We are excited to share with you the insights of five prominent members of the bar with extensive experience in medical malpractice litigation, both from the perspective of plaintiffs’ and defence counsel.
Whether you are currently working on medical malpractice files, considering a career in this interesting and complex area of litigation, or are just curious about what senior members of the bar who practice in this field have to say about their work, read on.
Thank you, Richard Bogoroch, Daryl Cruz, Tom Curry, Hilik Elmaleh, and Richard Halpern for sharing your perspectives and wisdom. We hope your insights will inspire current and future advocates who are interested in working at the intersection of law and medicine.
These interviews were conducted and complied by Jonathan Farine, who is passionate about health law and has a special interest in medical malpractice. Thank you, Jonathan.
Q: What do you most enjoy about medical malpractice work?
Richard Bogoroch – I love the opportunity it affords me to help people who have suffered from medical malpractice and to provide them access to justice that otherwise may not have been available. I have always viewed the pursuit of justice as a spur to action. I have also been greatly influenced by Dr. Martin Luther King Jr, whose famous quote “the arc of the moral universe is long, but it bends toward justice” inspires me to continue to take on very difficult, complex, and tremendously challenging cases.
Darryl Cruz – I really like that I get to work on subjects outside of law in a very deep dive kind of way. In medical malpractice you must take a detailed approach to understanding the medical literature and apply it to events that are not normal everyday experiences. The other element is you get to deal with great people. Doctors are generally very professional, cordial, knowledge, and great clients to work with.
Tom Curry – The intersection of law and medicine is a great field because of the interesting legal issues, policy issues, and human drama. That combination is what attracted me to the area.
Hilik Elmaleh – It is incredibly rewarding to advocate for a family affected by malpractice, and to know that the child or the individual will be taken care of for the rest of his or her life. Many clients will keep in touch and write to us about their child’s progress, and it’s very satisfying to know that we’ve helped make that difference.
Richard Halpern – Medical malpractice litigation is challenging but rewarding. Your client often has a lifetime of disability, which makes it that much more meaningful to advocate on their behalf.
If you could change anything in the field of medical malpractice what would you change?
Richard Bogoroch – Firstly, I think that the Courts must revisit the “loss of chance” doctrine, particularly in delayed diagnosis cases. If a patient should have been treated earlier and would have had a significant chance of recovery, there should be compensation for that loss of a chance. The law currently states that loss of chance is non-compensable in tort cases, which is a barrier to recovery when there is a proven negligent act. When there is a proven negligent act, and expert evidence establishes the difference in outcome is more than speculative, I see no reason that plaintiffs should be absolutely barred from pursuing these cases, even if their damages may be approached differently. For this reason, I hope that the Ontario Court of Appeal revisits Cottrelle v. Gerrard.[1]
Secondly, there appears to be difficulty among the bench and the bar in applying the SCC decision in Clements[2]. On the one hand, Clements affirmed the material contribution test, but on the other, to date, it has not been applied. I would prefer a more robust interpretation of causation, otherwise, access to justice in medical negligence cases will be markedly attenuated.
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