On September 15, 2021, Paul moderated a panel of medical malpractice lawyers at Will Davidson LLP’s annual continuing legal education webinar, “Ready, Set, Litigate.” The panel topic was “Screening New Cases: When To Dive In and When To Run Away.” The discussion focused on how experienced plaintiff counsel decide which medical malpractice cases to take, how the COVID-19 pandemic had reshaped that calculus, and what to recommend patients when civil litigation is not the right path.
The intake decision matters more in medical malpractice than in almost any other area of plaintiff-side civil litigation. The cost structure, the time horizon, and the resource asymmetry against a Canadian Medical Protective Association-defended defendant mean that a poorly-screened case can consume working capital and lawyer time for years before it produces a result, while a properly-screened case is the foundation of a viable plaintiff practice.
Why screening matters
Plaintiff firms in this area fund their files. Records cost money to obtain. Expert consultations cost money. Pleadings, discoveries, mediation, expert reports, motions, and trial preparation all carry direct costs that are typically not recoverable from the defendant before judgment, and that are absorbed by the firm in the meantime.
Medical malpractice files routinely run four to seven years from claim to judgment. Over that window, a firm carrying a single substantial file is foregoing the ability to take other work that might have used the same capital. The opportunity cost of a marginal case is the meritorious case that the firm could not take instead.
Across from the plaintiff is a defendant who, in the vast majority of medical malpractice files in Ontario, is funded by the Canadian Medical Protective Association. The CMPA retains experienced counsel and experienced experts, and it does so repeatedly with the same teams across cases. The structural asymmetry is significant, and it makes the screening decision unforgiving. A weak case will be tested at every step.
The substantive screening criteria
The questions experienced counsel ask at intake are practical and roughly sequential.
Standard of care. Is there a credible argument that the defendant’s conduct fell below the standard of a reasonable practitioner in the same specialty in similar circumstances? This is rarely answerable from the patient’s story alone. The records and an expert consultation are usually required before a confident assessment can be made.
Causation. Even where the standard of care is plainly breached, the harder question is often whether the breach caused the injury. A patient with a serious underlying condition, who would have had a difficult outcome regardless, may not have a viable claim even when something clearly went wrong in their care. Causation in medical malpractice is the most common reason that otherwise sympathetic cases do not proceed.
Damages. Catastrophic injury cases, fatalities, and serious permanent impairment cases can support the cost of full investigation and trial. Cases with limited economic loss and modest general damages (capped under the Andrews trilogy framework) often cannot, regardless of how clearly negligent the conduct was. The screening question is not whether the patient was wronged; it is whether the damages, after deduction of costs, leave the patient meaningfully better off than they were before.
Limitation period. The basic limitation period under the Limitations Act, 2002, SO 2002, c 24, Sched B, is two years from the date the claim was discovered or ought reasonably to have been discovered. The discoverability analysis under s 5 can be complex in medical malpractice cases, but the screening question is binary: is the claim alive, or has the limitation period run.
Defendant identity and collectability. Most physicians in Ontario are insured through the CMPA, which removes most collectability concerns. Hospitals, nursing homes, and individual practitioners outside the CMPA framework require a separate analysis. A claim against an uninsured defendant with no assets is, as a practical matter, a claim that cannot be funded.
The COVID-19 context
In September 2021, when the panel was held, the case screening environment had been substantially altered by the pandemic. Hospitals and clinics had been operating under unprecedented strain for eighteen months. Standard-of-care arguments arose in contexts that had not existed before (treatment decisions made under resource-scarcity conditions, deferred elective procedures, telehealth assessments substituted for in-person examinations). Court backlogs meant longer carrying times for any case that proceeded. The CMPA continued to defend physicians on the same terms, but the pool of potential cases included a meaningful share of pandemic-related fact patterns that had no clear analogue in pre-pandemic practice.
The panel addressed how that environment shifted the screening calculus, including the funding considerations specific to investigating new matters under conditions of uncertain court timelines.
When civil litigation is not the right path
Not every medical wrong has an economical civil remedy. The screening decision sometimes ends in a recommendation that the patient pursue a different avenue.
The College of Physicians and Surgeons of Ontario accepts complaints from patients about a physician’s conduct or care. The complaint process is free, does not require expert evidence in advance, and can produce outcomes ranging from no action to remedial measures to formal discipline. A CPSO complaint is not a substitute for civil compensation, but where the patient’s primary concern is accountability rather than financial recovery, it can serve a different and legitimate purpose.
Hospitals operate their own complaints processes. The Patient Ombudsman in Ontario receives complaints about public hospitals, long-term care homes, and home and community care services. The Health Professions Appeal and Review Board reviews certain regulatory decisions. Each of these has its own scope, timelines, and limitations.
An honest conversation about these alternatives, when the civil case will not be economical, is part of competent intake practice. A patient who came in expecting a lawsuit and leaves with a clear understanding of why one is not viable, and a roadmap of the other options that may be, has been served properly.
Practical observations
Screening cases at intake is not glamorous work. It is also not the kind of work that produces visible results. A case the firm declined to take, and that the patient resolved through some other channel or did not pursue at all, is a case that nobody outside the firm will hear about.
The work matters anyway. A plaintiff practice is built on the cases that were taken because they were strong and on the cases that were declined because they were not. Both decisions are part of the same craft. The panel framing, “when to dive in and when to run away,” captures something that experienced counsel in this area know in their bones: the discipline to walk away from cases that should not be taken is what makes it possible to do justice to the cases that should.ind is the chance to compare notes on each stage of that arc with colleagues who handle the same files.
