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:
- 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.
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