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Want to sue your doctor? You’ll be up against a powerful group with billions of dollars

On the stand in one of his recent medical negligence trials, orthopedic surgeon Dr. Tracy Hicks addressed his unrelated appeal of a decision to limit his privileges at a Metro Vancouver hospital.

“I didn’t really want to win one way or the other,” he said of his legal battle with Peace Arch Hospital in White Rock, BC, according to a 2020 court transcript.

“I wasn’t really interested or not. I just thought I would do it — and it was financed by CMPA [the Canadian Medical Protective Association].”

Hicks ultimately lost hischallenge at BC’s Hospital Appeal Board, sealing his removal from Peace Arch’s emergency on-call schedule. He would also lose the negligence trial and be ordered to pay damages to an elderly woman who suffered months of pain because of his care for her broken hip.

Because of the CMPA, doctors are shielded from the financial and reputational blows of court losses and professional discipline like this, lawyers say malpractice.

Patients and lawyers who’ve gone up against CMPA-funded legal teams say they find themselves profoundly overmatched by the organization’s considerable resources, and they question how the public can seek true accountability under these conditions.

$6B in assets

The CMPA is a unique 122-year-old institution, largely funded by the public, that defends doctors accused of wrongdoing. As of 2021, it sits on assets valued at more than $6 billion, and spends hundreds of millions of dollars each year defending physicians, according to the latest annual report.

“The CMPA is a Goliath of an entity, and they will do whatever they need to do to protect their physicians,” said Stacey McKee, a BC woman who recently won another negligence lawsuit against Hicks.

He’d caused a lifelong deformity when he improperly set McKee’s son’s broken arm, leaving his right forearm hanging downward from his elbow at an awkward angle.

A shirtless young white man is seen from behind, holding his right arm straight out to the side.  The arm bends downward at an unnatural-looking angle from the elbow.
The deformity to Max McKee’s right arm is shown in a recent photo. (Stacey McKee)

The McKee family lawsuit is one of numerous malpractice claims and negligence findings that Hicks has faced over the course of the career. In a response to one recent civil suit, Hicks admitted he’d performed a hip replacement on a woman who actually needed a knee replacement.

Doctors like Hicks who’ve harmed patients can face accountability through civil lawsuits, discipline by their professional colleges and limitations of their hospital privileges. The CMPA defends them in each of those venues.

“They have enormous leverage — leverage ultimately paid for by, in large part, tax dollars — to essentially undermine the interests of the taxpayers who are paying the bill,” said Paul Harte, a Toronto-area medical malpractice lawyer.

The CMPA declined to provide a representative for an interview on the concerns raised by patients and plaintiff lawyers, and sent a written statement instead.

“Our work tangibly enhances the safety of the Canadian healthcare system. We work closely with doctors to help them prevent harm, enhance the safety of their medical care, and improve the patient experience,” the statement says.

The CMPA wouldn’t comment on its role in defending specific doctors like Hicks.

A ‘scorched earth’ approach to fighting lawsuits

The CMPA is an entirely different kind of entity from the insurance companies that provide malpractice or professional liability coverage to other health professionals in Canada and to doctors in the US

It’s a mutual defense organization, founded in 1901 to protect doctors from “financial and professional ruin” and defend their reputations when unhappy patients sue, according to the CMPA website.

An estimated 95 per cent of Canadian doctors are members of the CMPA, which is funded through annual fees paid by members. The bulk of those fees are reimbursed by the provinces — as of 2019, roughly three quarters of the CMPA’s funding comes from taxpayers through a deal reached in the 1980s.

In its written statement to CBC, the CMPA noted that it receives no direct government funding, and is not a party to the agreements that ensure reimbursement of doctor’s fees. Those agreements are negotiated with the government by provincial and territorial medical associations.

According to the most recent annual report, the CMPA spent $116 million in legal costs for defending doctors in court in 2021, and another $91 million for legal defense in other venues. The same year, it paid out $276 million to injured patients.

Because the CMPA is not an insurance company, doctors don’t have to pay a deductible to fight negligence claims and their premiums don’t go up when they’re subject to a large number of complaints or lawsuits.

“There’s no incentive for doctors to do anything other than take a scorched earth approach because they don’t pay anything for the legal fees,” Harte said.

A white man with short gray hair, a dark blazer and a white suit is shown from the shoulders up.
Paul Harte is a medical malpractice lawyer in the Toronto area. (Craig Chivers/CBC)

Plaintiff lawyers say an injured patient faces a very different set of calculations if they want to pursue a negligence claim.

“Because of the odds being stacked so heavily against the injured person, very few cases are cost effective in bringing forward,” Vancouver lawyer Don Renaud said.

Thomas Harding, another Vancouver-area lawyer, recalled facing a team of seven CMPA-funded lawyers in one of his negligence lawsuits.

“If they’ve got seven lawyers and we’ve got one, and they’ve got 30 staff and we’ve got one, they can swamp you,” he said.

Renaud and Harding said they’ve also had success convincing Canadian doctors to serve as expert witnesses for injured patients. They questioned if doctors were reluctant to stand up in court against the same organization that would defend them in a similar situation.

“It’s one big Canada-wide club,” Harding said.

In response to those concerns, the CMPA told CBC News that it advises doctors to make their own decisions on whether to serve as expert witnesses for plaintiff or defense.

‘What is the public interest?’

Harte, Renaud and Harding all agreed that because of the CMPA’s involvement, they generally cannot afford to take on medical malpractice clients unless the doctor’s liability is clear-cut and the expected damages are upwards of several hundred thousand dollars.

They say the result is a steady decline in the number of patients suing their doctors over the past few decades, which CBC confirmed in a 2019 analysis of CMPA numbers. Most of those lawsuits don’t take it to trial, where the public can hear all the evidence of wrongdoing.

“There have been less than 100 medical negligence cases in this entire country of 39 million people that actually went to trial [each year],” Renaud said.

“That’s such a pinprick.”

CMPA data shows that of the 958 legal actions that were involved in resolving in 2021, only 41 were decided at trial.

The lawyers interviewed for this story all said they’d like to see a reflection of the role of the CMPA in Canada’s medical system, including more transparency on how public money is spent and more accountability for doctors who repeatedly hurt people.

“We have to ask ourselves, what is the public interest that’s being achieved here?” Hart said.