Medical malpractice cases are among the most sophisticated and complicated civil claims to pursue. The Canadian Medical Protective Association, CMPA, defends doctors zealously hiring experts from within their ranks at will. On the other hand claimants are often left with a medical community unwilling to provide the medical opinion required to pursue the claim. The CMPA will often make zero offers, seen by claimants as bullying, because dismissals on a technicality are a common occurrence in these malpractice claims. Here is an example.
This medical malpractice against 2 doctors involved a laparoscopic cholecystectomy that apparently went wrong. The doctors had offered to settle with the claimant for zero dollars but agreed to pay her case expenses. She refused the offer, went to court and her claim was dismissed. At issue in this application was whether the claimant should be punished for not accepting the offer by having to pay the doctors expenses and legal fees (McLellan v. S. ,2016 BCSC 1833).
The court found that an offer of only costs can be considered reasonable in some circumstances. In Riley v. Riley, 2010 BCSC 822, Greyell J. noted that an offer by a party to waive or forgo costs if the other party abandons pursuit of its claim constitutes an appropriate offer to settle under Rule 9-1(5) and (6) of the Supreme Court Civil Rules. A party is not required to make a money offer where no such payment is warranted based on a measured assessment of the merits of the claim: Mohamed v. Intransit BC Limited Partnership, 2016 BCSC 321 [Mohamed], at para. 33. ( see para 9 of McLellan)
However, the court found that it would be too harsh to award double costs against the claimant for not accepting this offer and the order was that each party bear its own costs.
Posted By Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.