Costs in Medical Malpractice Claims Can be a Barrier to Justice

by John McKiggan

I have discussed before the significant costs involved in pursuing medical malpractice claims in Nova Scotia. The complexity of medical malpractice claims means legal fees and expenses to hire medical experts can potentially bankrupt an unsuccessful plaintiff.

Case in point is a recent decision from Ontario Manary v. Halmo et al.

After a 19 day trial the defendant, Dr. Steven Halmo was found liable to the plaintiff and ordered to pay damages in the amount of $430,000.00.

Loser Pays Expenses

Canada has a “loser pays” system where the loser is usually ordered to pay a contribution towards the winner’s legal costs and disbursements (expenses). This can pose a barrier to legitimate medical malpractice victims. See for example Canada’s “Loser Pays” Rule Not Fair to Medical Malpractice Victims

Defendant Objected to Amount of Costs

In the Manary case the plaintiffs applied to the court looking for contribution to legal fees in the amount of $421,000 and more than $108,000 for disbursements (expenses incurred on the plaintiff’s behalf on preparing for and proceeding with the trial).

The lawyers for Dr. Halmo suggested a more “reasonable” award of costs would be in the range of $170,000.

The court recognized that: “Costs in a complex medical malpractice case can equal or exceed the damages award”.

In considering the defendant’s position regarding costs, the court noted that Dr. Halmo was represented by experienced lawyers provided by the Canadian Medical Protective Association.

The courts stated at paragraph 5:

Counsel and the CMPA would have known that to litigate the plaintiff’s claim would require disbursements of $100,000.00 or more and approximately one and a half to two times that amount for lawyer’s time to get the case ready for trial. Perhaps another $150,000 for lawyer’s time at trial would be an appropriate expectation. A reasonable expectation for an unsuccessful defendant in the present case would, therefore, be to face a partial indemnity costs award of something in the vicinity of $400,000.00 and, if the award were made on a substantial indemnity basis, for well in excess of $500,000.00

[Emphasis added]

Justice Kent ruled that a reasonable and proportional costs award in the amount of $400,000.00 was appropriate.

Why is this important to Medical Malpractice Victims?

This case is important because it clearly illustrates the risks plaintiffs face when undertaking a medical malpractice claim.

Given Canada’s “loser pays” rule, if the situation had been reversed the plaintiff in this case could have expected the doctor’s lawyers to have demanded a contribution to the doctor’s legal costs of over $400,000.00.

The cost of litigating medical malpractice cases in extraordinary. Given the risks involved it is important plaintiffs retain the services of an experienced medical malpractice lawyer as soon as possible to evaluate whether they have reasonable grounds for a claim and what the chances of success are for recovery of significant damages.

Want to Know More?
If you or a loved one have suffered injuries that you think may be due to medical malpractice you can get more information by reading my book Health Scare: The Consumer’s Guide to Medical Malpractice Claims in Canada ( Why 98% of Canadian Medical Malpractice Victims Never Receive a Penny in Compensation).

The book is for sale on (all sale proceeds are donated to charity).

Or you can get a copy for free by contacting me through this blog or by calling toll free in Atlantic Canada 1-877-423-2050 . We will send you a copy, at no charge, anywhere in the Maritimes.

Read Health Scare: The Consumers Guide to Medical Malpractice Claims and learn the answers to these questions:
•What is a medical malpractice case?
•What do I need to prove to win my case?
•What is the Standard of Care and why is it important?
•Top 10 reasons medical malpractice victims never receive compensation.
•How do I find a qualified medical malpractice lawyer?

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