Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims

by John McKiggan

You Lose, You Pay!

In Canada, the courts have what is known as a “loser pays” rule. What that means, in most cases, is that the person that loses a lawsuit has to pay some (or all) of the legal fees and expenses of the person that wins the lawsuit.

Discourages Frivolous Lawsuits

The theory behind the “loser pays” rule is that it is supposed to discourage frivolous lawsuits. In other words, if you know you will have to pay the defendant’s legal fees if you lose, you may think twice before filing a lawsuit that doesn’t have merit.

Discourages Legitimate Claims?

Although the idea of the loser pays rule is to discourage frivolous lawsuits, in practice it actually has the effect of discouraging people with legitimate lawsuits from pursuing their claims.

Assume, for example, that you have been seriously injured as a result of medical malpractice. You can’t work, your bills are piling up, and you can’t pay your mortgage. Then your lawyer tells you that if you file a lawsuit and lose, you might have to pay the defendant doctor or hospital tens of thousands of dollars.

What are the chances that you are going to proceed with your lawsuit? Pretty slim, right?

Injured Patients Can’t Take the Risk

I have had dozens of cases over the years where impartial medical experts advised me that my client’s injuries were the result of medical malpractice. But, the injured patient decided not to file a medical malpractice claim because they were afraid that if they lost the lawsuit, they might be ordered to pay legal costs to the doctor that they had accused of medical malpractice.

Not a Level Playing Field

The sad fact is that the C.M.P.A., the organization that defends most doctors in Canada, has almost unlimited financial resources compared to injured patients who have little or no ability to finance the significant costs of medical malpractice litigation.

Being ordered to pay thousands of dollars in legal costs to a successful plaintiff when defending a negligent doctor is a drop in the bucket to the C.M.P.A.

Careful Case Selection Critical

I am extremely selective in the medical malpractice cases that I agree to take on. I will not agree to represent a patient in a medical malpractice claim unless I am convinced that their claim has merit and that the injured patient (or their family) has a reasonable chance of successfully recovering compensation for their injuries.

Severely Injured Patients Have No Choice

Deciding to file a medical malpractice lawsuit is one of the most important, and difficult, decisions that my clients will ever make. But most of my clients who have been catastrophically injured as a result of medical negligence literally have no choice. They face huge medical bills and may never be able to work. Filing a medical malpractice claim is the only hope that they have of ever receiving compensation, and justice, for what happened to them.

If you are looking for a Nova Scotia Medical Malpractice Lawyer you can contact me for a free copy of my book: The Consumers Guide to Medical Malpractice Claims in Canada: Why 98% of potential medical malpractice victims never receive a penny in compensation.

If you believe you or a family member believe you may have been injured as a result of medical malpractice you can contact me through this blog, or call me toll free at 1-888-647-7201.

2 Responses to “Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims”

December 31, 1969 at 6:00 pm, Flightless bird said:

This is very helpful. I’m preparing to have corrective surgery to rectify a complication from 12 years ago that was just discovered.

August 29, 2011 at 11:57 am, attorney said:

The injured patient decided not to file a medical malpractice claim because they were afraid that if they lost the lawsuit, they might be ordered to pay legal costs to the doctor that they had accused of medical malpractice.

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