MDs’ insurer ‘should be made accountable’
Victims too often face litigation against ‘well-resourced Goliath,’ medical malpractice lawyer says
The legal insurer for Canadian physicians should be made accountable for the millions of dollars in public money it spends on “scorched earth” tactics defending doctors from negligence and sexual assault allegations, says a top Toronto medical malpractice lawyer.
Amani Oakley told a press conference at Queen’s Park Wednesday that the Canadian Medical Protective Association (CMPA), which has $3.2 billion in funds heavily subsidized by the province through Ontario doctors, should be subject to regular audits by the auditor general and be required to make public how much it pays out to injured patients and how much it is spending on legal costs to defend doctors.
“The role of the CMPA — to protect doctors at all costs — must be tempered with a mandate to do the right thing when patients are injured through medical errors or negligence,” Oakley said in a written statement directed at Health Minister Eric Hoskins.
The minister later told the Star that his government is working with the CMPA and Ontario Medical Association, which represents the province’s 28,000 doctors, to improve the system.
“I’m looking at it from the perspective of how we can make the process better, to make sure that it’s patient-centred and that the process is as seamless as possible,” Hoskins said in a written statement.
It’s also important to ensure the system is fair to physicians, he said, explaining that the availability of adequate medical liability protection helps the province recruit and retain doctors.
“Our commitment to Ontario’s doctors goes back almost 30 years when we first agreed to cost-share or reimburse them for a portion of these costs,” he said.
As reported in a recent Star investigation, Oakley is representing a Guelph, Ont. woman named Felicity Polera who has been engaged in a six-year legal fight over injuries suffered from a brain tumour her former physician — Dr. Phillip Wade — failed to inform her about for two years.
By the time she was told, the tumour had grown dramatically, according to expert witnesses, and triggered a long list of medical ailments.
Although Wade concedes negligence causing Polera harm — a fact confirmed in a judge’s ruling — the physician’s CMPA-appointed lawyers have appealed the judgment and sent the case into further legal limbo that could last into 2020, says Oakley.
In the meantime, Polera has received no compensation for injuries that include lost hearing and vision on the right side of her face. She can’t work or afford the constant care she requires or adopt the child she wanted with her husband, Brian Pittana, who is working three jobs to keep the couple financially afloat.
“I’ve known my wife close to 33 years,” he told the press conference. “This defi- nitely wasn’t the plan we had. It’s been hard. I want this to come to resolution for us to try and get back our life.”
The case amounts to a “medical nightmare” that is far too common in Ontario, says Oakley. Patients who believe they are victims of medical errors routinely face the prospect of litigation against a “wellresourced Goliath,” she said.
Wade has declined interview requests from the Star.
In a written 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.
Dr. Douglas Bell, associate executive director of the CMPA, declined a request for comment Wednesday, saying he cannot speak to individual cases.
In a recent interview with the Star, Dr. Hartley Stern, CEO of the CMPA, said his organization does settle cases and offer compensation when it’s clear a patient has suffered harm as a result of medical error.
“The focus of the civil justice system should be on ensuring fair compensation for plaintiffs who are harmed by negligent medical care. We believe it. It may be that people say we don’t. But I will stand up in front of you and say that it is the truth.”
Oakley, who was to meet with NDP and Tory politicians Friday, says her request for a meeting with Hoskins did not receive a response.
Among Oakley’s proposed reforms to the CMPA structure are caps on hourly legal fees billed and removing free legal representation when the charges facing a doctor are criminal.
“A doctor charged with sexual assault of his patients will . . . avail himself of the unlimited legal representation he gets with his single annual payment to the CMPA,” reads Oakley’s statement, “which is largely refunded back to him by the provincial government.”
Doctors who are frequent users of the CMPA’s legal services due to repeated complaints, lawsuits or charges should have to pay a deductible in order to offset the public costs, Oakley says.
“The CMPA’s well-known ‘scorched earth’ tactic should be abolished and in its place should be enacted a requirement to treat injured patients fairly,” she says. “The CMPA should not be permitted to use the uneven playing field represented by their financial might, to strong-arm patients into accepting inadequate settlements, just to avoid merciless delays.”
“The CMPA should not be permitted to use the uneven playing field . . . to strong-arm patients into accepting inadequate settlements.” AMANI OAKLEY LAWYER