Why are we paying for doctors’ malpractice?

Doctors in surgery around patient

Most Canadians are not familiar with the Canadian Medical Protection Association (CMPA). The CMPA describes itself as “a not-for-profit mutual defence association.” That is an interesting term, “association”. Even though it acts as an insurer, providing resources to help manage risk and assistance when medical-legal difficulties arise, the CMPA is not an insurer.

 

The Case of Shirley Shannon

In early, 2016, a New Brunswick court ruled that the CMPA is not an insurer and is not required to compensate victims who have been injured by doctors’ negligence or wrongful acts. In that case, Shannon v. Canadian Medical Protection Association, 2016 NBQB 4, the plaintiff, Shirley Shannon was sexually abused by her psychiatrist Dr. Akoto. She started a legal action against Dr. Akoto, who fled Canada and did not defend the lawsuit. Shannon obtained default judgment, which was not paid. Dr. Akoto was a member of the CMPA at the time he committed the assault and for a period of time thereafter. Shannon filed an action against the CMPA, seeking to recover the damages and costs awarded by the court in the initial action against Dr. Akoto. Shannon maintained that Dr. Akoto was insured by the CMPA and that the CMPA was liable to indemnify Shannon for the injuries and resulting damages arising out of Dr. Akoto’s breaches of fiduciary duty, malpractice, and negligence.

The CMPA disputed the allegations, submitting that it was not an insurer nor did it provide contracts of insurance for physicians. The CMPA maintained that it was a mutual defence association for physicians which provides assistance to physicians – in regard to potential liability arising out of the practice of medicine – on a purely discretionary basis.

The court found in favour of the CMPA and agreed that it was not an insurer and did not have to indemnify Shannon for the sexual assault committed by Dr. Akoto, even though he was a member of the CMPA. As a result, Shannon’s substantial judgment for damages obtained against Dr. Akoto for sexual assaults he committed against her remains unsatisfied.

 

CMPA Funding Sources

While doctors pay a “membership fee”, most of the CMPA’s costs are funded by the public. It has been reported that the Ontario public paid about $112 million to the CMPA in 2008. If the public is footing the bill, there should be more transparency in how the CMPA is operated.

Although the CMPA is mostly publicly-funded, it does not exist to protect the public. If the CMPA is not required to indemnify victims of doctors’ negligence or malfeasance, why is the public paying the costs?

It is not unheard of for the CMPA to spend $250,000 to defend a $50,000 claim.

The CMPA exists to protect doctors and takes this mandate to the extreme. The CMPA takes a “scorched-earth” approach to defending cases brought against doctors. While private for-profit insurance companies will often settle out of court to save the cost of protracted litigation, CMPA-funded legal defence teams do not take the same approach. This results in major barriers to justice for patients harmed by our health-care system.

 

Necessary Changes to CMPA Operation

Unfortunately, thousands of Canadians suffer harm from preventable errors in our health-care system every year. In 2015, the National post estimated that about 70,000 patients in Canada suffer serious harm as a result of preventable errors every year.

There needs to be a change. As a starting point, the public needs to stop funding malpractice protection for doctors. Victims of medical error who prove their claims at trial need to be compensated. There should be no discretion for legitimate claims to not be paid. With these two changes, I expect that more victims of medical malpractice will receive fair and reasonable compensation for their injuries.

Kris Bonn
Written by

Kris focuses on helping people who have suffered serious personal injuries, car crash victims and long-term disability claims. Kris also helps people who are facing impaired driving and over 80 related criminal charges. Kris has successfully argued cases before juries, judges and the Court of Appeal in Toronto. Kris is active in the community as a Director of the Ontario Trial Lawyers Association and the local Brain Injury Association Quinte District. He is a member of the Hastings County Law Association and the Advocates Society. He supports local charities, including the Trenton and Belleville Hospital Foundations.