Patients who suffer from medical errors face 'rigged system,' critics say
When Anne Levac walked into a Toronto medical clinic nearly seven years ago, she didn’t realize that the procedure would leave her with permanent disabilities.
Levac visited the Rothbart Centre for Pain Care in 2012 in hopes of easing her chronic back pain. A doctor gave her injections into her spine, but the needles were infected with a harmful bacteria.
Two weeks after the procedure, Levac was rushed to hospital with intense pain. She spent weeks in hospital and eventually learned that she sustained permanent nerve damage from the tainted injections.
She suffered memory loss, incontinence and reduced motor skills that forced her to relearn how to write. These days, she can barely climb the stairs in her own home, and a lawsuit she filed five years ago to get compensation to cover her medical expenses remains in the court system.
“(The doctor) ruined our lives. My husband is now a caregiver. I was his partner, we shared everything. Now he takes care of me and that makes me feel rotten,” Levac told CTV News.
Medical errors aren’t uncommon in Canada. In 2013, 28,000 people died from safety incidents in acute and home care settings, according to the Canadian Patient Safety Institute. Those preventable incidents may include errors with medication, preventable infections and injurious falls.
Last year, more than 900 new medical lawsuits were filed in Canadian courts. About half of all medical mistakes are considered preventable, researchers say.
In many cases, injured patients are unable to work and require financial assistance to pay the bills. For patients like Levac, who once led an active lifestyle, a preventable oversight can ruin their quality of life.
The widespread problem has grown to epidemic levels in Canada, according to Kathleen Finlay, CEO and Founder of the Center for Patient Protection.
“I think it is a national health care crisis and it’s not getting nearly the attention it deserves,” said Finlay, who founded the advocacy group after her mother suffered a series of medical errors during a six-month hospitalization.
What’s worse, critics say, is that the system in place to hold doctors accountable is unfairly stacked against patients, who can only get compensation by taking legal action against their doctor. Critics say that doctors often have a financial leg up over patients thanks to the Canadian Medical Protective Association, or CMPA, which has access to more than $3 billion to cover legal defense.
Although most doctors in Canada pay annual fees to the CMPA, the agency is largely funded by provincial and territorial tax dollars, which critics say sets up an unfair David-and-Goliath legal fight between well-funded doctors and patients who are often still in recovery mode.
“I believe we have a rigged system that does more to help doctors than the patients they have harmed,” said Finlay, who described the CMPA as a Frankenstein-like creation designed specifically to help doctors.
“We are paying as taxpayers for a healthcare system that harms us, and the perversity of it is that we have to pay again to defend the doctors who have done the harm. If that isn't perverse I don't know what is.”
A DRAWN-OUT FIGHT
It’s not unusual for cases to drag on for five years or longer, according to Elaine Gibson, an associate law professor at Dalhousie University. She described the system as flawed and said it the CMPA’s goal is to protect doctors and their reputations.
“The fact that physician fees for their defense are heavily subsidized by the governments, the provincial governments in Canada is a particularly perverse aspect of medical malpractice in Canada, because ultimately it’s the taxpayer dollars that are going to defend the physicians against the aggrieved patients,” Gibson said.
“We really should be striving for a better system so that when people get injured due to medical error they can receive compensation, and not a system in which they have to fight tooth and nail.”
The legal process can be so drawn-out that some patients have died midway through a case or simply given up from sheer exhaustion.
“The CMPA is known to really take a scorched-earth approach,” Finlay said. “They would rather spend millions of dollars to fight something than to settle a legitimate claim, and it’s very hard on families.”
In a statement to CTV News, a representative from the CMPA defended the association as “an integral part of the Canadian healthcare system.”
“We are committed to working with governments, medical and healthcare organizations, and our members to enhance the fairness and effectiveness of the medical liability system,” Dr. Douglas Bell, associate executive director and managing director, safe medical care, wrote in a statement.
Bell added that, unlike an insurance company, the CMPA exercises discretion in its decisions to grant legal help to physicians, which are decided on a case-by-case basis.
“Members are generally eligible for legal help for matters related to the professional practice of medicine,” he wrote.
The CMPA also provides compensation for patients harmed by negligent care. Last year, the CMPA paid out $260 million to patients.
PETITION CALLS FOR ACTION
In Levac’s case, a Toronto Public Health investigation found that her injections were infected with staphylococcus aureus bacteria.
Dr. Stephen James was found guilty of incompetence and disciplined by the College of Physicians and Surgeons of Ontario.
In its decision, the committee wrote that the doctor “engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.”
Levac sued the doctor to help pay for her medical supplies. But it's been five years since the legal action began, and Levac said the case has dragged on without resolution.
“I think they are waiting for me to die,” she said.
A group of patient advocates is hoping to change the system. A petition started by retired nurse Terri McGrath is urging Ottawa to hold a national public enquiry “to determine fair methods of compensation for medical errors such as arbitration, medication and a no fault health care compensation board, using the provincial transfer dollars to the CMPA.”
The petition also calls for Canada to follow in the footsteps of countries such as Denmark, which provides no-fault compensation for patients harmed by preventable medical mistakes.
The petition garnered more than 800 signatures and was presented to the House of Commons last month.
If you or a loved one experienced a medical error, we want to hear from you. Please send us an email.
FULL STATEMENT FROM THE CMPA
“The Canadian Medical Protective Association (CMPA) is an integral part of the Canadian healthcare system. We are committed to working with governments, medical and healthcare organizations, and our members to enhance the fairness and effectiveness of the medical liability system. Our mandate is threefold:
- First, unlike an insurance company, the CMPA uses discretion whether to grant assistance (e.g. legal help) to our physician members on a case-by-case basis, rather than through defined policies or protocols. Members are generally eligible for legal help for matters related to the professional practice of medicine. At the same time members are expected to practise ethically and within the regulations of the profession.
- Second, the CMPA provides appropriate compensation to patients proven to have been harmed by negligent medical care provided by a member. In 2018, the CMPA paid $260 Million to patients on behalf of our members.
- Third, we provide our members with continuing education to help them improve their practice, prevent harm and provide safer care to their patients.
The Association does not set ‘premium rebates’ or ‘reimbursement’ agreements for CMPA fees. The provincial/territorial governments and medical associations or federations negotiate ‘reimbursement’ of CMPA fees/agreements as part of the total physician compensation package.
The CMPA is committed to collecting, in a stable and predictable manner, only those fees necessary to meet members' expected medical liability needs. By collecting only those funds necessary to meet members' expected liabilities, the Association contributes to a cost effective system.
The CMPA provides members with an appropriate and ethical defence only when the case is defensible, and does not settle unsubstantiated claims or drag out claims for its own convenience or economic reasons. The CMPA seeks to resolve each case in as timely a manner as is feasible. When experts conclude the standard of care was not met and this failure harmed the patient, appropriate financial compensation to the injured patient or the patient's estate is provided.” -- Dr. Douglas Bell, Associate Executive Director and Managing Director, Safe Medical Care