Law and Disorder: Navigating medicolegal Issues (Part 1)

On October 17, 2013, 27-year-old Philisha Sutherland was found at home by her parents—lethargic, weak, and slurring her speech. EMS transported her to Sault Area Hospital, where she was assessed by the attending emergency physician, Dr. Booth.

Dr. Booth performed a neurological assessment. She checked motor function, coordination, and speech—finding no ataxia, no facial droop, and no speech disturbance. However, she did not assess the patient’s gait. Investigations included bloodwork and urinalysis. No CT scan was ordered.

Over multiple reassessments, Philisha’s symptoms appeared to improve. The working diagnosis was intoxication, and she was discharged home.

Tragically, the next day, Philisha suffered a fatal cerebellar stroke.

Her family filed a civil action against Dr. Booth, alleging that she failed to meet the standard of care—that a more thorough assessment could have identified the stroke and prevented her death. (Sutherland et al. V. Booth, 2024)

On June 23, 2011, Kamal Baines, a 33-year-old man, was involved in a high-speed motorcycle crash while intoxicated. EMS noted a femur deformity and an absent pedal pulse. He was transported to Ajax Pickering Hospital, where he was assessed by Dr. Mohamed Abounaja.

At 11:40 PM, Dr. Abounaja conducted a primary survey and FAST exam. IV fluids and uncrossmatched blood were ordered. By 12:04 AM—within 20 minutes—he had contacted CritiCall and spoke with the trauma team leader (TTL) at St. Michael’s Hospital. The TTL requested CT imaging prior to accepting the transfer.

Over the next several hours, Dr. Abounaja made multiple calls to CritiCall, consulted orthopedics locally, and escalated the case. It wasn’t until 4:49 AM—after speaking with CritiCall’s medical director—that the transfer was accepted. By then, it was too late. Due to prolonged ischemia, an above-the-knee amputation was performed at 8:35 AM.

Mr. Baines filed a lawsuit against Dr. Abounaja, arguing that he fell below the standard of care by failing to insist on urgent transfer to a trauma centre.

(Baines v Abounaja, 2023; Cahill, 2023)

Two cases. Two lawsuits.

But only one was decided in favor of the plaintiff.

Which one do you think it was?

Let’s be honest—this isn’t the topic most of us would choose for fun. You’d probably rather hear about how to nail an awake intubation, or how to isolate a lung in hemoptysis.

But here’s the thing: this matters.

Emergency physicians face higher legal risk than any other non-surgical specialty in Canada. Between 2018 and 2022, 9.7% of emergency physicians were named in a medico-legal case each year. Over that five-year period, 24.3% were named in at least one case. (CMPA, 2023)

And being named in a lawsuit?

It’s not just an administrative nuisance.

It can:

• Shake your confidence—you may start second-guessing your clinical judgment.
• Change your practice—you might begin over-investigating, ordering unnecessary tests… sometimes even to the detriment of patient care.
• Burn you out—these cases drag on for years, and the stress lingers long after.

For all these reasons, many of us try not to think about medico-legal risk.

But here’s the reality: when a claim is brought forward, it’s usually because a patient has suffered harm.

That’s the opportunity—because if we can identify patterns in medico-legal cases, we can take clear, actionable steps to:

👉 Reduce our legal exposure

👉 Improve patient safety

In the first part of this series we will focus on addressing and approaching college complaints, and in part two we will focus on the landscape of medicolegal risk in Emergency Medicine.

For many of us, medico-legal actions feel like a black box. We know they exist. We know they can be serious. But what actually happens when a complaint or lawsuit is filed?

Let’s break that down.

We’ll focus on the two major types of medico-legal actions:

1. College Complaints
2. Civil Legal Actions (Lawsuits)

There’s also a third category—hospital or departmental complaints. While these are important for quality assurance and patient relations, they’re generally less significant from a medico-legal standpoint and highly variable across institutions. For that reason, we won’t cover them here.

1. College Complaints

In Ontario, complaints are filed with the CPSO (College of Physicians and Surgeons of Ontario), though each province has its own regulatory body.

Sometimes you’ll see it coming—maybe a patient expresses dissatisfaction, or something unexpected occurs. But more often, these complaints come long after the fact.

Step-by-Step: What Happens in a CPSO Complaint?

1. The Patient Files a Complaint
   • Some complaints start as a phone call to the CPSO. A nurse will triage the concern.
   • ➡️ Up to 60% of phone complaints are resolved at this stage—before any formal process begins.
   • The CPSO actually encourages this route.
   • However, if a patient (or family) submits a formal written complaint, the case must proceed through the full process. (CPSO – Complaints and Concerns, n.d.)

2. The physician is notified
   • You’ll receive an email notification from the CPSO.

3. Investigation Begins
   • A CPSO investigator gathers information from the complainant about the issue.

4. The Physician Responds
   • This step is unique to college complaints.
   • With CMPA support, you submit a written response:
   • Summarize the case (based on memory and documentation).
   • Address specific concerns raised by the patient.
   • 🔁 Alternative Dispute Resolution (ADR) may be an option here.
   • If the patient is satisfied with your response, the case can be resolved without further action. (CPSO – Alternative Dispute Resolution, n.d.)
     
5. The Case Goes to the ICRC
   • The Inquiries, Complaints, and Reports Committee (ICRC)—usually 3–4 physicians and 1 public member—reviews the case.
   • If the case involves complex medical issues, they may bring in an independent physician assessor to answer:
     1. Did the physician meet the standard of care?
     2. Did they show a lack of knowledge, skill, or judgment?
     3. Do they pose a risk of harm to patients?

6. College Makes a Decision
   • Possible outcomes:
     • ✅ No further action – best outcome
     • ✅ Practice advice
     • ✅ Practice restrictions via “undertaking”
     • ✅ Mandatory courses or remediation
     • ✅ Verbal caution
     • 🚨 Worst case: Referral to the Discipline Tribunal (~1% of cases)

CPSO Complaint data

Let’s put this into perspective. According to CPSO (2024):

• 58% of cases were resolved through ADR before reaching the committee
• 31% resulted in no further action after ICRC review
• Only 0.8% were referred to the Discipline Tribunal

(CPSO – Annual Report, 2024.)

🟢 Takeaway: The vast majority of college complaints do not result in serious consequences.

Civic Litigation

Now let’s talk about civil actions—what most people mean when they say, “I got sued.” These are about compensation. The patient (or family) believes they were harmed by inadequate care and is seeking damages.

What Most Don’t Realize: Most potential lawsuits never make it to court.

When a patient feels wronged, they’ll consult a lawyer. That lawyer then screens the case. Only about 5–10% of cases make it past this stage.

Why so few?

Because lawyers ask:

• Can we prove negligence?
• Can we prove harm?
• Are the damages high enough to justify this?

A civil lawsuit is expensive. It can last years and cost over $100,000 in expert and legal fees. That’s why only cases with potentially high-value damages move forward—often hundreds of thousands of dollars or more.

Damages Are Based On:

• Degree of impairment (e.g., above-knee vs. finger amputation)
• Loss of productivity (e.g., high earners may yield larger claims)
• Age of the patient (younger = more years of productivity lost)

If the case appears strong, lawyers will consult a medical expert—usually a physician from the same specialty and practice setting—to determine:

• Was there clear negligence?
• Is causation plausible?

If a Lawsuit Is Filed, Here’s What Happens (Medico-Legal Handbook for Physicians in Canada, 2024.):

1. Notification
   • You receive a lawyer’s letter or notice of action
   • → Step 1: Call the CMPA (more below)

2. Pleedings 
   • Statement of claim: Allegations by the plaintiff
   • Statement of defense: Your response

3. Litigation Proceedings Begin (typically 4–6 years)
   • Discovery: Evidence gathering
   • Expert witnesses: Additional opinions
   • Examinations for discovery: Under-oath questioning
   • Mediation/pre-trial: Attempts to settle

4. Settlement
   • CMPA only settles when care is indefensible. They do not settle just to cut losses.

5. Trial and Appeals
   • Very few cases make it to trial.
   • Most are dismissed, abandoned, or settled.

The CMPA: Your First Call

• The Canadian Medical Protective Association (CMPA) is not insurance. It’s a mutual defense organization.
• If you’re notified of a complaint or lawsuit:
• Step 1: Submit a simple online form
  • You’ll be contacted in 2–3 days
  • You’ll receive two key supports:
    • A physician advisor – guides you through the case
    • A lawyer – only if needed (minority of cases), drafts responses and communicates with legal parties

CMPA Key Facts:

• They rarely settle unless the case is clearly indefensible
• If a case is settled, you don’t pay—CMPA covers damages
• Your dues don’t go up if you lose
• Tail coverage is automatic—if you were a member when the case occurred, you’re covered for life

🎧 Follow this link to a recent podcast with Dr. Todd Watkins, Associate CEO of the CMPA for more information (Ep #84 – What Happens If I Get Sued as a Physician in Canada?, 2025)

Legal Assessmnet – What courts look for

To win a civil lawsuit, the plaintiff must prove:

1. Negligence (Breach of standard of care)

• • Did the physician clearly fall below what a reasonable peer would do?

2. Causation (Direct harm from negligence)

• • Did the negligence more likely than not cause the outcome?

🟢 Importantly: You are judged in context—what would a reasonable physician have done in your setting, with your resources, in that moment?

The law does not demand perfection. The standard of care is set by your peers, not by hindsight.

Key Trends in Medico-Legal Cases (CMPA – 2023 Annual Report, 2024)

• 📊 According to the CMPA:
  • College complaints are the most common issue:
• > 5,000 complaints in 2023
  • Hospital complaints: ~2,000
  • Civil actions served: Only 674
• For civil actions:
  • ~⅓ are dismissed or abandoned
  • ~⅓ are settled before trial
  • Only a tiny fraction go to trial
  • In 2023, out of 991 resolved legal actions, only 13 trials resulted in judgment for the plaintiff

Key Takeaways

• ✅ Two major medico-legal actions: college complaints and civil lawsuits
  • College complaints focus on future risk to patients
  • Civil lawsuits focus on financial damages

• ✅ First step in any case? Call the CMPA
  • They guide your legal response and provide defense

• ✅ Most CPSO complaints end early
  • Your written response is often enough
  • Very few reach the discipline tribunal

• ✅ Civil lawsuits require BOTH negligence and causation
  • High bar for plaintiffs to clear

• ✅ Most civil actions don’t make it far
  • About ⅓ are settled
  • Most that go to trial are decided in favor of the physician

Stay tuned – next week we’re going to post part 2 – looking at the landscape of medicolegal risk in Emergency Medicine.