Your tax dollars pay doctors’ legal bills
Couple fighting negligence suit stonewalled by deep pockets of medical defence fund
As medical mistakes go, it doesn’t get much more clear cut than what happened to Felicity Polera.
When the Guelph woman noticed that she was losing hearing in her right ear in 2004, she visited the Canadian Hearing Society in Toronto, which referred her to Dr. Phillip Wade.
What she experienced under his care amounts to negligence according to everyone involved the case — Wade himself, two leading experts who reviewed the facts and a judge who sided with Polera in two civil suit summary judgments.
“(Wade) breached the standard of care expected of an ear, nose and throat sur- geon,” Justice Edward Belobaba concluded based on “uncontroverted evidence” that his “negligent delay and diagnosis” caused Polera “significant injuries, losses and disabilities.”
Polera, 47, can no longer hear or see on the right side of her face, work or afford the constant care she requires or adopt the child she wanted with her husband. And she still hasn’t received a dime of recompense. She might not for years. That’s because the Canadian Medical Protective Association, a legal fund for physicians that is heavily subsidized with public money, has decided to appeal the judgment in Polera’s civil suit against Wade.
For many Canadians even the most compelling stories of medical negligence and error face low odds of success when patients with limited resources stand across from top lawyers paid by the CMPA’s $3.2-billion fund.
“There’s no incentive for them to settle. They have billions of dollars from taxpayers to fight this.”
AMANI OAKLEY
LAWYER
Court documents show that Wade acknowledged he “breached the standard of care owed to (Polera)” and that the breach caused her “injuries and damages.”
But the CMPA appealed the case before a judgment could be made on damages.
Its lawyers take issue with the judge’s finding that Polera proved all her injuries and argue that she is partially responsible for the damages.
Wade declined interview requests from the Star.
In a statement, his CMPA-appointed lawyer, Anne Spafford, said the case “involves a medical error which had an impact on the patient. Early in the litigation, there was an admission that the standard of care had been breached, entitling the patient and her family to compensation.”
Efforts to reach “a fair and equitable resolution” have been unsuccessful, the statement reads. So the resolution must be determined by a court or an agreement reached with Polera.
The CMPA’s website says the organization’s “primary interest and concern has always been, and continues to be, protecting the integrity of its member physicians” for whom it mounts a “vigorous defence” in cases where a physician “has not been careless or negligent.”
When the facts reveal shortcomings that result in harm, the CMPA will “arrange for a financial settlement that is fair to all concerned. When the claim is clearly indefensible, a settlement is negotiated as early as possible.”
As it stands, Polera and her husband, Brian Pittana, will remain in legal limbo that could drag a trial date — and any settlement — into 2020, says their lawyer Amani Oakley.
“It is soul-sucking and demoralizing,” says Oakley. “You get a successful step in the litigation. And instead of moving forward you get appeals and delays. There’s no incentive for them to settle. They have billions of dollars from taxpayers to fight this.”
She says the settlement offered by CMPA lawyers to date is “nowhere near sufficient to compensate for (Polera’s) injuries.”
“They’ll stretch this out for as long as they can,” says Oakley. “And what if (Polera) steps in front of a bus tomorrow? What if one of my experts die? There is a lot that could happen with delay that could make things more favourable for the defence.”
Pittana works three jobs while caring for his wife.
“It’s almost as if (physicians) are invincible and impenetrable. That makes me angry. It’s a travesty what’s taken place.”
Polera was 39 years old when she learned of the medical problems that would change their lives. She could be 52 by the time her fight for compensation is finished, he says.
In 2004, at Polera’s second visit with Wade, he ordered an MRI as one of a number of tests investigating her hearing loss.
The results were faxed to Wade a month later and showed a lesion measuring 2.6 cm “consistent with acoustic neuroma” — a brain tumour.
Polera wouldn’t know this for two years. She says she was never told to return or book an appointment even though she continued to attend at the Canadian Hearing Society for testing and fitting of a hearing aid. She assumed no further medical attention was required.
In January 2007, her hearing failing, she returned for an assessment and was told to make an appointment with Wade.
Polera says she rescheduled three appointments because she was dealing with other health issues and was never informed of any urgency.
Wade’s appeal argues Polera is responsible for “contributory negligence,” because she “failed to attend scheduled appointments and failed to make reasonable inquires into her medical condition.”
The judge found Polera “behaved reasonably and did nothing to contribute to her injuries” which were all “sustained . . . from the breaches of the standard of care” by Wade.
By June 2007, when Polera finally saw Wade, she had lost all hearing in her right ear.
He sent her for another MRI without mentioning the test results from two years earlier.
The new test results — “dramatic interval tumour growth” — came as a complete shock.
The tumour — that the couple knew nothing about — had grown to 3.5 cm by 3.2 cm and caused “marked deformity and displacement,” the report reads.
Polera was referred to a physician at the University Health Network who noted: “Her MRI in 2004 shows a relatively small tumour and now it has grown to a gigantic size.”
Treating the tumour required two surgeries in November 2007, followed by several months in hospital to recover some ability to walk, talk, swallow properly and preserve vision in her right eye.
Her life in turmoil, Polera initiated divorce proceedings against Pittana in January 2008.
“I thought ‘I’m going to be in some kind of institutional setting,’ and I did not want him to have to spend the rest of his life coping with my problems,” she recalls. “I’m very heartbroken about the situation and that this man is not going to be a father. I can’t run after kids. And he’s working too much to be a dad. I don’t think this was the marriage he signed on for.” Pittana talked her out of it. “I looked at her and said, ‘Let’s step back and look at this seriously . . . We deal with one thing at a time. We’ve been a couple since 1982. We were high-school sweethearts. We stick together through thick and thin.’ ”
The couple is awaiting the next stage in the appeal filed by CMPA lawyers.
Pittana, his eyes welling with tears, says there’s nothing to do but keep fighting.
“For us, this is a mission that we need to see through. We’re not backing down.”
“It’s almost as if (physicians) are invincible and impenetrable. That makes me angry. It’s a travesty what’s taken place.”
BRIAN PITTANA