The Canadian Medical Protective Association (CMPA) describes itself as a “mutual defence organization” for doctors. The CMPA defends doctors who are sued in civil court for medical negligence. With equal vigor, the CMPA defends doctors charged under the Criminal Code for wrongful acts ranging from over-billing to felony crimes.
CMPA Civil Defence: When doctors face a medico-legal action, they are eligible for assistance in the form of legal representation, and payment of legal costs, judgments or settlements to compensate patients where it is determined they have been harmed by negligent care.
CMPA Criminal Defence: The CMPA exercises its discretion to assist members with criminal charges that arise directly from the MD’s professional work. This includes charges of assault or sexual impropriety within the doctor-patient relationship, as well as fraud and any other criminal activity provided it is related to the medical practice. The CMPA does not pay bail or fines, but does pay the full legal cost of the defence.
What is the source of funding? In 2004 the CMPA signed a sweetheart deal with the provinces to allow CMPA insurance premiums to be subsidized by taxpayer money. Each province has its own rebate program, and subsidies range from 80% to 100%. Consequence: Canada is funding one side of a legal dispute, but not the other side. The CMPA fought to keep this under wraps, but journalists in 2008 won a Freedom of Information application and brought the deal to public attention. The public outcry is still reverberating. Scrambling for damage control, the CMPA in 2010 acknowledged the reimbursement scheme but touted it as beneficial to patients. Read the CMPA brochure: Reimbursement of CMPA Fees: A Benefit to Physicians and their Patients.
Disturbing reports are emerging about brutal tactics sanctioned by the CMPA to “break down” a patient before a lawsuit ever reaches the courtroom. MDs point to declining numbers of malpractice suits as proof they are making fewer mistakes. But watchdogs say the CMPA discourages lawsuits by dragging out litigation and exhausting the patient's emotional and financial reserves. The CMPA is shameless in doing their utmost to grind down a plaintiff (patient) who is already severely depleted from the illness or injury caused by the doctor’s negligence. Recent lawsuits:
Ornstein v. Starr 2011 ONSC
The Judge wrote, “When the 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 costs of aborted discoveries suggests an intentional strategy of delay. I am troubled: this does not accord with the objectives described in the CMPA Strategic Plan. Plaintiffs do not have the war chest and endurance of professional defendants.”
Frazer v. Haukioja, 2008 ONSC 68149
The plaintiffs prevailed at trial in this medical malpractice case The Judge wrote, “Owing to the defendant’s scorched earth policy of putting the plaintiffs to the test of establishing virtually all of their claims on all issues of damages and liability, the trial extended over some 20 days. The central issues were complex and vigorously contested.”
Attorney Alan Shanoff: If taxpayer funds are subsidizing such tactics, perhaps the provincial government ought to scale back, if not eliminate, its reimbursement of CMPA fees.
In modern times, the CMPA has learned the language of damage control, telling the public what they wish to hear. But on their own website, the document History of the CMPA tells a deeper story:
The Canadian Medical Protective Association does not want a fair trial on the merits of whether negligence occurred. Rather, the CMPA with single-minded, callous purpose sets out to exhaust the plaintiff’s finances and spirit. The Canadian Medical Protective Association was founded in 1901, and incorporated in 1913. Shortly afterward, the CMPA Annual Report of 1919 spelled out their goals in chilling language:
Founder Dr. R.W. Powell expressed his dream: “Litigants have found out that our Counsel stands ready to accept service of the writ and your Executive stands ready with a bank account to furnish the sinews of war … Dozens and dozens of cases have thus been strangled at their inception and have disappeared like dew off the grass. This feature gentlemen is the strength and glory of your association.”
Solicitor Francis H. Chrysler, retained by the CMPA as General Counsel from 1906-1934, translated the founding dreams and principles into legal processes. Said he, “The business of the CMPA was and still is protecting physicians, which it does by hiring the best legal help. Testament to the calibre of the legal assistance is evidenced by the number of CMPA counsel who have been appointed to the bench in provincial and federal courts through the years.”
That last goal of stacking the judicial bench is most disturbing.
In Canada, when a doctor is brought before the Justice System, the doctor’s legal defence is funded by the Canadian Medical Protective Association. The CMPA sets no boundaries on the type of cases it takes. The CMPA will defend a doctor sued in civil court for medical negligence causing injury. With equal vigor the CMPA will defend a doctor charged in criminal court for offenses ranging from financial fraud including over-billing, to malfeasance, to sexual battery, to felony crimes.
To finance this large-scale liability protection, the CMPA collects high annual fees. Who pays the fees? Logically, the doctor should. After all, the doctor and no-one else benefits from the service. But the reality is, the taxpayer foots most of the bill.
In 2008 for example, Ontario taxpayers spent $112 million to subsidize the medical malpractice and other legal fees paid by doctors. Doctors themselves paid just $24 million, which means taxpayers picked up 83 percent of the cost of defending doctors who committed civil or criminal wrongs.
Those are massive subsidies. Why no public outcry? The Hamilton Spectator uncovered the reason:
In 2004 the Ontario provincial government met privately with doctors and agreed to subsidize their annual CMPA dues. A Memorandum of Understanding was then signed by three parties: the Ministry of Health, the Ontario Medical Association, and the Canadian Medical Protective Association. It was little publicized. Details of the Memorandum were kept from public view until a court ordered it released following a Freedom of Information request in 2008.
The FOI applicant remains anonymous. He or she was represented in court by adjudicator Daphne Loukidelis. Together they used the Freedom of Information Act to request disclosure from the CMPA. They argued that under the law, the CMPA fits the description of a trade union, and should be subject to the same rules of disclosure as trade unions.
The court agreed, and ordered full disclosure. Read the Ontario judicial decision at: Canadian Medical Protective Association v. Loukidelis 2008 ONSCDC.
The status is similar all across Canada: Doctors contribute annual fees to the CMPA. Each provincial government reimburses a hefty portion of those fees as part of negotiated contracts with the provincial medical associations. The government delivers the cash without any strings attached, despite complaints that public money should not be used to defend doctors accused of criminal wrongdoing or over-billing.
Civil trial lawyers fear that the huge subsidies being paid to fund the legal defence of doctors creates an unequal playing field for patients who hope to pursue a medical negligence case. In essence, the government is funding one side of a legal dispute. So reported the Hamilton Spectator.
In 2003, a team of investigative journalists from CBC News looked in depth at the Canadian Medical Protection Association. The result, broadcast on the CBC program Disclosure, was chilling:
The CBC journalists learned that the Canadian Medical Protective Association has a callous scorched earth policy when defending doctors against malpractice claims. This was unmasked with the help of CMPA insider Paul Harte.
Lawyer Paul Harte now acts on behalf of patients who suffer medical damage through a doctor's malpractice or negligence. But that is recently. For many decades, Harte sat on the other side of the table, helping doctors manufacture a defence in court cases. As part of that job, he worked closely with the Canadian Medical Protective Association.
Harte broke with the CMPA and blew the whistle. As an insider he has material, firsthand knowledge of how that organization works. Paul Harte, along with a former B.C. Supreme Court judge named Thomas Berger, think it is time Canadians were informed about the brutal CMPA tactics. They report:
“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.”
The five segments produced by CBC News are titled:
The CBC program reported the independent experiences of patients Morgan Bystedt, Betty O’Reilly, Shannon Shobridge, Anne McSween, and Lorraine Emmonds. All suffered negligence and serious injury or death caused by a doctor. At the very time they were ill and in medical anguish, all were subjected to deliberate wearing-down tactics from the Canadian Medical Protective Association. The O’Reilly family could not afford the $50,000 retainer their lawyer required to launch a civil claim. The remaining patients did sue. The legal decisions on record are:
Plasma exchange (plasmapheresis) is the only effective treatment known for Guillain-Barre Syndrome. Yet that treatment was withheld from me, and the Saskatoon medical community was not shy in telling me their vengeful reason: It was because I gave evidence in a malpractice suit just one month before I developed the acute paralytic disease Guillain- Barre.
Guillain-Barre Syndrome is an autoimmune disease which attacks the myelin segments which wrap around and insulate the peripheral nerves. The myelin, and sometimes the axon or core of the peripheral nerve, dissolves. The patient is rapidly paralyzed.
The autoimmune process is triggered by 'antiganglioside' antibodies. The acute phase of Guillain Barre lasts as long as the antibodies circulate in the bloodstream. When the antibody level falls, recovery begins. The peripheral nerves re-grow at the (very slow) rate of one inch per month. Recovery is a long road back. What is worse: Guillain-Barre patients are often left with a residual deficit. There can be autonomic dysfunction, and profound muscle fatigue. The patient faces these limits for a lifetime.
Peripheral nerves undergo less damage if the acute phase is short. To artificially shorten that phase, doctors use plasmapheresis, a procedure to filter the large-diameter antibodies out of the bloodstream. With plasmapheresis there is less initial nerve damage, and by extrapolation, fewer residual deficits long-term.
Guillain-Barre has two diagnostic criteria: (1) A lumbar puncture must show elevated protein in the cerebrospinal fluid accompanied by a normal number of white-blood cells. (2) NCV tests of muscle activation must show decreased signal amplitude, delayed latency, slowed conduction velocity, F Wave problems, or outright conduction block. The ragged appearance of the Nerve Conduction Velocity graphs, when contrasted with the smooth fast sine waves of normal muscle, illustrate just how serious this disease is.
It would take an act of extraordinary malice from a neurologist to admit a patient into the hospital; to verify the diagnosis of Guillain-Barre Syndrome by spinal tap and NCV tests; to know that plasmapheresis equipment was available locally; to have no medical reason why the treatment should not be used; but to withhold treatment anyway because the specialist has a retaliatory agenda.
The background: In 1986 I reported Dr. Kenneth Blocka to the College of Physicians and Surgeons of Saskatchewan, the disciplinary body for physicians. Dr. Blocka was a rheumatologist on staff at University Hospital in Saskatoon. The basis of my formal complaint was that Dr. Blocka botched a major, very expensive, referral to the Mayo Clinic for me. When I asked Dr. Blocka to correct his mistakes, Dr. Blocka refused and instead embarked on a prolonged, abusive backlash. The College took no action to stop the backlash. Therefore in 1987 I filed a Statement of Claim to initiate a malpractice lawsuit in Saskatoon Queen's Bench Court. The case was Q.B. #514/87.
The backlash from Dr. Blocka escalated. My family physician at that time, Dr. Roy Chernoff, saw my grief and explained the dynamics to me. Dr. Chernoff told me, in these precise words:
By 1989, after three years of intrusion with no let-up, I sought judicial intervention. I reported those comments, and many similar ones, to the Queen's Bench Court. The court ordered Dr. Blocka to sign a Restraining Order. The lawyer for the doctor did not approve of his client's conduct, and promised the judge he would “lean on Dr. Blocka to sign the Restraining Order.” A month later, in September 1989, I developed Guillain-Barre Syndrome. Although I was hospitalized for two months, I did not receive plasmapheresis (plasma exchange) which is the only effective treatment that can shorten the course of Guillain-Barre Syndrome.
Why was plasmapheresis withheld? My new GP, Dr. Hugh McKee, was negligent because he panicked in the face of a rare disease. But my neurologist Dr. Peter Siemens was criminally culpable. Literally: He knew about the treatment, but deliberately withheld it. In conversation with me, he raised the topic of plasmapheresis just once – in disparaging tones – and added, “You don't want that.” At the end of the conversation Dr. Siemens uttered a clear threat, snarling, “Go to University Hospital and see what happens to you!”
The meaning of the threat: The city of Saskatoon had just one plasmapheresis machine, on site at University Hospital. When someone at St. Paul's Hospital (my location) needed plasmapheresis, he or she was transferred to University Hospital, at least temporarily. But I wasn't. Dr. Blocka, the physician of my past complaint, worked at University Hospital. Dr. Blocka incited among his colleagues an attitude of targeted malice toward me, to the point where medical treatment was refused in an emergency. That attitude prevailed throughout the city. The brutal tactics from Dr. Blocka were condoned by the Canadian Medical Protective Association.
Tuum Est - It Is Up To You
Objective medical information is available now on the web: Patients no longer need to live in a city with a university medical library to become informed about their own health conditions. Doctor rating sites also cover every continent: The skill level of MDs (or lack thereof) can no longer be cloaked in silence.
The power imbalance between doctors and patients led to rife abuse by MDs in the past. The future hopes to see MDs working in partnership with patients. Physicians will be shamed into keeping up to date with technical advances in their field. If they care about rating sites, MDs must give more than lip-service to ethics.
There is a sea change in medicine and law that is swelling into a tidal wave.
In 2010 the CMPA held almost $3 billion in net assets. Swimming in wealth, the CMPA from the outset adopted the model of a mutual defence organization, rather than an insurance company. This means: MDs are covered during retirement as well as during active practice; doctors' estates and surviving heirs also get coverage. In contrast, a commercial insurance company only covers claims made during the period premiums were paid (protection ends when the policy ends).
CMPA premiums are called membership fees, a term connoting solidarity. Other unique features of the CMPA plan:
1. No deductible or co-payment by MDs when a claim is paid out.
2. Premiums don't increase after an MD is sued once or even multiple times.
3. No ceiling on insurance paid out for individual MDs if found guilty.
4. Canadian taxpayers pay most of the annual premiums.
Cruel imbalance: If you are the Plaintiff (injured patient), you actually subsidize the legal defence of your opponent in court. The MD gets the best legal talent money can buy with taxpayer funds, while the injured person relies on pro-bono lawyers, self-representation, or advice from law students. Few patients are lucky enough to find a contingency-fee lawyer.
Our Canadian system rewards lawyers more than injured parties:
A huge gulf exists between the number of Canadian patients injured by negligence, and those who receive compensation. Alberta law professor Gerald Robertson says a paltry 2% are compensated. “We should seriously question this model which compensates so few who are entitled to it.”
Malpractice cases typically involve years of discovery, depositions, and finally the court trial. But injured patients who can't work can't afford attorney rates at $250/hour.
When a law firm takes a negligence case, it is usually on a contingency-fee basis, with the lawyer's fee 30% of a successful settlement. That is why law firms cherry-pick cases that have a sure chance of settlement valued over $100,000. Small or less certain cases get snubbed.
Doctors pay annual dues to the CMPA, but promptly get the lion’s share refunded through a government subsidy plan. The amount of the dues and subsidies vary by medical specialty and geographic region.
Last year, British Columbia deposited $11.4 million tax dollars into the CMPA war chest, and this year the subsidy will increase to $13 million. Watchdogs warn this gives doctors an inside track in legal cases because public funding pays for their top flight legal representation, while patients get no help.
Massive subsidies paid to the CMPA are part of a little-publicized agreement signed in 2004 between the Ministry of Health, the Ontario Medical Association, and the Canadian Medical Protective Association.
The agreement was titled Memorandum of Understanding. All its details were kept from public view until a court ordered it released following a Freedom of Information request in 2008.
Civil trial lawyers fear that the gargantuan subsidies being paid to fund the defence of doctors creates an unequal playing field for patients who hope to pursue a medical negligence case through the courts. In essence, the government is funding one side of a legal dispute.
The Canadian Medical Protective Association pays the cost of defending MDs in an array of cases. Doctors contribute annual fees to the CMPA. However: Provincial governments reimburse a hefty portion of those fees as part of negotiated contracts with provincial medical associations.
The government delivers the cash without any string attached, despite complaints that public money should not be used to defend doctors accused of criminal wrongdoing or over-billing.
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