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Statement of Principles Applicable to Damages Experts in Medical Malpractice Litigation

It has become clear that the increasing cost of medical malpractice litigation in recent years is attributable, at least in part, to the ever greater amount of time and money devoted to obtaining and leading expert evidence with respect to damages issues. Furthermore, the clients and lawyers involved in a consistent basis in medical malpractice litigation have come to realise that in each area of damages determination, there are several Canadian experts who, by reason of their experience, expertise, and integrity, are retained on behalf of both plaintiffs and defendants, and whose opinions are respected equally by both sides. Discussions among clients and lawyers representing both plaintiffs and defendants in medical malpractice litigation have led to a recognition that the experts generally acceptable to both sides exhibit certain characteristics which give credibility to their opinions and efficiency to their retainers. These characteristics can be summarised in the following Statement of Principles:

  • in assessing damages, priority must be given to ensuring that the plaintiffs' reasonable needs will be met;
  • the ability of the medical community in particular and of society in general to provide funding to compensate plaintiffs in medical malpractice litigation is inevitably finite, with the result that Panel experts must, in complying with principle (a), bear in mind factors of cost efficiency;
  • experts must devote sufficient time and expense to each retainer to ensure that their reports are as accurate and complete as reasonably possible, but those experts are also expected to bear in mind the fact that the entire purpose of this exercise is to reduce the cost of medical malpractice litigation;
  • experts should devote a high level of priority to medical malpractice damages retainers and should provide reports pursuant to those retainers as promptly as reasonably possible;
  • subject to the above-noted principles, an expert who provides services at relatively low cost will be preferred over one who does not.
  • By way of summary, counsel retaining damages experts in medical malpractice litigation expect that those experts will provide competent, complete and intellectually honest reports in a timely and cost-effective manner.

    Terms and Confirmation of Engagement
    I confirm on behalf of _____ to provide an expert opinion and, if requested, an expert report, with respect to [field of expertise] in the above-noted manner.

    I further confirm that this retainer is expressly subject to your agreement to abide by the Statement of Principles above. You should assume that your failure to comply fully and fairly with these Principles will result in the termination of this retainer.

    Finally, I confirm that you will bill your services with respect to this retainer on the basis of _____ . Please sign one copy of this letter in the space indicated below and return it to _____ to confirm your acceptance of the terms of this retainer.

    Name of Counsel

    I hereby accept this retainer and agree to comply with the terms of the retainer as described above.

    Name of Expert