Aimee Dunn, who lost her baby in March while being treated in the emergency department at Dr. Everett Chalmers Hospital, says she could never afford to sue for medical malpractice.
Dunn consulted the Wagners law firm to pursue legal action against the hospital and doctors involved, but decided that was impossible after being told of the costs and risks.
“I thought there was nothing I could do,” said Dunn, who left the phone call feeling hopeless.
Nick Hooper, a lawyer with Wagners, says the first problem in Dunn’s case is that his daughter had no legal vested rights under Canadian law.
had to be born alive
“The law says you are a legal person and you get legal personality when you are born alive and not before then,” Hooper said.
According to the autopsy report, Dunn’s baby girl died in utero, likely overnight.
A cesarean section was necessary to deliver a stillborn child on the afternoon of March 23.
Dunn’s insists it could have been avoided. She said no one had her heartbeat checked until 12 hours after she was admitted to the emergency room, 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 suffered in utero.
But families cannot press charges on behalf of a deceased person, he said.
In the case of a stillborn child, the parents can only sue for damages they themselves have 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.
Plus, 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 on for years.
Defense fund for “aggressive” doctors
Dunn, a part-time housekeeper, and her partner Mitchell Waite, who works as an auto mechanic, were also warned about the formidable power of the doctors’ defense fund.
Last year, the Canadian Medical Protective Association reported assets of $6.4 billion.
“As of December 31, 2021, we had $6,410 million in assets versus $4,746 million in liabilities, of which $3,997 million represents the accrued provision for pending claims,” the association’s financial report said. .
After paying $276 million in compensation to patients and $223 million in legal defense costs for doctors, the association still had excess revenue of $196 million.
“Physician insurer CMPA is worth billions,” Hooper said. “Defendants take advantage of the fact that, if a trial is necessary, a loss will be felt profoundly differently…between the parties.”
Hooper said it’s a sad reality that “medical malpractice cases are litigated very aggressively.”
“Even when there is care that appears to be substandard, the insurers involved usually push claimants through every hurdle.
“And if they go to trial and they lose, they’ll be saddled with a potentially huge award for costs.”
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 defendant’s disbursements.
“If, for example, two parents were each seeking half of the general cap on damages – each claiming $208,500, for example – they would risk an award of costs of approximately $16,885, plus taxes of approximately $2,532 $, plus defendant’s disbursements, which, in a medical negligence suit of this type, could easily approach or exceed six figures.”
Taxpayers subsidize the doctors’ fund
Canadian taxpayers also contribute to the physician defense fund through agreements negotiated by their provincial governments.
First, doctors are charged fees, depending on the risk associated with their type of medical practice and the litigious nature of their region.
For example, obstetrics physicians in Ontario pay some of the highest premiums — about $50,000 a year. In British Columbia they pay $31,000 and in New Brunswick it is $23,000.
Meanwhile, family physicians who do not work anesthesia, obstetrics, or emergency room shifts pay $3,500 in Ontario, $2,500 in British Columbia, and $2,100 in New Brunswick.
Then the doctors are reimbursed. In New Brunswick, under an agreement with the New Brunswick Medical Society, the province reimburses doctors for any amount over $500.
“The reason why [provinces] have done this, of course, is the tool of competitiveness, retention and attraction for physicians who view this cost as a significant cost to sustaining the practice,” said Anthony Knight, the company’s chief executive.
“And I will say that’s considerably less than what American doctors pay for what would be considered malpractice insurance in that part of the world.”
Last year, 1,957 New Brunswick doctors received reimbursements worth a total of $6.23 million, paid for by the government.
Apologies are not an admission of guilt
Two months after their daughter’s death, Dunn and Waite said they had met with hospital leaders, including department heads – and all of them apologised.
However, the healthcare staff’s apology does not constitute an admission of wrongdoing and is not admissible in civil proceedings under the New Brunswick Health Quality and Patient Safety Act.
And for Dunn, that’s not enough.
“If I was rich, I would still sue them,” she said.