Canadian Medical Protective Association

The Canadian Medical Protective Association (CMPA) is an organization headquartered in Ottawa, Ontario, Canada, that provides legal defence, liability protection, and risk management education for physicians in Canada, and provides compensation to patients and their families proven to have been harmed by negligent clinical care. The organization was founded at the 1901 annual meeting of the Canadian Medical Association. The CMPA was incorporated by Act of Parliament on 27 February 1913, and given Royal Assent on 16 May 1913.^[1] Most Canadian doctors are members of the CMPA: in 2012 86,000 physicians were members.^[2]

Objectives

In its Strategic Plan,^[3] the CMPA's stated mission is "to protect the professional integrity of physicians and to contribute to a high quality health care system by promoting safer medical care in Canada." Further, the association sees itself as a "valued world-class provider of medical liability protection, a champion of medico-legal risk reduction and recognized as an important contributor to the Canadian health care system." To that end, the CMPA seeks to resolve medico-legal matters on behalf of its member physicians, identify and promote practices that reduce physicians' medico-legal risk, identify system-level changes to reduce adverse events, and support public policy that "contributes to an effective and sustainable medical liability system."

Benefits

Lower health care costs

The CMPA has been credited with helping to control health care costs in Canada by enabling Canadian physicians to avoid the practice of "defensive medicine" such as performing duplicate tests and completing extensive documentation as a shield against malpractice claims.^[4] Importantly, the typical cost of medical malpractice insurance in Canada is about one-tenth of that in the United States.^[5]

History

Early days

On its 100th anniversary, the CMPA published A History of the Canadian Medical Protective Association 1901-2001.^[6] This document contains excerpts from the earliest CMPA annual reports. From pages 7–9:

"Object of the New Association Dr. R.W. Powell, who was the first president of the CMPA, retained the position for 33 years. Dr. Powell’s annual reports optimistically predicted the CMPA would be a large and important organization while describing the difficulties in increasing the membership. His reports are interspersed with harangues on recruiting new members and the 1911 annual report boasted: We have struck terror into the evil minded who have sought to besmirch and even blackmail members of our noble profession. 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."

"Incorporation - A Stormy Passage The Act of Incorporation 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. An 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. Speaking about protecting the rights of the individual, another MP summed up: 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. There was also concern about recruiting physicians to support a plaintiff's case in court."

"Consistent Core Values Dr Powell often reiterated the value: Our organization does not consist in the fights we have put up or in the open success we have had but rather in the silent influence we have swayed against litigants who for a money gain have sought to blast the reputation of conscientious, painstaking and reputable practitioners knowing or suspecting that they have an easy mark and that to avoid publicity a medical man will often submit to what amounts to blackmail. These 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. (CMPA Annual Report, 1919)"

Controversy

Modern public scrutiny

In 2003, CBC News broadcast Inside the CMPA,^[7] the first in-depth look at the Canadian Medical Protective Association. Featured was former CMPA insider Paul Harte who broke with that organization and is now highly critical of it. Harte offered firsthand, material knowledge of the organization. The broadcast discussed five patients (Morgan Bystedt, Betty O’Reilly, Shannon Shobridge, Anne McSween, and Lorraine Emmonds) who suffered serious injury or death due to medical negligence. They were subjected to what some have described as deliberate wearing-down tactics from the CMPA. Lawyer Pete Mockler was quoted as saying, "...the CMPA fights them so hard… They basically take the view that anyone suing a doctor is in the extortion business."

Paul Harte, along with former B.C. Supreme Court judge Thomas Berger, also spoke out in the CBC broadcast:

"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." ^[7]

Public financing

Critics argue that public money should not be used to defend doctors accused of negligence or other wrongdoing^[8] Civil trial lawyers fear that subsidies paid to fund the defence of doctors creates an unequal playing field for patients who hope to pursue a medical negligence case. They argue that the government is funding one side of a legal dispute, but not the other.^[9] Former Ontario Chief Justice Charles Dubin commented that: “Although it is in the public interest that any person charged with a criminal offence be properly represented, it seems difficult to justify public expenditures to place doctors on a different footing from other accused persons.” ^[10]

One MD was charged in criminal court for sexually assaulting multiple patients, was convicted, then was sued by those victims in civil court. The CMPA funded the doctor's criminal defence, and later the CMPA funded the doctor's civil defence. The CMPA, however, will not pay civil damages to a patient assaulted by a doctor even if the assault occurred during a medical exam. This scenario is seen by critics as stacking the deck against victims attempting to seek redress from physicians.^[11]

In 2008, Ontario taxpayers spent $112 million to subsidize the medical malpractice fees paid by doctors. Doctors themselves paid $24 million, which means taxpayers picked up 83 percent of the cost of the malpractice fees. The subsidies paid to the CMPA are part of a "Memorandum of Understanding" between the Ontario Ministry of Health, the Ontario Medical Association, and the Canadian Medical Protective Association. Details of this Memorandum of Understanding between the parties were kept from public view until a court ordered it released following a Freedom of Information request in 2008.^[12]

Former CMPA executive director and CEO Dr. John Gray explained that while Ontario doctors’ invoices from the CMPA will rise dramatically, the provincial physician reimbursement program will be in effect. ‘‘So their out-of-pocket will be no different than they were in 2011/12. The money they pay to CMPA will increase, but they will be eligible to have much of that reimbursed.’’ ^[13]

Patient safety

In recent years the CMPA has promoted itself as a contributor to safer medical care, by claiming to reduce the number and severity of adverse medical events. Each year the CMPA hosts a series of "risk management" conferences and symposia for Canadian physicians, delivers approximately 400 customized workshops, and publishes a quarterly magazine (CMPA Perspective), among other activities.

The CMPA partners with the Canadian Patient Safety Institute (CPSI) to develop programs and tools aimed at improving patient safety: Canadian Disclosure Guidelines, CPSI Safety Competencies, Canadian Patient Safety Officer Course, Patient Safety Education Program, and the Advancing Safety for Patients in Residency (ASPIRE) program.^[14]

Nevertheless, as noted by the 2008 Canadian Healthcare Safety Symposium, there is more work to be done to improve patient safety:

"The progress of the patient safety movement is being stymied by regulatory, structural and attitudinal problems, according to speakers at the eighth annual Canadian Healthcare Safety Symposium. A 'huge gulf' exists between the number of Canadian patients injured by negligence and those who receive compensation, said University of Alberta law professor Gerald Robertson. 'One must seriously question the efficacy of a model which compensates so few who are entitled to it.' Only about 2% of patients injured by negligence in Canada receive compensation, he said, basing his calculation on figures from the Canadian Medical Protective Association research estimating the number of preventable adverse events in Canadian hospitals. Meanwhile, the number of lawsuits against Canadian doctors is dropping — down 30% since 1998 (from 1339 suits commenced in 1998, to 928 suits in 2007) — and only 30% of plaintiffs seeking compensation are successful in court, Robertson noted. Medical negligence cases are complex, time-consuming, expensive and almost always undertaken on a contingency-fee basis. As a result, lawyers are unlikely to take on cases unless there is a chance of a settlement valued over $100 000, he said, noting that lawyers usually seek a fee equal to 30% of a successful settlement. The patient-safety movement may 'raise consciousness' about the need for better compensation for patients, since it will likely raise awareness about the frequency of adverse medical events." ^[15]

One claimant who received compensation, Campbellford resident John Lewis, said "one of the main barriers to patient safety in this country" is the Canadian Medical Protective Association. "It's extremely powerful because of the political influence it wields." ^[16]

Critics of loser-pays rules and bans on contingency fees say such efforts discriminate against patients who can't afford to pursue a claim. However, Canada's loser-pays rule is rarely invoked by the CMPA, largely because most plaintiffs are not in a position to pay.^[17]

Liability protection

The CMPA describes itself as a "mutual defence" organization for doctors. In other words, it is not an insurance company. There is no contract between the CMPA and member physicians ensuring that the CMPA pays damages to victims of medical malpractice. When a doctor is brought before the Canadian justice system, the doctor's legal defense is funded by the CMPA, which uses its discretion on the cases it takes. The CMPA may defend a doctor sued in civil court for medical negligence causing injury, and may also defend a doctor charged in criminal court for offences ranging from financial fraud (such as over-billing), to malfeasance, sexual battery, and felony crimes.^{[18][19][20][21][22]}

The national statistics for negligence lawsuits shown in the table (right) are from the 2012 CMPA Annual Report.^[23] The CMPA does not distinguish between lawsuits which are dismissed, discontinued, or abandoned, but provides only an accumulated total for this category. A lawsuit may be dismissed by the courts, or a lawyer may inform a plaintiff that there is no reasonable chance of success with a lawsuit, in which case it may be abandoned or discontinued. Often, a Statement of Claim is filed years before the case is resolved, thus the number of actions commenced in a given year need not equal the sum of the resolved cases in that year.

Financing

Doctors pay annual membership fees to the CMPA. Provincial governments reimburse a portion of those fees as part of negotiated contracts with provincial medical associations, in lieu of other forms of compensation provided to Canadian physicians.

Membership fees, together with investment income, have enabled the CMPA to acquire a $2.6 billion reserve fund used to provide doctors with legal defence for cases in which the CMPA deems are defensible. CMPA funds are also used to provide compensation, in the form of awards and settlements, to patients and their families found to have been harmed by negligent clinical care. In 2012, CMPA paid out $249 million in awards and settlements.^[23]

Freedom of Information Request

In Ontario, the applicant who made the 2008 Freedom of Information request remains anonymous. He used the FOI Act to request disclosure from the Canadian Medical Protective Association. The Adjudicator hearing the appeal concluded that under the (Ontario) Freedom of Information and Protection of Privacy Act, the CMPA fit the description of a trade union, and should be subject to the access provisions of that statute just as other trade unions are. The Adjudicator also concluded that the Memorandum was not exempt from disclosure and must be disclosed. On review of the decision, the Divisional Court agreed, and upheld the order for disclosure. The judicial decision is: Canadian Medical Protective Association v. Loukidelis, 2008, Ontario Superior Court.^[24]

Prominent Legal Cases

The following cases provide a snapshot of a few high-profile cases of recent years that have attracted the attention of the news media in Canada.

Dr. Nancy Olivieri ~ Dr. Olivieri received legal advice and support from the CMPA in a case involving clinical trials of a drug called deferiprone, or L1. The drug's manufacturer, Apotex, tried to prohibit Dr. Olivieri from informing patients of the risks of L1, and hoped that she would cave to their threats of legal action against her because the cost of hiring legal counsel could be prohibitive. The CMPA played an instrumental role in protecting Dr. Olivieri's professional reputation and in asserting her belief that her ethical duty to her patients and research subjects outweighed any legal obligations she might have had under a confidentiality agreement between herself and Apotex.^[25]

Dr. Richard Austin ~ Joan Jaikaran is one of several women who filed million-dollar lawsuits against Dr. Richard Austin of The Scarborough Hospital, claiming her internal organs were inadvertently cut during surgery. There is no way to evaluate whether that number of lawsuits is unusual for an obstetrician-gynecologist. The Canadian Medical Protective Association doesn't disclose figures on lawsuits by medical specialty. As of 2007, there was no public transparency or accountability built into the system.^[26]

Dr. Mark Stewart ~ Debbie Maki was one of 22 abused patients who sued convicted molester Dr. Mark Stewart along with the College of Physicians and Surgeons. Said Maki: "There is a need to challenge a system that enables doctors to abuse patients without repercussion or reproach." Ultimately, Dr. Stewart was convicted of nine indecent assault charges and sentenced to four years federal time. The College never provided a tally of the complaints it amassed against Stewart during his 25-year practice, but records indicate police interviewed 60 patients before charging him with 76 sex crimes relating to his medical treatment. Stewart continued practicing and abusing patients long after Maki complained in 1994 to college officials. Stewart's civil legal fees as well as his criminal legal representation was covered by the Canadian Medical Protective Association.^[27][28][29]

Vegreville Hospital ~ In 2007, authorities closed this Alberta hospital to new admissions after inspectors reported faulty sterilization and flesh-contaminated surgical tools. The hospital had a clear responsibility to prevent the risk of spreading infection. Patients who sue must prove negligence. An Alberta lawyer said: "It's a David versus Goliath scenario. Doctors, through the CMPA, can expect to have the top medical specialists speak in their defence. They have the access, the contacts, the money. Lawyers for patients have a harder time finding experts who will testify against fellow doctors." A senior Quebec attorney added: "Patients In Quebec have an advantage over those in other provinces because of legislation guaranteeing safety of care. It's one reason why Quebecers who sue have better than 50-50 odds of winning. The average in the rest of Canada is 30 to 35 per cent." ^[30]

Dr. Errol Wai-Ping ~ Obstetrician Dr. Wai-Ping amassed a multitude of patient complaints against him dating back to 1992. The women with obstetrical injuries established a "common cause," and in 2001 launched a Class Action suit against Dr. Wai-Ping, with 375 plaintiffs claiming $25 million in total damages. Finally in 2004 the College of Physicians and Surgeons reviewed the cases and declared Wai-Ping incompetent, noting his complication rate for some procedures was 20 times the provincial average. Dr. Wai-Ping lost his license. However, by 2006 the Class-Action suit was still dragging through the courts, beset by motions filed by lawyers defending Wai-Ping and paid for by the Canadian Medical Protective Association. Critics argue this is an unjust system that pits patients against a physicians' defence fund that offers no accountability in how it spends the money and gives doctors little incentive to settle. Lawyer Paul Harte notes: "The CMPA defence fund is unlicensed, unregulated and not subject to public scrutiny of their books." ^[31]

Scorched Earth Policy ~ In a recent malpractice case, the Canadian Medical Protective Association was accused of grinding down two plaintiffs who were already depleted from the injury caused by the doctor's negligence. The Judge remarked on the aggressive CMPA tactics: “The plaintiff prevailed at trial in this medical malpractice case and recovered a judgment that requires the defendant Dr. Haukioja to pay damages and interest calculated to total $1,914,807.90. Owing to the defendant’s scorched earth policy of putting the plaintiffs to the test of establishing virtually all of his claims on all issues of damages and liability, the trial extended over some 20 days. Central issues were complex and vigorously contested.” The judicial decision is Frazer v. Haukioja, 2008, Ontario Superior Court.^[32]

Waiting List Lawsuits ~ Courts will soon focus on how physicians manage and monitor patients' conditions while they are waiting for care. If a patient is injured due to treatment waiting lists across Canada, the patient may now file a civil claim.^[33][34] In 2007, the CMPA released a report titled "Wait Times: A Medical Liability Perspective." ^[35] Among the recommendations issued by the CMPA: Doctors should advocate hard for their patients for medical procedures the doctor thinks are necessary.

No-fault medical compensation

When the CMPA was incorporated there was an imbalance of knowledge between doctor and patient, which in turn led to what may be considered an imbalance of power in the doctor-patient relationship. Some point to abuse by MDs, both in the healthcare system^[36][37] and in the court system.^[38][39] The arrival of the internet brought a sea change.^[40][41] Today, objective medical information is so readily available that 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 have sprung up, covering every continent.^{[42] [43]} The skill level of MDs, or lack thereof, may be exposed on such sites.^[44][45] Doctors need to keep up to date with technical advances in their field, and demonstrate high ethical standards.^[46][47] Patients, meanwhile, are demanding a medical Glasnost of transparency and accountability.^[48][49][50]

Some critics of the current system want to replace the current tort-based system with a so-called "no-fault" medical compensation system. In 2008, the Canadian Medical Association Journal printed a three-part series on this topic.^[51][52][53] In 2008, Healthcare Quarterly published "Giving Back the Pen: Disclosure, Apology and Early Compensation After Harm in the Health Care Setting." The title refers to a comment made by Bishop Desmond Tutu regarding the importance of restitution after harm: If you take my pen and say you are sorry and don't give me back my pen, nothing has happened..^[54]

In 2005 the CMPA published a comparative analysis of medical liability systems internationally, including in countries with "no fault" systems. It called for "common sense reforms" within the current tort-based compensation system, concluding that Canada's current system is fundamentally sound and "is very likely the best possible model for our circumstances." ^[55]

See also

• Medical Malpractice
• Negligence
• Medical Ethics

External links

• Canadian Medical Protective Association
• Medical Malpractice Liability: Canada Library of Congress
• Inside the CMPA CBC News 2003
• Building a Safer System National Integrated Strategy for Improving Patient Safety in Canadian Health Care

References