpa-acpm.ca/en/about/annual-report/2021-cmpa-annual-report#section-number
[7] https://www.cmpa-acpm.ca/static-assets/pdf/about/annual-report/2021/21-annual-report-by-the-numbers-5yr-trend-e.pdf
[8] https://www.health.gov.on.ca/en/pro/programs/ohip/mlp/schedule_2023.aspx
