The Lawyers Weekly
March 31, 1995
Special Section: Focus on Personal Injury
Removing advantage for defendants in medical malpractice cases would increase faith in system
By Simona T. Jellinek
Plaintiffs are faced with many challenges in a medical malpractice action.
For instance, the events leading up to the plaintiff's injury are often exclusively within the defendants' knowledge. All the plaintiff really knows is that something went wrong.
As well, the plaintiff frequently must piece together what happened through the documents prepared by the defendants themselves; the hospital charts and doctors' clinical notes and records.
It is obvious that in a medical malpractice action, defendants have many advantages.
However, there is one advantage -- an arguably unfair advantage -- which the defendants have long enjoyed, namely, the inherent conflict of interest which exists when one solicitor represents two or more defendants.
In a typical medical malpractice action, if more than one doctor is named as a defendant, the same solicitor represents all the defendant doctors.
Likewise, the defendant hospital and the defendant nurses are also all represented by only one solicitor. In other words, if the plaintiff claims against three doctors, five nurses and the hospital, all nine parties are habitually represented by only two solicitors; one for all the doctors and one for the hospital and its employees. To any first year law student, such a situation should reek of a potential conflict of interest.
There are many situations which illustrate the inherent conflict of interest in having only one solicitor represent two or more doctors.
For example, the treating obstetrician may fail to correctly identify a high-risk pregnancy and not perform the required tests that would have disclosed that the baby should be delivered by Caesarean section.
The attending obstetrician may, based on the treating obstetrician's handling of the pregnancy, elect to attempt a forceps delivery. The forceps are used for an excessive amount of time and the attending physician finally decides on a Caesarean section.
The child is severely brain damaged as a result of the precious time which was lost in the extended and futile forceps attempt. It would seem logical that the two doctors should counter-claim against each other.
The attending physician could argue that if it were not for the missed high-risk pregnancy evaluation of the treating doctor, the attending physician would likely not have attempted a forceps delivery at all and delivered by Caesarean section immediately.
Conversely, the treating doctor could argue that the attending physician's attempt at a forceps delivery was for an excessive amount of time and that it was that delay in performing the Caesarean section which caused the damage.
The conflict of interest which the doctors have between themselves is obvious. If each doctor were to be represented by separate counsel, the plaintiffs would be in the proper position to litigate the action.
Separate counsel would mean that each defendant would be doing whatever could be done to exonerate themselves and in the process, discover the truth. However, this is seldom the case in a medical malpractice action; both doctors would be represented by the same solicitor and would mount a singular and unified defence.
The conflict of interest situation described above is somewhat atypical, perhaps as a result of its obvious nature. There are two types of situations which most practitioners are familiar with. The first is where a solicitor acts for a party and then joins the law firm which represented the other party.
The second is where the solicitor acts for a party in some manner, perhaps gives that party legal advice and then is retained by the other party.
Regardless of the type of conflict of interest situation which confronts the courts, judges have dealt harshly with lawyers who place themselves in a conflict of interest situation; their removal as solicitors of record is almost assured.
This harshness is apparent whether there is an actual conflict of interest or whether there is only the appearance of impropriety.
In MacDonald Estate v. Martin (1990) 48 C.P.C. (2d) 113, Mr. Justice John Sopinka considered the legal ethics and the policy considerations which are the foundations of a conflict of interest analysis. He stated that professional standards must be maintained and improved in order to preserve and strengthen the public's confidence.
He further noted that the Rules of Professional Conduct of each province are an important statement of public policy and the enunciation of the standards which the profession places on its members.
Mr. Justice Sopinka concluded that the test which had dominated conflict of interest cases in the past, that of the "probability of mischief," is improper as it does not sufficiently protect the integrity of the legal system.
He went on to state that the test to be applied in circumstances where a solicitor who represented a client joins the law firm representing the other party was whether the reasonably informed person would be satisfied that no use of confidential information would occur.
Mr. Justice Sopinka remarked that the court should infer that confidential information is imparted unless the solicitor is able to satisfy the court that no relevant information was imparted or will be imparted.
He also added that it will be a difficult burden to discharge. It is apparent that the Supreme Court viewed that public confidence in our legal profession was tantamount and that in order to accomplish that goal, solicitors would have to satisfy a very difficult onus.
Lower courts have adopted the analysis and underlying reasoning of the Supreme Court in many different conflict of interest situations.
For instance, in the criminal context, R. v. Le (1993), 78 C.C.C. (3d) 436 is but one of many cases establishing that the same defence lawyer can represent two co-accused if and only if the interests of both co-accused are not opposed but parallel.
Further, the British Columbia Court of Appeal held that since two co-accused could not implicate each other in the criminal act there was no conflict of interests. It was therefore an appropriate situation in which both co-accused could be represented by the same counsel.
Arguably, if courts are not willing to allow the same defence lawyer to represent co-accused unless their interests are parallel, the courts should not allow the same solicitor to represent two or more defendant doctors (or nurses and hospitals) if the interests of those defendants are not parallel. In many medical malpractice actions not only are the interests of the defendant doctors not parallel, they are in direct opposition as the defendants should be counter-claiming against each other.
Our judicial system is based on the adversarial system. The foundation of that system is that each party must look after its own interests in order to arrive at a just and fair determination of the issues.
The litigation process becomes distorted if two or more defendants who have conflicting interests are represented by the same counsel and mount a unified defence.
The tactical advantage is clear. By representing all the defendant doctors, even those who are in a conflict of interest situation, their counsel is able to control the flow of evidence of all the codefendants. The effect is to restrict prejudicially the plaintiffs' ability to properly prepare for the case.
The litigation process never envisioned allowing defendants to essentially 'gang up' on plaintiffs in order to minimize or eliminate exposure to liability by neutralizing the adversarial system.
If defendant doctors, nurses and hospitals, who in fact do not have parallel interests were represented by a separate counsel, rather than by one for the doctors and one for the hospital and its employees, the court would have a better, and arguably fairer chance of discovering the truth.
Furthermore, public confidence in our legal system would be strengthened by re-moving any appearance of impropriety.