Aimee Dunn, who lost her baby in March while in the care of the emergency department of the Dr. Everett Chalmers Hospital, says she could never afford to sue for medical malpractice.
Dunn consulted the law firm Wagners about bringing a lawsuit against the hospital and the doctors involved, but decided it was impossible after being advised of the costs and risks.
“I figured I wouldn’t be able to do anything,” said Dunn, who left the phone call feeling hopeless.
Nick Hooper, a lawyer with Wagners, says the first issue in Dunn’s case is that her daughter had no vested legal rights under Canadian law.
Had to be born alive
“The law says you are a legal person and you obtain legal personhood when you are born alive and not before that point,” Hooper said.
According to the autopsy report, Dunn’s infant daughter died in utero, likely overnight.
A C-section was required to deliver a stillborn infant in the afternoon of Marh 23.
Dunn’s insists this could have been prevented. She said nobody checked for a heartbeat until 12 hours after she was admitted to the ER 35 weeks pregnant and showing signs of preeclampsia.
Hooper said a fetus that suffers harm and is subsequently born alive has the right to sue for harm sustained in utero.
But families cannot bring claims on behalf of someone who’s deceased, he said.
In the case of a stillborn infant, the parents could only bring legal claims for the harms that they, themselves, had suffered.
In Canada, damages for pain and suffering are capped at approximately $417,000.
“And that amount is reserved for the most catastrophic circumstances imaginable,” Hooper said.
Furthermore, he said, a plaintiff could easily spend half or more of that amount on legal fees and independent medical experts in a case that could drag out for years.
‘Aggressive’ doctors’ defence fund
Dunn, a part-time housekeeper and her partner Mitchell Waite, who works as an auto mechanic, were also cautioned about the formidable power of the doctors’ defence fund.
Last year, the Canadian Medical Protective Association reported $6.4 billion in assets.
“As of December 31, 2021, we held $6,410 million in assets against $4,746 million in liabilities, $3,997 million of which represents the accumulated provision for outstanding claims,” said the association’s financial report.
After paying $276 million in compensation to patients and $223 million in legal defence fees for physicians, the association still had excess revenue of $196 million.
“The physicians’ insurer, the CMPA, is worth billions,” said Hooper. “Defendants leverage the fact that, if trial is required, a loss will be felt profoundly differently … between the parties.”
Hooper said it’s a sad reality that “cases of medical malpractice are litigated very aggressively.”
“Even where there is care that appears to be substandard, the insurers involved generally make the claimants go through every hurdle.
“And if they go to trial and they lose, they will be saddled with a potentially enormous costs award.”
He said the presumption in New Brunswick is that costs would be about $7,375 for the first $100,000 claimed plus three per cent of the amount over $100,000, plus taxes, plus the defendant’s disbursements.
“If, for example, two parents each claimed half of the general damages cap — each claiming $208,500, for instance — they would risk a costs award of approximately $16,885, plus taxes of approximately $2,532, plus the defendant’s disbursements, which, in a medical negligence trial of this kind, could easily approach or exceed six figures.”
Taxpayers subsidize doctors’ fund
Canadian taxpayers also contribute to the doctors’ defence fund through agreements negotiated by their provincial governments.
First, the doctors are levied fees, according to the risk associated with their type of medical practice and the litigiousness of their region.
For example, doctors in obstetrics in Ontario pay some of the highest dues — about $50,000 per year. In B.C. they pay $31,000 and in New Brunswick, it’s $23,000.
Meanwhile, doctors in family medicine who don’t work anesthesia, obstetrics or shifts in the ER pay $3,500 in Ontario, $2,500 in B.C. and $2.100 in New Brunswick.
Then the doctors get paid back. In New Brunswick, under an agreement with the New Brunswick Medical Society, the province reimburses physicians for any amount over $500.
“The reason why [provinces] have done this, of course, is the competitiveness and retention and attraction tool for physicians who see this cost as a significant one for maintaining practice,” said Anthony Knight, the society’s chief executive officer.
“And I will say it’s dramatically less than that which American physicians pay for what would be considered malpractice insurance in that part of the world.”
Last year, 1,957 doctors in New Brunswick received reimbursements worth a total of $6.23 million, paid by the government.
Apology isn’t admission of guilt
Two months after the death of their daughter, Dunn and Waite said, they met with hospital leaders, including department heads — and all of them apologized.
However, an apology by health-care personnel is not an admission of fault and is not admissible in any civil proceeding, under New Brunswick’s Health Quality and Patient Safety Act.
And for Dunn, it’s not enough.
“If I was rich, I would still go after them,” she said.
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