Professional Negligence
The term “Professional negligence disputes“ covers a wide spectrum of civil claims.
A far from comprehensive list is:
- claims against physicians, surgeons, and medical sub specialists
- claims against general dentists, specialists and dental sub specialists
- claims against chiropractors
- claims against architects/engineers
- claims against lawyers.
Though these claims have many commonalities, they also present distinctive differences.
Lawsuits against professionals inherently embrace a challenge to the professional’s reputation, skills and qualifications. This genre of claims usually give rise to the challenged professional viewing the litigation process as a frontal assault on the professional‘s integrity. This perception persists and remains an important theme at the mediation. The mediator must appreciate that just as the plaintiff is emotionally invested in the case, so too is the professional who is sued. The targeted professional almost always views this not as about money but about reputation – which is much more important than money.
The mediator must appreciate that many professional negligence claims require different approaches at mediation. If it is obvious that the defendant views the lawsuit as an existential threat, a gentle or more nuanced approach may be required by the mediator.
The mediator must be flexible and exquisitely attuned to what is going on – because the “mood“ at the mediation can shift like the weather. The fact of unpredictable shifts must be anticipated, although the specifics can never be predicted.
There are important differences between these professional negligence claims. Some are as follows:
- In a lawsuit against a physician, the physician almost never attends the mediation. In addition, because there is no insurance, there is no insurance representative at the mediation. The doctor is represented by counsel appointed by the Canadian Medical Protective Association (CMPA) a non-insurer. The CMPA lawyers attend but a representative of CMPA does not. This CMPA representative is available but only to the CMPA’s lawyers by telephone. So those instructions come over the phone and are not communicated directly by the decision maker to the mediator.
- In a lawsuit against a chiropractor, there is insurance. However, the insurer isn’t at the mediation, and rarely is the defendant chiropractor. Representatives of the Canadian Chiropractic Protective Association (CCPA) who are themselves chiropractors, attend as the decision makers at mediation.
- In a lawsuit against a lawyer, there is insurance. The lawyer is represented by insurance adjusters – themselves lawyers – employed by the lawyer’s insurance company, Lawpro. So the Lawpro representative attends the mediation with the litigation lawyer appointed by Lawpro. The decision-maker is the Lawpro representative who instructs the litigation lawyer defending the allegedly negligent lawyer.
This overview is not intended to be comprehensive. It demonstrates some of the subtleties and many layers which underpin these types of claims; and these intricacies have the potential to complicate the arc of the mediation.
Gomberg Mediation Solutions Inc.
70 Bond Street, Suite 200
Toronto, ON M5B 1X3
Canada
OFFICE: 416.865.5323
FAX: 416.365.7702
Send us an email
Articles on mediation, litigation and justice
Anatomy of a mediation in a child’s wrongful death case
Based on mediating hundreds of wrongful death cases and acting as counsel in others, Frank analyses how a trial will always exacerbate an already horrible situation. It is imperative in these high…