The story of Jocelyn Blouin, this man who sues the CHU de Quebec and one of its doctors for a medical error, illustrates well the immense fight of those who launch out in such procedures against a doctor. This brings to the fore various solutions that are often discussed, but never deployed.
Mr. Blouin’s lung cancer was not diagnosed until December 2017, whereas a year earlier, an X-ray taken in a completely different context already showed the presence of a worrying mass. This result had never been communicated to him.
“It’s a laughing stock! »Launches Paul Brunet, Chairman and CEO of the Council for the Protection of the Sick.
It is not yesterday that he is calling for a better system to allow victims of medical errors to be heard. Paul Brunet argues that “most of us cannot afford it”.
“It’s a crass injustice,” adds Mr. Brunet.
“That the College of Physicians no longer talk to me about a complaints system as long as it does not provide complainant patients with resources at least as good as the doctor against whom we are complaining,” he insists.
It is difficult to understand why the legislator or the College of Physicians did not intervene sooner.
“During that time, there are ordinary people, like you and me, who suffer (the consequences) of medical errors,” he laments.
“I came to think that the legislator should introduce a regime no fault as in automobile accidents, launches Paul Brunet. So that at least the patient has a minimum of compensation, especially when he has been afflicted for the rest of his life because of a medical error ”.
“It’s utopia! “
This idea of no fault, a no-fault insurance system, has been raised and discussed several times in the past, but it is not unanimous.
“It’s utopia! »Exclaims Me Marc Boulanger, lawyer specializing in medical liability at the firm Tremblay Bois, in Quebec.
Although he admits that a lawsuit against a doctor represents “a battle going up the coast” of which “the quest for information is a difficulty”, Me Boulanger considers that this idea is not realistic.
“We must not be naive. There is no government that will tell you: “we are going to pay you more, it will be lighter and it will be faster”. It won’t happen, ”he said.
A modification of the Civil Code?
The lawyer instead proposes an amendment to the Civil Code in order to reverse the burden of proof “so that it is up to the defense, the hospital, the doctors, the nurses, the technicians to explain themselves”.
“It would be very easy to do. This is the easiest and cheapest way to achieve a convincing result, ”says Boulanger.
Me Serge Dubé, also a lawyer specializing in medical liability, believes that a system of no fault could create “an administrative monster”. “I don’t believe it, the machine would be too heavy,” he said.
The latter also admits that “it is a difficult system” and that such a lawsuit can be expensive, especially in expert fees. The cost of an initial expertise, necessary to verify if there is a valid cause, can vary between $ 1,000 and $ 3,000, according to Me Dubé.
The lawyer specifies, however, that the opinions of several experts may be necessary, so that the invoice for expertise can sometimes climb up to $ 10,000.
The New Zealand model
Even if this idea is not unanimous, it has proven itself elsewhere according to the retired professor at the Faculty of Law of the University of Sherbrooke, Robert Tétrault.
The study of the New Zealand model allowed him to conclude that such a regime is realistic for Quebec. “What form would this regime take in the Quebec context? He asked himself.
“It is indeed possible to conceive of a valid and viable alternative to patients and relatives left behind by the common law civil liability regime”, he concluded in a sketch of a Quebec victim compensation scheme. of therapeutic accidents which he presented in a symposium on the subject in 2005.
Robert Tétrault argues in particular that Quebec can already count on its “experience acquired in the implementation of state compensation regimes”, such as that for road accidents and accidents at work.
Reached by phone, the retired professor affirms that “the current process is very heavy for the victim”.
“There is a huge imbalance. These are vulnerable people who often do not have the energy and the money to counterbalance doctors or health establishments, ”he laments.
“Lawyers who defend doctors are largely paid by the government,” Mr. Tétrault also recalls, considering that the amount that doctors pay in liability insurance is practically reimbursed to them in full by the government.
In a case like that of Jocelyn Blouin, who is suing the doctor and the hospital, the government indirectly finances both the defense of the doctor and the defense of the establishment.
A necessary political will
If the solutions are not unanimous, all agree on the fact that these cases are always complex and that access to justice remains difficult.
The main challenge remains in particular to prove the causal link and the burden of proof which rests on the patients.
“It takes political will,” says Robert Tétrault.
“Do not talk to me in the Caquista government about better access to justice. This is not true as long as we do not resolve that, ”according to Paul Brunet.
Lawyer Marc Boulanger would be surprised “if there is a political will to change that”.
“There is a political discourse on improving access (to justice) and making it cheaper for the public,” he admits, “but nothing has ever really changed. “
“It’s a speech that I’ve heard since I started practicing and I joined the 1979 Bar, I’ve been hearing about it for a long time”, concludes the lawyer.