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.

Following is the fifth installment of our series on the Canadian Medical Protection Association. 

The last article hit a nerve.  A lawyer posted the following comment: “I am a plaintiff medical malpractice lawyer from a small town (Cambridge, Ont.) who acts for only patients as against the behemoth Law firms which the CMPA hires. I completely agree with your assessment of how the Defense acts. I am also a member of The Holland group, a think tank for medical malpractice cases, and have been since it’s inception and only now after over a hundred meetings, have we come up with ”best practices”. The members of the Group are both from the Defense side and the Plaintiff side. These “best practices” are a typed up version of what I have been doing for 35 years. The CMPA lawyers on instructions from the CMPA (I assume) may talk the talk in the group but on the street, it is the same old shit of delay delay and scorched earth. Earlier resolution of obvious cases of merit would save all money and compensate the Plaintiffs so they can try and lead a better life earlier than is now and probably forever a broken system of compensation. Good article right on the nuts. PMM”

The latest CMPA financial statement figures from 2016 show membership revenues of $566.3 million.  You paid most of that.  When you add in another $203.8 million from investment income, that makes the total revenue $770.1 million for that year alone.  That’s just the revenue; that doesn’t count their assets in land and buildings.  Not bad for a non-profit corporation.  I might start one myself if the province will subsidize it and let me set my own rates, as noted in the 2016 CMPA financial statement:

“The 2016 Membership fees in Quebec were arrived at as per the Memorandum of Understanding between the Association, the Fédération des médecins spécialistes du Québec, the Fédération des médecins omnipraticiens du Québec, and the Government of Quebec. The 2016 membership fees in Ontario and the Rest of Canada were determined by the Association.”

At the CMPA’s inception in 1901, the flat fee for membership was $2.50 annually.  By 1976, it was $200 a year. Provincial subsidization in Ontario began at the rate of 50% in 1978 and by 1981 the fees had increased to $350.  In 1984, the CMPA began charging differential fees as determined by specialty and 1986 saw another significant jump to an average fee of $1,238.  Five years later, it had doubled.  By the year 2000, the average fee was $3,929.  And it gets worse.  This year, the unweighted average fee is triple that of 2000 at $11,338.  The general rate of inflation for the period 1979 through 2017 was 235%.  Shocking?  Not compared to the CMPA rate increase of 6,156.5% for the same period.  Had the CMPA fees kept pace with inflation, the 2017 fee would have been $670.  But then, why limit your increases if you can enjoy a feeding frenzy at the public trough?

Let’s put the fee impact into perspective, shall we?  The 2016 Canadian Institute for Health Information reports that a doctor’s earnings vary based on doctors’ specialties.  Family physicians make about $271,000 while medical specialists make about $338,000 and surgical specialists earn $446,000.  So the average gross pay for a doctor sits at $339,000.  That makes the current average CMPA fee 3.3% of the average gross pay.

Why do we have to subsidize this?  Hands up — how many of you mere mortals make as much money as a doctor?  What percentage of your income goes to mandatory insurance?  How many of you get subsidized from the province for the insurance that you are required to get for your car or your house?  How many businesses are subsidized for their liability insurance premiums?  How many employers are getting subsidized for the crippling WSIB fees?  That’s what I thought.

CMPA does pay out claims in cases so blatant and so egregious that there’s just no hope of even their ruthless lawyers winning the case. But they don’t pay out as much in claims as they do on fees for lawyers and expert witnesses, which is entirely consistent with their strategy of seeking to crush anyone bringing suit against a doctor.  They even brag about it.

The last article in the series “Your Doctor Probably Isn’t Insured” will be published next Tuesday.

This is the last in our series of six stories about the Canadian Medical Protection Society.

It is a common misconception that the CMPA provides doctors with insurance.  They don’t.  The CMPA has repeatedly insisted that it is not an insurance provider, and at least one court agrees.

A New Brunswick woman sued her psychiatrist who over drugged and sexually abused her and then threatened her with the nightmare of involuntary incarceration in a psychiatric facility if she told anyone what he was doing.  Was she harmed?  Of course, she was.  She was driven to a suicide attempt which caused her serious physical damage and which very nearly cost the poor woman her life.  She won her case and was awarded roughly $600,000 that she was then unable to recover from the psychiatrist because the sniveling coward fled the country leaving no assets behind.  The woman looked to the CMPA for these damages, arguing that the CMPA was this doctor’s insurer.  The CMPA asserted that it is not an insurer and that furthermore, it is entirely within their discretion as to whether any claims are paid.  The CMPA’s position was upheld in The Court of Queen’s Bench of New Brunswick and the victim of this predatory psychiatrist remains unable to collect the damages awarded by the Court.

Now here is an interesting fact.  In Ontario, the College of Physicians and Surgeons carefully words one of the requirements for registration, saying the doctor “must hold professional liability protection”.  Most people would think that it means that the doctor has to be insured.  The College names membership in the CMPA as fulfilling that requirement even though the CMPA does not provide insurance, as they’ve said over and over.   Paying compensation to injured patients is entirely at the CMPA’s discretion.  Furthermore, unlike real insurance companies, the CMPA does not raise the fee for doctors who have been found at fault (which is just as well since you and I are footing the bill anyway).

A huge percentage of Canadian doctors are members of the CMPA so the chances are that the doctor you’ve just been to see is not insured.

Membership in the CMPA doesn’t count as insurance, as the CMPA is decidedly not an insurance provider.  They are a defense organization for screw-up doctors whose lawyers savagely attack those with the temerity to suggest that the doctor was fallible.

Perhaps we should have a Canadian Patient Protective Association with a huge government-funded war chest for the benefit of those who have been harmed by negligent doctors.

Failing that, there are a few things that must happen:

1.    The Colleges must stop naming CMPA membership as providing adequate liability protection for doctors.  CMPA certainly protects the doctors with high-priced lawyers, but it sure does not protect the patient who has been damaged nor does it protect the family of the patient who has been killed outright by a doctor’s error.

2.    Doctors must be obliged to carry real medical malpractice insurance from a real insurance company, just like anyone else who is required to carry professional liability insurance.  There are obvious advantages to this:

(i)            Doctors, and therefore their patients, would have actual liability insurance coverage.  Compensation to patients would be on the basis of the merit of their case, not on the “if we feel like it” discretionary basis of the CMPA.

(ii)          Those doctors who repeatedly commit errors would be treated as any other insured against whom repeated claims are made.  The first time the insurance company had to pay out, they’d up the premiums.  The second time the insurance company had to pay out, they’d decline further coverage.  And wouldn’t that help to weed out the doctors who really ought not to be allowed anywhere near a patient.

3.    The government must stop liberally bestowing our hard-earned dollars upon this cash-bloated protectionist organization.  If the doctors want to pool their money for lawyers, let them.  It’s probably a good idea.  But let them bear the expense themselves.  Why do we have to pay for the insult-added-to-injury scenario that presents so often when a patient has been harmed?

Let’s level the playing field here for injured patients seeking rightful recompense.