The is the first in a series of six stories on the Canadian Medical Protective Association provided to the Monitor Telegram.

In Canada, the system of publicly-funded universal health care, despite being incomplete in that it does not cover prescription drugs, dental, vision care or other supplementary services, is regarded as being one of the best in the world.  Countless Canadians have received first-rate life-enhancing and life-saving treatment from competent and caring doctors.

And some haven’t.

Just ask Wylie Bystedt whose infant daughter, Morgan, was irreparably harmed by a physician who correctly diagnosed the newborn’s ailment but failed to treat it.  As a result, Morgan is now a spastic quadriplegic with severe neurological, visual and auditory impairment and requires constant specialized care.  Wylie, a single mother struggling to support Morgan and her sister, battled for years to get the financial compensation she so desperately needed.

After a lengthy court battle, Morgan was awarded around $1.8 million for her ongoing care but Morgan was ten years old before she saw a dime, thanks to the efforts of the defendant doctor’s lawyers who were bought and paid for the by Canadian Medical Protective Association, a private organization who uses their multi-billion dollar war chest in the defense of doctors with a no-holds-barred approach.

These lawyers, acting in accordance with what has been called the CMPA’s “scorched earth defense strategy”, denied the doctor did anything wrong and blamed the mother saying that the baby’s ailment was contracted in the womb.  And the CMPA brought in a whole host of rented “experts” to say so.

But the judge didn’t buy it, saying:

“In short, the defendant’s theory of causation is like trying to fit a square peg in a round hole.  Some of the corners fit if positioned correctly but the whole peg just won’t go in.”

The judge also had this to say about what that little baby had to endure:

1. I have no doubt that she suffered considerably from the disease. 
2. She had numerous SEM outbreaks [serious respiratory disease] in the first 14 months of her life which remained untreated. 
3. During the first six months of her life, she experienced the onset and progression of encephalitic episodes [swelling of the brain] that caused profound damage to her central nervous system and destroyed her brain tissue. 
4. She cried inconsolably as if in pain and only fell asleep when exhausted. 
5. She went through adductor surgery to loosen the tendons and muscles of her hips and was on painkillers for some time after the surgery. 
6. She had further surgery for the insertion of a G-tube so she could obtain the necessary nutrition to live. 
7. The evidence supports a finding that Morgan has suffered considerably in her short life.

Wylie Bystedt asked the Court for the sum of $286,000 for baby Morgan’s pain and suffering.  The CMPA lawyers had the unspeakable effrontery to counter with the sum of $50,000 because the baby was too damaged to appreciate more than that.  They said:

Morgan’s ability to cognitively appreciate her position in relation to others or to appreciate any money spent to improve her condition is unfortunately negligible at best, thereby diminishing her claim under this head of damage.

 But, wait.  There’s more.

Morgan’s mother also asked for costs for the ongoing care that the child is certainly going to need.  The CMPA lawyers opined that Morgan’s life expectancy was 20-23 years and that the award should be based on that and not the 45 years that the plaintiff put forth.  In other words, “she’s not going to live that long anyway so we shouldn’t have to pay as much”.

 And you thought the story of the man murdering his parents and then pleading for leniency because he’s an orphan was just an old joke.

When all was said and done, the Judge awarded baby Morgan $1.8 million in damages and cost of past and future care.

Wylie’s lawyer, Thomas Harding, describes the CMPA defense strategy like this:  “If my dog bit you, it wasn’t my dog … you weren’t bitten … it wasn’t you … the dog was drunk … you goaded the dog … you bit the dog”.

Interestingly, one of the CMPA lawyers, in that case, says that he is now “acting exclusively in plaintiffs’ medical negligence and infant injury litigation cases”.  Perhaps he lost his stomach for the egregious defense tactics of the CMPA.

And guess what – Morgan’s mother paid for the CMPA lawyers.  So did I.  So did you.

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.