The Michigan Model: Medical Malpractice and Patient …
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There is NO malpractice crisis | Quad Cities Injury Lawyers
Major differences between the countries emerge when we examine the rules governing compensation. These rules determine the amounts awarded for given types of accidents. Punitive damages, sometimes a substantial component of damages in U.S. awards, are rarely awarded by Canadian courts. Awards for pain and suffering are subject to a relatively modest judicial cap, set at $100,000 in 1978 by the Supreme Court of Canada and indexed to inflation, so that it now stands at about $200,000. An analysis of 107 large Canadian claims in which the element of pain and suffering was likely to be especially important found that damages for other than economic factors amounted to only 15 percent of the total awards (). In contrast, pain and suffering are a major component of personal-injury awards in the United States. Priest found that noneconomic damages constitute 47 percent of the total amount awarded for personal injury in the United States. One explanation for these high awards for pain and suffering is that some juries, knowing that fees for the plaintiff's lawyer will consume one third of the award, add an amount to cover these fees. For these reasons alone, Canadian awards should be considerably smaller than American ones. In Canada, when a lump sum is awarded to compensate for anticipated future losses, the real interest rate is used for discounting. Because this rate is well below the nominal interest rate, it may increase the size of the award, and the award is increased to account for taxes that must be paid on the interest income accruing from investing the award — substantially increasing the size of awards for serious long-term disability. Furthermore, three decisions by the Supreme Court of Canada in 1978 require courts to specify four categories of damages: special damages, prospective loss of earnings or profits, cost of future care, and noneconomic loss. This requirement is thought to have increased the efforts devoted to calculating damages and thereby to have increased the size of the average award. , Such changes occur nationwide in Canada; the Supreme Court of Canada is the ultimate adjudicator of all legal issues, including tort issues, thus imposing uniform legal doctrine across the country. By contrast, the U.S. Supreme Court does not hear appeals on matters of state law, which include most malpractice issues, thus encouraging the evolution of diverse doctrines in the 50 states.
The Only Medical Malpractice “Crisis” is the One …
Other institutional differences generally serve to reduce the incentive to bring a malpractice lawsuit in Canada, as compared with the United States. Since the early 1970s, each province and territory has operated a public health insurance plan that provides access to and covers all necessary medical and hospital services. The overwhelming majority of physicians are self-employed but are reimbursed by the provincial health insurance plan on a fee-for-service basis. Universal health insurance eliminates the financial burden of health care costs arising from an iatrogenic injury. Although such costs are recoverable in malpractice suits (and paid to the health care system) and may constitute one quarter of the damages awarded in U.S. tort suits, they provide no incentive for the victims to sue in Canada. Social security programs are generally more generous and comprehensive in Canada than in the United States, so there are fewer incentives to use the tort system as a form of social insurance. In Canada, malpractice cases are typically decided by a judge alone, without a jury, and it is believed that Canadian judges are more conservative with the insurance company's money than U.S. juries, regardless of the legal merits of the case. Indeed, our review of 107 large claims revealed no case in which the award seemed generous in relation to the damage described or in which the liability appeared unsupported by the facts.
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