Suing a doctor? Your tax dollars will be used against you

Canadian physicians are backed by $3.2-billion war chest indirectly funded in part with public money.

Thestar.com
Sept. 15, 2015
By Robert Cribb and Theresa Boyle

Following a medical procedure, you find yourself suffering from a serious, unexpected health issue you believe was caused by negligence.

You decide to sue your doctor for pain, suffering, loss of income and the costs of care.

Here’s what you may not know: you won’t just have to pay your own lawyer. Your tax dollars will finance top-flight lawyers to vigorously defend your doctor and challenge your claims.

Ontario taxpayers last year paid almost $200 million to subsidize the legal defences of doctors charged with medical negligence, regulatory transgressions and criminal offences.

That amount has jumped by 3,200 per cent over the past 28 years, according to Health Ministry figures, and it’s projected to continue rising exponentially.

The money goes from provincial coffers, and via physicians, to the Canadian Medical Protective Association, a self-described “mutual defence organization” that acts much like an insurer. With a war chest of $3.2 billion, the CMPA has a reputation for aggressively defending doctors.

Between 2013/14 and 2014/15 alone, the cost to Ontario of subsidizing doctors’ CMPA fees jumped 28 per cent. Ontario currently subsidizes 81 per cent of those fees.

The increase has raised questions about why taxpayers pay for doctors’ legal advice, especially when there is little public accountability as to how this money is spent.

Beyond annual reports that generally address the organization’s mandate and finances, the CMPA does not disclose how much it pays to defend individual doctors - or even whether it has defended a doctor at all.

Dr. Douglas Bell, CMPA associate executive director, would not confirm, for example, whether his organization funded the defence of Dr. George Doodnaught, the former North York General anesthesiologist who is serving a 10-year sentence for sexually assaulting 21 female patients.

“There are privacy issues,” he said. “We don’t comment on specific physicians.”

Bell argued that the CMPA is not publicly funded - and is therefore not a public entity - because doctors pay the organization directly and are then reimbursed by the province.

Patient lawyer Paul Harte argues that’s just a convenient arrangement that allows the CMPA to escape public scrutiny.

“To suggest that the CMPA is not publicly funded is disingenuous at best,” said Harte. “Whether the money is paid directly to the CMPA or through a physician reimbursement program is a distinction without a difference. Either way, hundreds of millions of dollars are funnelled from the health budget to the CMPA with little accountability and no public oversight.

These expenditures should be subject to the same scrutiny as all other scarce health-care dollars.”

The province is so concerned about the CMPA’s growing burden on public coffers that it is quietly looking at overhauling the entire funding process, a source close to government has told the Star.

The province and its 28,000 doctors, represented by the Ontario Medical Association, clashed over the issue during contract negotiations last year, the source said. “It was a major flashpoint. It came up and up and up.”

One estimate of fee increases that was discussed indicated a jump of 200 per cent in just three years.

“There were radical discussions, things as bold as maybe we (government) shouldn’t be in the CMPA, maybe we should self-insure, maybe we should put it out for an RFP,” said the source, referring to a “request for proposal” from law firms invited to bid for the work.

It was left that the province would explore cheaper alternatives.

OMA president Dr. Mike Toth explained in a written statement that the subsidy has been a bargaining chip in contract talks since the mid-’80s.

At that time, provinces and territories began subsidizing physicians’ CMPA fees to ensure doctors could get liability coverage at a reasonable cost. This was in exchange for lower compensation increases.

Toth said that the physicians’ portion of the bill has also grown substantially. After the provincial reimbursement, doctors paid $49.6 million in fees in 2014, almost 40 per cent more than four years earlier.

Bell said the organization has been forced to hike fees to keep up with increasing compensation payouts. The median compensation payment today is close to $325,000, almost 2.5 times higher than a decade ago, he said.

The provinces and territories must bear some responsibility for growing costs, Bell said, arguing that the civil justice system needs to be reformed to be more efficient and to control expenses.

Even though the organization has $3.2 billion in assets, it actually requires $3.6 billion for future compensation payments to patients, Bell said.

In an effort to contain costs, the CMPA is urging Ontario as well as other provinces and territories to undertake civil justice reforms aimed at eliminating or reducing unnecessary expenses, Bell said.

But he said the best way to keep costs down is to prevent medical negligence. As part of its new strategic plan, the CMPA is placing stronger emphasis on education, Bell said.

“While cost containment is an important goal, the real objective should be cost avoidance through efforts to improve the safety of care and reduce instances of harm. This remains the CMPA’s ultimate goal,” he said.