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Mak­ing orga­ni­za­tions like the CMPA rich should not be the goal, or result, of gov­ern­ment pol­i­cy. Pro­tect­ing patients  should be.

Cana­di­ans who expe­ri­ence med­ical harm at the hands of the health­care sys­tem they pay for are often cha­grined to learn that, if they pur­sue their legal reme­dies in court, they are also foot­ing the bill to defend the very physi­cians they claim have harmed them. Now it seems that Cana­di­an tax­pay­ers have been vic­tim­ized by this sys­tem, too.

In a land­mark deci­sion, a New Brunswick court found last June that the pub­licly sub­si­dized Cana­di­an Med­ical Pro­tec­tive Asso­ci­a­tion (CMPA) pri­mar­i­ly exists to defend doc­tors against law­suits and mis­con­duct com­plaints. In oth­er words, it is not an insur­ance lia­bil­i­ty fund to pro­tect the pub­lic. As Madam Jus­tice Tracey DeWare force­ful­ly voiced: “Since its incep­tion in 1901… at all times the CMPA has been an asso­ci­a­tion of physi­cians, run by physi­cians, and for the ben­e­fit of physi­cians. At no time have the objec­tives or scope of the CMPA includ­ed any notion of pro­tec­tion of the pub­lic.…

Since its incep­tion in 1901… at all times the CMPA has been an asso­ci­a­tion of physi­cians, run by physi­cians, and for the ben­e­fit of physi­cians.– Jus­tice Tracey DeWare

For years, provin­cial gov­ern­ments have been fun­nel­ing hun­dreds of mil­lions of dol­lars into the CMPA under the guise that they were pro­tect­ing Cana­di­ans by help­ing to pay for physi­cians’ lia­bil­i­ty insur­ance. Since 1987, the bill paid by Ontario tax­pay­ers to the CMPA has soared by 3,200 per­cent. Not sur­pris­ing­ly, that fund now has a war chest of more than $3 bil­lion. It is that kind of clout that allows the CMPA to pur­sue a “scorched earth” pol­i­cy against vic­tims of med­ical errors, where, accord­ing to some crit­ics, it would pre­fer to spend five times the amount of a claim to defend a case rather than set­tle.

Over the years, patients and fam­i­lies from across Cana­da have writ­ten to me and shared their night­mares involv­ing the CMPA. Many describe how they were scorched by this organization’s pol­i­cy.

I was very sui­ci­dal and sought psy­chi­atric help. I couldn’t sleep. I couldn’t do any­thing but rumi­nate on how wronged I felt.

But this is only one way in which Cana­di­ans who have been injured by avoid­able med­ical errors are sub­ject­ed to more harm when they pur­sue their reme­dies in court. In Cana­da, even on those rare occa­sions when a patient wins, she can lose. That’s what hap­pened to Alli­son Kooi­j­man, whose hor­rif­ic bat­tle with can­cer also saw her become a casu­al­ty of Canada’s legal sys­tem.

Alli­son con­tact­ed me about her sto­ry through the free Out­reach Clin­ic of The Cen­ter for Patient Pro­tec­tion, the patient and fam­i­ly advo­ca­cy I found­ed to help fight med­ical errors and heal the emo­tion­al harm they inflict.

After a typ­i­cal­ly gru­el­ing and long legal process, she man­aged to estab­lish to the sat­is­fac­tion of a British Colum­bia court that some of the physi­cians involved in her diag­no­sis failed to meet the stan­dard of care required of their pro­fes­sion. That’s a huge obsta­cle and one which few patients are able to over­come, espe­cial­ly going up against the CMPA’s 800-pound legal goril­la. But it was not enough.

The court ruled that Alli­son did not sat­is­fy oth­er legal require­ments relat­ed to the harm set out in her claim and dis­missed her case.

In a recent email inter­view, Alli­son (who has con­sent­ed to the release of her sto­ry) described how the lit­i­ga­tion process unleashed fur­ther waves of emo­tion­al harm which began with the ini­tial med­ical dis­as­ter. “I felt like I was on a desert­ed island try­ing to nav­i­gate through it all,” she told me. Feel­ings of aban­don­ment and iso­la­tion are com­mon with many patients and fam­i­lies who have sought legal redress, based on the expe­ri­ences they have shared with me over the past sev­er­al years.

After she learned of the heart-breaking results of her court case, Alli­son fell into a deep depres­sion, leav­ing her in a trou­bling state of per­son­al risk. “I was very sui­ci­dal and sought psy­chi­atric help. I couldn’t sleep. I couldn’t do any­thing but rumi­nate on how wronged I felt,” she recalled.

Need­less to say, the real­iza­tion that she was not only pay­ing for the health­care sys­tem that left her with life-altering injuries, but also con­tribut­ing tax dol­lars to the defense of the doc­tors she claims harmed her, did not assist Allison’s recov­ery. Like many patients who embark upon this per­ilous jour­ney into Canada’s medico-legal mine­field, Alli­son admit­ted that she didn’t even know what the CMPA was until after the tri­al.

 

Cana­da needs to take the med­ical neg­li­gence vic­tim out of the lit­i­ga­tion process.

 

Clear­ly, the legal sys­tem gov­ern­ing Canada’s redress for med­ical blun­ders needs rad­i­cal surgery. The first step is to end the pre­tense that the CMPA is an insur­ance lia­bil­i­ty scheme. As I have long been urg­ing, gov­ern­ments need to stop shov­el­ing mil­lions of dol­lars every year into a fund that places ordi­nary tax­pay­ing vic­tims of the med­ical sys­tem at a dis­ad­van­tage.

I have also argued that Cana­da needs to take the med­ical neg­li­gence vic­tim out of the lit­i­ga­tion process. Some Nordic coun­tries, like Den­mark, years ago moved away from the tra­di­tion­al adver­sar­i­al approach to redress­ing med­ical harm by adopt­ing a no-fault sys­tem that is less con­fronta­tion­al and quick­er. Com­pen­sa­tion awards are based on pain and injury ⎯ not find­ings of neg­li­gence. Meet­ing the typ­i­cal­ly high bar­ri­ers of Canada’s cur­rent sys­tem are not required in order to estab­lish a case for com­pen­sa­tion. Awards tend to be small­er than in suc­cess­ful lit­i­ga­tion (which for plain­tiffs is rare in Cana­da), but they are much more wide­ly dis­bursed.

Just think of all the patients and fam­i­lies who could have been helped if even a frac­tion of the for­tune that has been doled out to the CMPA by gov­ern­ments had gone instead into sup­port­ing those who have been harmed and need com­pen­sa­tion to heal.

Harm to patients in the Cana­di­an hos­pi­tal set­ting is no small mat­ter. One major provider admits that every 17 min­utes a patient dies from a pre­ventable med­ical error while in hos­pi­tal care. Anoth­er study claims that one in 18 patients has been harmed while in the hos­pi­tal. How we deal with what I call a clear and present health­care cri­sis, and how fair and acces­si­ble our sys­tems to address this harm are, is a mea­sure of our com­pas­sion as a soci­ety, as well as com­mon sense.

I know only too well the stag­ger­ing extent of that harm because I hear from these patients and fam­i­lies every day. Often addi­tion­al tragedies like mar­riage breakups, sub­stance abuse, finan­cial ruin and even threats of self-harm emerge to com­pound the dam­ages in the after­math of the adverse hos­pi­tal expe­ri­ence.

Mak­ing orga­ni­za­tions like the CMPA rich should not be the goal, or result, of provin­cial gov­ern­ment pol­i­cy. Pro­tect­ing patients and heal­ing those phys­i­cal­ly and emo­tion­al­ly injured by the health­care sys­tem, like Alli­son and so many oth­ers, should be.

(If you have a sto­ry about an expe­ri­ence with Canada’s CMPA, or med­ical neg­li­gence in oth­er coun­tries, con­sid­er shar­ing it.  You can con­tact us here.)

(If you are a law firm that wish­es to learn more about the adverse expe­ri­ences of med­ical clients dur­ing the lit­i­ga­tion process, and how to pro­vide them with bet­ter emo­tion­al sup­port, we can be reached here.)

Pub­lished in The Huff­in­g­ton Post

Mak­ing orga­ni­za­tions like the CMPA rich should not be the goal, or result, of gov­ern­ment pol­i­cy. Pro­tect­ing patients  should be. Cana­di­ans who expe­ri­ence med­ical harm at the hands of the health­care sys­tem they pay for are often cha­grined to learn that, if they pur­sue their legal reme­dies in court, they are also foot­ing the bill […]

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