Medical Law: Medical Malpractice and Access to Justice

Written By: Aaesha Angbin Ahmed

Legal Terms

1. Medical malpractice: A legal cause of action that occurs when a healthcare professional’s act or omission deviates from accepted standards of practice and results in patient harm.

2. Duty of Care: A physician’s obligation arising from the doctor-patient relationship, based on trust and recognized by law as a legal duty to act with appropriate skill and loyalty.

3. Standard of Care: The degree of skill, judgment, and care reasonably expected of a prudent physician in similar circumstances.

4. Causation: In medical malpractice, the requirement that the plaintiff demonstrate that the defendant’s breach of the standard of care was a direct cause of the patient’s harm.

5. Costs: Court-ordered payment by one party to another for legal fees and disbursements incurred during litigation.

6. Damages: Monetary compensation awarded by a court to a successful plaintiff for monetary or other losses and injury suffered as a result of the defendant’s wrongful conduct.

7. Plaintiff: The party who initiates a legal action by bringing a claim before a court.

8. Defendant: The party against whom a legal action is brought, who is alleged to be legally responsible for the harm or loss claimed by the plaintiff.

9. Litigation: The process of resolving legal disputes through the court system.

10. Canadian Medical Protective Association (CMPA): A not-for-profit mutual defence organization that provides legal defence, advice, and indemnification to physicians facing medical malpractice claims in Canada.

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Introduction

Medical malpractice law in Canada is often framed as a neutral system designed to balance patient compensation with the protection of professional medical judgment. In practice, however, malpractice litigation operates within a broader institutional context that shapes how claims unfold, how long they last, and how accessible justice ultimately is for plaintiffs. One of the most influential institutional actors in this landscape is the Canadian Medical Protective Association (CMPA), which provides centralized legal defence for the vast majority of Canadian physicians.

Frazer v. Haukioja, a 2008 Ontario Superior Court decision primarily concerned with costs following a successful medical malpractice trial, is one such example of this institutional power at play. While the case is not doctrinally novel, the trial judge’s commentary on the CMPA’s defence strategy offers a rare judicial window into how institutional defence structures influence medical malpractice litigation.

In this article, I will use Frazer v. Haukioja to explore the broader relationship between medical malpractice doctrine and institutional defence power. While malpractice law appears formally stable, cases like this one reveals how institutional actors such as the CMPA shape litigation dynamics and access to justice in ways that are only occasionally made explicitly visible in judicial reasoning.

Background and Context

Medical malpractice claims in Ontario are governed by well-established principles requiring plaintiffs to prove duty of care, breach of the standard of care, causation, and damages. These requirements place a significant evidentiary burden on plaintiffs, often necessitating extensive expert testimony, lengthy trials, and substantial financial resources.

Within this system, the CMPA occupies a distinctive position. Although formally a mutual defence organization rather than an insurer, it functions as a centralized institutional litigant with considerable experience, resources, and strategic continuity. Physicians defended by the CMPA do not litigate as isolated individuals. Rather, their cases are managed within a broader organizational framework designed to defend claims vigorously and consistently.

In Frazer v. Haukioja, the plaintiffs succeeded at trial in a medical malpractice action arising from negligent treatment and follow-up care. The court awarded damages exceeding $1.9 million. Following the trial, the plaintiffs sought nearly $1 million in costs from the defence.

In addressing the costs dispute, Justice Moore explicitly commented on the manner in which the defence was conducted. The court observed that the defendant had pursued a “scorched earth policy,” requiring the plaintiffs to prove virtually every aspect of liability and damages, thereby extending the trial to approximately twenty days. The court further noted that the defendant, supported by institutional resources, could reasonably have anticipated the costs consequences of proceeding in this manner.

Impact and Significance

In Frazer v. Haukioja, the court took judicial notice of the role played by professional defence bodies, including the CMPA, in supporting physicians through malpractice litigation. Particularly, Justice Moore emphasized that organizations with long-standing experience in medical malpractice litigation are well positioned to predict costs exposure and litigation outcomes. The defendant’s failure to meaningfully address these expectations weighed against arguments that the plaintiffs’ costs were excessive or unreasonable.

The significance of Frazer v. Haukioja thus lies less in its contribution to malpractice doctrine than in its recognition of institutional litigation dynamics. Medical malpractice law often presents itself as an even playing field governed by neutral legal standards. In reality, courts are tasked with resolving individual disputes that operate within a system shaped by institutional actors whose presence remains largely invisible in judicial reasoning. Frazer v. Haukioja disrupts this narrative by explicitly acknowledging the asymmetry between individual plaintiffs and institutionally supported defendants.

Practical Implications

For litigants and practitioners, Frazer v. Haukioja underscores the importance of understanding medical malpractice litigation as an institutional process rather than a purely individual dispute. Plaintiffs face not only doctrinal hurdles but also prolonged litigation timelines and significant financial risk when confronting centralized defence organizations.

For courts, the decision illustrates the limited tools available to address structural asymmetry. Cost awards become one of the few mechanisms through which judges can respond to litigation conduct that unnecessarily prolongs proceedings or exacerbates access-to-justice concerns.

Personal Perspective and Conclusion

I initially chose to explore Frazer v. Haukioja for its rare judicial acknowledgment of the institutional realities underlying medical malpractice litigation in Ontario. What I now find most compelling, however, is the way the case simultaneously demonstrates judicial restraint. The court does not seek to reform the medical malpractice system or question the legitimacy of institutional defence despite directly addressing the power imbalance at play. Instead, it continues to situate institutional power within existing procedural frameworks, acknowledging its presence while remaining confined to the resolution of the case at hand.

In this sense, I believe Frazer v. Haukioja invites a broader reflection on our system at large. Particularly, we can investigate how courts, litigants, and policymakers might better account for institutional power within a legal system that continues to frame medical malpractice as a dispute between individuals, even where the imbalance of resources tells a more complex story.

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Medical Law: Medical Malpractice and Access to Justice

Medical Law: Medical Malpractice and Access to Justice Written By: Aaesha Angbin Ahmed Legal Terms 1. Medical malpractice: A legal cause of action that occurs when a healthcare professional’s act or omission deviates from accepted standards of practice and results in patient harm.1 2. Duty of Ca...