Doctor Tries to Shut Down Med Malpractice Lawsuit by Suing Victim’s Lawyers: Frank v. Legate et. al.

by John McKiggan

The Ontario Court of Appeal has released an interesting decision in the case of Cathy Frank v. Legate et al. Victims of medical malpractice in Canada face a number of barriers in getting access to justice. The claims process can be complicated, time consuming and expense. The odds are stacked against plaintiff’s in medical malpractice claims for a variety of reasons. However, as this case illustrates, a doctor in Ontario tried a novel tactic in attempting to limit medical malpractice claims her.

Dr. Cathy Frank is an obstetrician in Ontario who is the defendant in a number of medical malpractice claims. The doctor adopted the unusual strategy of suing the lawyers who represented the plaintiffs who were suing Dr. Frank. The defendant doctor alleged that statements made by the plaintiff’s law firm in their statement of claim and on their website were defamatory.

Dr. Frank also claimed that she was the victim of malicious prosecution, that the plaintiffs’ lawyers were guilty of champerty and maintenance (a very old legal principle that prohibits plaintiffs from starting litigation with an improper motive), intentional interference with economic relations and intentional infliction of mental distress. Dr. Frank sought punitive damages from the plaintiffs’ lawyers.

The lawyers for the medical malpractice plaintiffs moved to have the doctor’s claim struck out and were successful. The doctor appealed to the Ontario Court of Appeal. The Court of Appeal agreed with the trial Judge’s decision to strike out every single ground of Dr. Frank’s claim. The Ontario court’s decision soundly rejected each of the doctor’s legal arguments.

With respect to the doctor’s claims of defamation. Justice Hourign stated:

“In my view, the motion Judge correctly concluded that the seven impugned statements in the appellant’s statement of claim were clearly incapable of bearing a defamatory meaning.”

Justice Hourign was critical of the doctor’s tactics and stated at paragraph 45 of the decision:

“The appellant effectively seeks to prohibit law firms from describing allegations that form the basis of the potential or ongoing claims. If this type of statement amounted to defamation, no law firm in the Province could ever solicit clients because they could not provide the necessary information for people to determine if they should consult a lawyer about a potential claim. The class action process, for example, would be effectively evisorated if lawyers were restricted in their communications in the manner urged upon us by the appellant.”

I have stated many times that the vast majority of medical malpractice victims don’t even know that they may have a potential claim. One of the reasons I wrote my book Health Scare: The Consumers Guide to Medical Malpractice Claims in Canada, was to educate the public about medical malpractice claims in general and to provide them with information about their legal options.

This decision is a victory for medical malpractice victims. If Dr. Frank had been successful it would have no doubt have had the effect of making it even more difficult for medical malpractice victims to find lawyers willing to assist them with the time consuming, expensive and difficult struggle to receive access to justice and fair compensation.

Legate & Associates is one of the premiere medical malpractice law firms in Ontario and their lawyers are to be commended for their fight against such intimidation tactics.

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