Here is the second story in a series of six on the Canadian Medical Protective Association provided to the Monitor Telegram. 

Membership fees to the Canadian Medical Protective Association (CMPA) are paid by the doctors.  Then the provincial governments reimburse those doctors a hefty percentage of those fees.

Provincial subsidization of CMPA fees in Ontario began in 1987 at the rate of 50%. Five years later, the CMPA fees had more than doubled and have been climbing steadily ever since, as has the percentage of reimbursement from public funds.  The rate of reimbursement varies from province to province.  Ontario currently finances 87.2 percent of the fees, amounting to an estimated $384 million dollars in 2017 alone.

The bountiful contribution that you and I have been making for the last 30-odd years was wrenched from us without a voice and without representation.  This porcine drain on the public purse is not conducted under provincial legislation, it was never debated by our Members of Provincial Parliament.  It was slipped in the back door under a Memorandum of Understanding between the Ministry of Health and the Canadian Medical Association.  This occurred just after the 1986 doctors’ strike that was precipitated by the squabble over extra billing.  The Province prevailed in their attempt to do away with extra billing, and then they quietly made it up to the doctors by subsidizing their CMPA fees.  Can anyone say “prestidigitation”?

The CMPA has been very secretive about the content of this MOU to the extent that they stoutly resisted an effort to obtain a copy of it under the Freedom of Information of Information and Protection of Privacy Act.  The CMPA’s efforts at concealment failed, however, in Ontario Superior Court where the Court ruled that the CMPA should be subject to the access provisions of that statute.

But how did this all start?  Who thought it was a good idea to trample on victims of medical negligence and malpractice?

The CMPA was founded in the early 1900’s at the urging of Dr Robert Henry Wynyard Powell, President of the Canadian Medical Association from 1899 to 1900.

The CMPA’s stated mission was “to protect the professional integrity of physicians and promote safe medical care in Canada”.

Anecdotally, Powell was inspired to form such an organization after a Smith Falls, Ontario physician was wrongfully sued for negligence by the family of a boy whom he had treated.  The physician won the case and two subsequent appeals but was unable to recover his legal costs because the litigants were indigent.  This doctor’s colleagues, one of whom was Powell, took up a collection to assist him.

Incorporation of the CMPA was proposed under Bill 89, a Bill championed by John Leo Chabot, Conservative MP for the City of Ottawa.  Chabot was also a practicing physician in Ottawa.  Of course, he was.

According to Wikipedia, this Bill generated “considerable lively debate in both the House of Commons and Senate of Canada. Members of Parliament received petitions objecting to it. Feelings ran high.”   That is entirely the case, as recorded in the Hansards.  Some of the most strenuous objections were to a clause contained in the original draft which read “to encourage honourable practice and assist in the suppression and prosecution of unauthorized practice”.  Some of the MP’s (and their constituents) had concerns that the CMPA proposed to regulate what was and what was not acceptable health care practices and that, for instance, people would no longer be able to elect homeopathy and osteopathy as their treatment of choice.

As one MP said in debate: “I think this legislation is dangerous. It is legislation against the interests of the mass of the people, and is the creation of a monopolistic corporation… against the rights of the individual in the matter of the selection of his method of cure and treatment in the case of disease.”

No mention is made of “other practices” in the finalized Bill; any overt provision for the suppression of those outside of mainstream medicine was removed.

On the subject of the CMPA’s purpose of defending doctors in the legal arena, lawyer Henry R. Emmerson, Liberal MP for Westmoreland (New Brunswick), said:

“Then the constitution [of the CMPA] provides for the payment of money into the treasury and it also provides machinery whereby an action for malpractice against any member of this association shall be taken hold of by the corporation, and handled anywhere within the Dominion … An action of this kind is brought on behalf of somebody against a physician on the ground that he feels he has been unjustly treated and the whole army of the corporation from one end of the country to the other is brought into action to fight the one poor individual who may claim to have a grievance with respect to the treatment he has received. 

“This may be all right for the members of the medical profession who belong to this association but I hold that it is trifling with this Parliament to have a Bill brought before it with all these provisions hidden within the lines and not exposed to the view of the House or of the country. 

“I do not want to use extravagant language, but I do hold that this is the most iniquitous Bill that has been presented to Parliament in my time”.

Another MP said:

“If the individual realizes that instead of going up against a man whom he believes to be guilty, he has to go up against a strong corporation composed of the medical men of the country, with a fund at their disposal to fight such cases, I think he will feel that an injustice is being done.”

Objections notwithstanding, the Bill was supported by enough MPs (many of whom were, coincidentally, physicians) that it passed.  The CMPA was incorporated by an Act of Parliament in February 1913 and given Royal Assent in May of 1913.

Dr. Powell was the CMPA’s first President, a position he held for 33 years.  In one of his annual reports, Powell predicted that the CMPA would be “a large and important organization”.

Both Henry Emmerson and Robert Powell turn out to have been entirely prophetic.

Stay tuned for the third installment of this series, entitled “The Growing Potential for Malpractice Law Suits,” coming out next week.

Here is the third story in a series of six on the Canadian Medical Protective Association provided to the Monitor Telegram.

CMPA president from 1899 to 1900, Dr. Robert Powell, seems to have taken the view that anyone who seeks compensation from a physician is an extortionist.  He said in one of his annual reports that “we have struck terror into the evil-minded who have sought to besmirch and even blackmail members of our noble profession”.

That viewpoint holds true more than 100 years later.

The incorporation document of the CMPA states that:

4. the objects of the association shall be —


(a) to support, maintain and protect the honour, character and interest of its members;

(b) to encourage honourable practice of the medical profession;

(c) to give advice and assistance to and defend and assist in the defense of members of the association in cases where proceedings of any kind are unjustly brought or threatened against them;

(d) to promote and support all measures likely to improve the practice of medicine.

This seems reasonable enough on the face of it.   After all, in a litigious society where mistakenly or even fraudulently bringing suit is not unheard of, professionals ought to have some protection, and at that time it was the member doctors themselves wholly supporting the organization in the form of membership fees.  Okay, fair enough so far.  Or was it?

The CMPA’s By-law 52 covers such things as admission to membership, the appointment of the executive and officers, council, committees, etc.  It also covers the matter of physician protection.

Para 6.04.02 of the by-law says that

Unless otherwise determined by the Council it shall not grant the assistance of the Association, where it is alleged, or established by evidence, in any action or other proceedings or by other evidence accepted by the Council in its discretion, that the matter complained of arose out of the act, default, negligence, error or mistake:

(a) [of] anyone who was not a member when they were eligible for membership;

(b) when the practitioners ability to perform was impaired by the misuse of alcohol or drugs;

(c) when the practitioner was acting in violation of any statute, law or ordinance or in the commission of any criminal act or act with criminal intent.

It must be supposed that the Council “determines otherwise” fairly regularly because, in addition to providing defense funds for doctors accused of negligence and malpractice, there have been instances where the CMPA has even paid for the legal defense of doctors facing criminal charges.

The potential for doctors to be sued for negligence or malpractice is staggering, not because of overly-litigious patients with fancied ills seeking a quick buck, but because of the alarming number of “preventable adverse events”.

“Adverse events” are defined as “unintended injuries or complications resulting in death, disability or prolonged hospital stay that arise from health care management”.

Some adverse events are not foreseeable, such as the patient with a previously unknown allergy to an antibiotic that was prescribed and administered in good faith and who then suffered a harmful reaction to it.  This circumstance is not foreseeable.

The preventable adverse events are screw-ups.

The Canadian Adverse Events Study published in the May 25, 2004 issue of CMAJ determined that, at that time, there were approximately 185,000 “adverse events” annually in Canadian hospitals and that 37-51% of these were preventable.

One could reasonably conjecture that the adverse events estimate in The Canadian Adverse Events Study are grossly understated, and for two reasons:  (1) the study was conducted on hospital patients and does not include patients being treated in a doctor’s office; and (2) the study specifically excluded psychiatric and obstetric patients.

Volumes have been written about the death and injury caused by psychiatric “treatment”.  The numbers of psychiatric patient deaths and injuries are legion and growing. In fact, recent studies such as that conducted by researchers from the B.C. Centre for Excellence in HIV/AIDS and the University of B.C. establish that the use of benzodiazepine (anti-anxiety drugs) is linked to a higher death rate than that from illegal drugs.  Of psychiatric institutions, Global News reported in 2014 that “factoring for prison population, inmates were 260% more likely to die in the Ontario Regional [psychiatric] Treatment Centre than in Kingston Penitentiary next door” and that “in the vast majority of cases we received, the cause of death was categorized as ‘Other’.”

Suffice it to say that if psychiatric and obstetric patients, as well as patients being treated in a doctor’s office, were included in the study, it is certain that the estimate of 185,000 adverse events would be much higher and that those events which were preventable would certainly exceed the 37-51% range.

Based on those numbers, you’d expect the courts to be clogged with medical malpractice suits, but you’d be wrong.  John McKiggan, a Halifax personal injury lawyer, says in After the Error that every medical error is a potential malpractice case and that these errors could potentially generate over 100,000 lawsuits a year. But that is not the case if you’ll pardon the unintentional pun.

Thinking of suing your doctor for malpractice or negligence?  Good luck even finding a lawyer willing to take on the CMPA.  The Toronto Star reported that a law professor from Queen’s University, Erik Knutsen, could name only seven top lawyers willing to take on a patient’s case.  That’s because, under the contingency fee arrangement, lawyers pay the costs themselves with no way to recover the costs in a losing case and most lawyers just don’t see taking on the CMPA with their effectively unlimited resources as a winning proposition.  Professor Knutsen says that even in cases that are won by the patient, the legal costs can’t be justified by the amount of the award in cases that are not “high value”.  In his words “It’s cheaper to kill someone than to maim them. In our legal system, as long as you are alive, you have a claim for income loss and pain and suffering. If you’re dead, those claims expire.”  Great.  It gets worse.  If the patient loses, he could be required to pay part of the CMPA’s costs.  You know – the costs he’s already paid for via his taxes.

Only 4,524 lawsuits were filed against Canadian doctors in the five-year period 2005 to 2010.  Of those, 3,089 were dismissed or abandoned “because the court dismissed the claim or the victim or the victim’s family quit, ran out of money or died before trial”.  Of the 521 cases that went to trial, only 116 led to a judgment for the patient.

Only 521 cases went to trial over five years when the bare minimum of preventable adverse events is 350,000 over the same period?

The contemporary picture is equally grim for damaged patients.  In 2016, only 839 legal actions against doctors were launched.  Then more than half of those were dismissed, discontinued, or abandoned.  Of the patients whose lawsuits survived long enough to actually get to court, only 9 won their case.

How can this be?  Look to the Canadian Medical Protective Association.  Their cutthroat defense tactics are best described by Paul Harte, a former CMPA lawyer turned whistleblower:

“It is driven by protecting the doctor’s reputation, almost at all costs. The CMPA would spend $100,000 protecting the doctor against a $5,000 claim. The CMPA may keep a low profile, but if you sue a doctor, it’s almost always the Canadian Medical Protective Association running the show. Ninety-five percent of Canadian doctors are members.”

“Just how far will the CMPA go to protect a doctor? The legal strategy is well worn: deny the doctor did anything wrong, even when the negligence seems pretty clear. That’s their strategy. It’s coordinated across the country. It’s intended to make these cases as difficult as possible for plaintiffs. The truth is, few plaintiffs – or their lawyers – survive the CMPA’s suffocating tactics.”

Mr. Harte is right.

The fourth installment of this series, entitled “Down the Rabbit Hole” will be published next week.

Welcome to our fourth article exposing the tyrannical behaviour of the Canadian Medical Protective Association to those hurt by medical care in this country.

In one case in the Superior Court of Justice Ontario, the CMPA funded the protracted defense of a plastic surgeon who operated on the wrong body part. Instead of correcting a little girl’s stenosing tenosynovitis (also called “trigger finger”) in her right pinkie finger, the surgeon performed the operation on her thumb. The physician’s and the hospital’s lawyers’ contention? That the doctor didn’t do anything wrong, and that even if he did, he didn’t do any damage — and never mind that the little girl had to have a second surgery and suffered considerable pain, and never mind the delay in the development of motor skills using her right hand. And anyway, if she did suffer damages it wasn’t the doctor’s fault and furthermore, the damages claimed: “are exaggerated and too remote to be recoverable in law”. The hospital’s position was that if there were any damages, which they deny, they were caused by the little girl’s “failure to mitigate her damages”.

Really?

The judge in this case, who was obviously not in the pay of the CMPA, said:

“I would hope those responsible for the approach, in this case, would re-evaluate whether the strategy used in this case to date accords with the requirements of procedural fairness in the administration of justice in present-day Ontario.”

The judge also noted that:

“In a case where the contemporaneous surgical note candidly and succinctly recognizes that the intended surgery was not performed, to deny liability for four years and then force the plaintiff to incur the costs of preparing for and conducting aborted discoveries and then to incur the costs of this motion would suggest an intentional strategy of delay. Plaintiffs don’t have the war chest and endurance of professional defendants.”

In another Ontario case in which a baby became severely disabled with cerebral palsy when the birth was botched by the attending obstetrician, the CMPA hauled out the big guns. The hospital where this medical disaster took place ponied up $500,000 to the victim “in consideration for a dismissal of the action as against the hospital”. But the obstetrician herself, who admitted liability, was represented by partners in a firm which is, according to the law firm’s website, “one of Canada’s top 10 litigation boutiques”. In addition to what were, no doubt, hefty legal fees to the lawyers, the CMPA ended up paying out $1 million to the victim “as an advance against the total judgment that might ultimately be awarded in this matter”.

This, by the way, is the same obstetrician who fractured a baby’s skull during another badly bungled delivery and who caused major blood loss to yet another patient during a supposedly minor procedure. The College of Physicians and Surgeons of Ontario, in an inspired moment of understatement, later called her “incompetent” but let her keep her license, although on a restricted basis. She is still practicing. We can only suppose that the lawyers are smacking their chops over the prospect of ongoing high-priced repeat business from this doctor.

Another woman sued her doctor because he missed seeing a brain tumor that was evident in an MRI that the patient had. It was there but he just plain old missed it. Three years later, he did finally spot the tumor on a second MRI but by that time, the tumor had become very large. During the course of a six-year battle for compensation, the doctor in that case admitted that he had breached the standard of care and by so doing had caused the patient to suffer what the Court described as “significant damage and injury”, including multiple corrective surgeries and a long list of disabilities ranging from the anticipated complete loss of vision in one eye to complete loss of hearing on one side to painful chewing. Despite the doctor’s admission that he botched the case, once again the CMPA-supplied lawyers attacked the patient, claiming that she had been guilty of contributory negligence, a claim the Judge wasn’t buying. The patient was awarded damages, and the CMPA lawyers promptly filed an appeal.

In another case with a bizarre ending, a Toronto man sued a hospital and some of its staff. He had gone to the hospital’s emergency room where he was assessed and discharged, perhaps with the “take two aspirins and call me in the morning” treatment method. Two days later, he was back. He was then admitted and suffered an acute brainstem infarct (stroke) the next day. This happened in 2009 and it finally wound up in court in 2015. Naturally, a CMPA lawyer was there to represent the doctors. The case was abandoned by the injured patient for lack of funds to hire experts to testify, a malady that the CMPA is immune to.

But as an epilogue to the story, the doctor, in this case, turns out to have been a drug addict whose addiction spanned the period when he turned this patient away from the emergency room. The doctor recently found himself up on 68 charges related to forging prescriptions and trafficking fentanyl. CBC News reports that the doctor had been a long-term addict, starting off with the narcotic Percocets, (an oxycodone and acetaminophen mix) in 2008 and later moving on to Fentanyl. He was convicted in criminal court and got a two-year sentence in a federal penitentiary, significantly less than the eight-year sentence the Crown had asked for.

A dermatologist in Barrie was recently found to have been guilty of “disgraceful, dishonourable or unprofessional conduct” (a College of Physicians and Surgeons euphemism for sexual assault), the best efforts of his CMPA-hired lawyer notwithstanding. But full points to the lawyer for creativity – his defense was that this doctor’s stomach is too big and his penis too small for the sexual contact he was accused and convicted of.

But the CMPA doesn’t restrict their financing of doctors’ defense to mere medical malpractice and negligence. It really doesn’t matter what the doctor has done to get himself into hot water, it doesn’t matter how egregious the offense, and apparently it doesn’t even matter if the doctor is still a doctor. The CMPA is there to shell out the big bucks to take up the cause.

The CMPA funded a former doctor’s successful bid to be removed from the sex offender registry. This ex-physician was convicted of nine counts of sexually and indecently assaulting his patients during breast and vaginal examinations and was sentenced to four years in prison. This convicted sex offender wanted off the registry and the CMPA funded the lawyers to help him do just that.

And then there’s the Toronto physician who, with the help of his CMPA-funded lawyer, got only a six-month suspension of his license from a disciplinary committee for sexually assaulting four female patients. This doctor had already previously pled guilty in criminal court to two counts of assault against two of these four victims. Fortunately, Division Court’s Justice James Ramsay recognized that the penalty to this doctor was “clearly unfit”. Justice Ramsay said that “The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest” and added “The facts of these cases are base. It is depressing to review them.” The court has ordered a new penalty hearing for the doctor. And you can bet the CMPA will be there to finance more lawyers for this sexual predator.

So what happens when one doctor sues another doctor? It’s usually not about medical issues. But never mind that. You and I – via the CMPA — fund the lawyers for those defendant doctors as well.

One case brought before the Court of Queen’s Bench Albert had absolutely nothing to do with the practice of medicine. One psychiatrist sued another psychiatrist for defamation when he (the defendant doctor) allegedly called him (the plaintiff doctor) “a paranoid Sikh”. Two of the defense lawyers, in this case, were from law firms on the CMPA’s roster.

Here’s what the Court had to say about this case:

“The Court heard almost three full weeks of evidence in this matter. What emerged is a picture of a very dysfunctional working environment in which name calling, finger pointing, intransigence and conspiratorial workings have thwarted the best intentions of all of the psychiatrists involved to the point that a certain number of the psychiatrists from both factions have left [the psychiatric facility], and a greater number have been left significantly demoralized. How such a group of obviously intelligent professionals could work themselves into such a state is beyond comprehension.

“Fortunately, it is not for this Court to psychoanalyze the participants in this drama, but simply to determine whether [the plaintiff] has made out his claim of defamation.”

It would be funny if the entertainment hadn’t come at such a high price to the taxpayer.

In an Ontario case of one doctor suing another for damages arising from physical and sexual assault, the defendant doctor’s lawyers were from another of the CMPA’s list of high-priced lawyers. In this particular case, the plaintiff doctor (who paid for her own lawyers) won her case and was awarded $200,000. The defendant doctor continued to practice cardiology.

So, where does the money for all this come from? From you and me, brother, you and me.

The fifth article coming out next week is entitled “Show Them the Money, and Plenty of It.”  Stay tuned.