A VIEW OF THE FUTURE: EMERGING DEVELOPMENTS IN HEALTH CARE LIABILITY

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Description: Another key principle in this area, one which is emphasized in many of the recent cases, is the importance of avoiding the danger of "hindsight." As was stated by Madam Justice L'Heureux-Dub, when judging a doctor's actions "courts should be careful not to rely upon the perfect vision afforded by hindsight."9 It is essential that a defendant-physician be judged by the standards of the profession applicable at the date of the treatment, rather than those applicable at the date of the trial.10 Although this principle has been reaffirmed by the Supreme Court of Canada in a number of modern cases,11 it has a well established pedigree dating back many years. Its importance is perhaps best captured in Lord Denning's famous dictum in 1954 in Roe v. Minster of Health, that "we must not look at the 1947 accident with 1954 spectacles."12In the years following the Pritchard Report, the feeling of "crisis" has diminished. One of the main reasons for this is that there has been a significant and continuing reduction in the number of lawsuits brought against Canadian doctors. Specifically, in the last ten years there has been a 35% decrease in the total number of legal actions brought against CMPA members, and almost a 50% reduction in the number of actions per 1,000 members.24 CMPA annual fees have also fallen sharply in recent years, adding to the diminishing sense of "crisis." For example, CMPA fees for obstetricians in Ontario have gone from $86,244 in 2005 to $50,508 in 2008, and cardiac surgeons in Ontario have seen a decrease in fees from $21,564 to $9,768 during the same period.25 It is perhaps not surprising that the CMPA, one of most prominent voices in favour of change at the time of the Prichard Review, now considers the present system to be a "world-class model."26There are some emerging developments which have the potential to reignite a feeling of "crisis" (including financial crisis) and which may lead to a renewed interest in replacing the current system with one
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