Sue Government, Then What?

Blind JusticeWise people insist that patience is a virtue. No question, absence makes us fonder for some things. But waiting ranks between nuisance and torture most of the time.

Just wait ’til your father gets home!

Someone’s here from a lawyer’s office. I’ll let her in.

Thanks for calling back. Just wait while I get the doctor.

The minutes between hearing – and our new life that follows – linger long after the news. Waiting separates our old self; it opens an existential gap filled with uncertainty.

Sue Government

Doctors launched a challenge under the Canadian Charter of Rights and Freedoms against the Government of Ontario this week. It argues that government ignored doctors’ rights. It will take years to settle. This is the second time doctors have had to sue government in 3 years.

In the meantime, we wait. We wait while politicians hack away at medical services, and access deteriorates.

What if doctors lose their case? Maybe the courts will find in favour of the government?

Perhaps a judge will award an arbitration process, but arbitrators might find that there is absolutely no way to return services back to 2012.

Maybe an arbitrator will reset the game, call a start-over with all the players in their current positions. An arbitrator might say that physicians in the new grad entry program should be grateful with their $100k salary. It was their choice to study medicine. They could have become nurse practitioners, if they wanted.

What happens between suit and settlement?

New grads leave, as they should. Established doctors who can relocate take their chances while there’s still work elsewhere. Retirement beckons others. Meanwhile, government can go on to cut more. No one can stop it.

Government will probably make an offer to settle the suit. Will doctors blink and drop it?

If the government offered a 2% raise with stability for 4 or even six years, would doctors make a deal? Would they give up their basic rights for a bowl of porridge?

Strategic Pause

All professional athletes have talent; the greatest know when to not use it. A simple pause can work better than a trick shot. But an expected pause does nothing. The game goes on with no change in strategy.

Doctors hope the Charter challenge will bring fundamental change in how government deals with physicians. It calls for new rules, an acknowledgement that doctors have the right to be treated fairly, too.

Lawsuits change people. The wait after filing solidifies new character.  Two lawsuits in three years has shown a whole generation of doctors the worst of central planning, of nationalized public service. Very few docs enthuse about working with government these days. It helps younger doctors understand the suspicion older colleagues have long held about government programs.

Doctors have placed their faith in a justice system built on rights and freedoms. Let’s hope it’s worth the wait.

 

40 thoughts on “Sue Government, Then What?”

  1. “Very few docs enthuse about working with government these days.” True
    My feeling is that docs have seen things deteriorate so much, from both a “relationship with MOH” perspective, and a “Health of the system” perspective, that little band-aids aren’t going to do any good.
    I have said this before, but “Partnering Up” with government at this juncture will just lead to doctors taking ownership of the impending disaster in healthcare, when it should be the government’s political mess to mop up.
    It could take several years of “holding back” and a lost generation though.
    I imagine some groups will break down and decide to work with government to “improve the system”. I can only be quietly critical of them because I know that is human nature, and that their hearts will be in the right place.
    There will be many unintended consequences for any strategy going forward.

    1. Great comment, John. I share these same worries. At some point, a large group of doctors will say, Enough! Unfortunately, it will leave the medical profession with multiple groups, not one big association, I suspect.

      We might end up with a party model for medical governance, if we wanted to stay as one medical ‘nation’. We could run it like a full-blown western representative democracy. If we don’t work that part out, we’ll be a group of factions.

      Of course, all of this is just my day-dreaming. Most doctors don’t bother with politics enough to care much either way; they’d rather see patients.

      Thanks again for reading and commenting!

      Cheers

      Shawn

      1. Actually Shawn, it may be time to think outside the box. Historically when we bargain as one big group we collectively get nowhere. We fall into this alternating pattern or winning for specialists in one rounds and staying the same in the next round for family doctors. Smaller sub-groups have had more success are wringing concessions out of government than the OMA as a whole. eg Obstetricians when they refused new OB referrals, radiologists when they walked off, and Ortho when they started refusing new referrals because the waiting list was too long. It may be better to re-structure the OMA as an umbrella Union with smaller locals representing the specialties. Job actions would be easier for the smaller groups and we can avoid having one group played against the other to achieve “THE PSA”. Trying to get one contract to rule them all just brings more power to Mordor! The ONE PSA needs to be cast in the fire.

        1. Well said. Often the interests of the specialties will differ, and might even conflict. There will be times when we all might be better off shaking hands, wishing each other luck and retreating to respective corners.

          1. Ernest, I like it. I was thinking along these lines after the 2012 fee agreement between the Oma and the government. Your comment here is starting to crystallize the idea better in my mind. I wrote a blog article right after that agreement and it seems that Ernest’s ideas are another step in the same direction. I am sure that Shawn has read this and may be sick of my referring to it all the time, but I do believe that if you have not read it, this explains why Ernest is right in his thinking about specialties’ going it alone.

            http://healthydebate.ca/opinions/is-the-oma-an-appropriate-vehicle-for-negotiating-doctors-fees

            The comments after my article are very interesting, especially in light of what has happened recently in negotiations. There are even comments written in the last few weeks that relate to the 2012 agreement and the article. It appears that some of the commentators foresaw the current mess that Ontario doctors and the Oma are in.

            1. Don’t ever apologize for referencing that article, Gerry! You need to share the same thought at least 5 times just to get one idea across. You’ve haven’t hit 5 yet! 🙂

              When everyone gets raises, we hold our noses to relativity issues. But when government refuses to negotiate year after year, we all start thinking about how to renovate from the ground up. This can help, as long as we’re not just making change for the sake of doing so.

              I’m still waiting for a vocal group of physicians to start asking to discuss Winkler’s ‘collision course’. Most docs – even the really angry ones coming out to the meetings – continue to call for solutions within the current paradigm.

              Thanks again for taking time to share!

              Best,

              Shawn

              1. As a patient more than as a physician, I fear very much for the current health care system being able to deliver the care that I personally will need. The current fiscal strife will not be smooth nor fun for government, doctors and patients. Shawn, sadly my prediction is that the system will have to fall apart before a Phoenix rises from the ashes.

        2. Great comments, Ernest. I love the LOTR reference, too!

          I think many docs would agree. This idea could be expanded. Would the weight of the collective still back the smaller groups?

          The current structure benefits government. They could never hope to negotiate with >60 sections.

          Thanks for sharing this! Excellent.

          Cheers

          Shawn

  2. Many specialists continue to “work with” OHIP against residents of Ontario in appeals to the Health Services Appeal and Review Board despite the fact that physicians have “launched a challenge under the Canadian Charter of Rights and Freedoms against the Government of Ontario this week.” There is a hearing next week at the Board where a specialist will be “assisting” OHIP against a child with cerebral palsy.

    1. I didn’t realise this, Perry. Thank you for posting this!

      If we include all the MDs working in admin, we might find a small village of physician bureaucrats. It might be interesting to debate this…

      Thanks so much for reading and leaving a comment!

      Cheers

      Shawn

  3. Thanks again Shawn for your blog. There is no question that the government can continue their unilateral action officially until March 31st, 2017 (when the current agreement expires (even though we don’t have an agreement)). Interestingly, it would be easier to sue the government for breach of contract (currently) than the charter challenge. I discussed this with a lawyer. The issue is, determining if there was a breach (likely was). If there are further actions by the government it will make the court decision very easy. In that case, more likely to win the challenge relatively easier. Having said that, we’re in a good position from the charter perspective because of very impressive precedent from pretty well all jurisdictions in the country. I agree that the starting position will be debatable but the arbitrator will be forces to look at the data in detail dating back to 2012. In terms of what we should do…I hope that they follow through with the challenge. It should be noted that we actually don’t want a raise…we just want stability in funding. If they offer a 2 percent raise to drop the lawsuit, they should counter with, “we don’t want more money, we just want binding arbitration”.

    1. There was no need to launch a challenge under the Canadian Charter of Rights and Freedoms against the Government of Ontario. All that physicians have to do is to “create a crisis” in the Government by withdrawing from all services that physicians perform for the Government.

      1. Makes sense…but launching the challenge legitimizes the struggle. I agree, there are many things physicians do for the government. I assume this has nothing to do with patient services….I and most most physicians feel that is unprofessional and harmful. A number of docs have already withdrawn from voluntary positions. Examples include hospital committees, teaching, government committees etc.

      2. I understand from a previous comment that you were an OHIP lawyer. I guess you mean docs should not work with the government on cases where resident’s require review. I’m surprised that these high profile cases (like the one you mention above with the individual with cerebral palsy) do not make the paper. Why would specialists work for the MOH in this way? Is the pay that good?

        1. OHIP pays specialists a substantial hourly fee plus expenses to prepare expert opinions and to testify at hearings before the Health Services Appeal and Review Board. As far as I am aware, Global News and the Toronto Sun will be attending the hearing next Thursday and Friday where the Appellant is a child with cerebral palsy.

          1. Understood. I am a specialist and would never take such a job. I hope that other specialists avoid assisting in this way. Just the idea of attempting to provide expert evidence in individual cases that involve sad and unfortunate situations….just doesn’t seem right. Just this past week I heard the health minister mention that they would assist two patients with Elher’s Danlos Syndrome with medications. I’m surprised that some things are argued for and others are not.

            1. I did a little bit of medico legal work in my career. I would say flat out to any insurer that asked me to review a chart or see a patient that I would only do the work if I was totally free to give my honest opinion EITHER WAY.

              I have never worked for Ministry of Health but just because they rule against a patient does not mean that OHIP was wrong. There have been cases in the media where patients went to the US and OHIP did not pay because the surgery could have been done here. There was one in particular where I saw a discussion among several surgeons that said there was no problem at all at doing the surgery in Ontario and that they could have done it themselves. In that case, at least, OHIP was right.

              1. OHIP is “right” in almost all hearings before the Health Services Appeal and Review Board , in part, because OHIP has the resources to retain specialists and is represented by lawyers whereas Appellants do not have the resources to retain specialists or lawyers.

                1. When I said “right”, I did not mean winning. In the case I was talking about, OHIP made the CORRECT decision in that specific circumstance. The patient was treatable in Ontario and just because the doctor in another country was touted as “the best”, there were equally good surgeons here and there was a hospital that had the facilities to do it.

                  I believe that patients should have the right to pay for whatever they want in healthcare but they should not have the right to make taxpayers fund it. I also believe that we should have a safetly net so no one is bankrupted by medical treatment.

                  1. In the current environment, query why specialists would continue to assist OHIP in making “the CORRECT decision” in any case. Query whether it is the substantial hourly fee plus expenses that OHIP pays specialists to prepare expert opinions and to testify as expert witnesses at the Health Services Appeal and Review Board. Query whether specialists could “create a crisis” at OHIP and the Ministry if they refused to continue to assist OHIP in making “the CORRECT decision” in every case.

                    1. I sure enjoyed this string of comments! Thanks for taking time to have your conversation here.

                      The comments end up taking centre stage for any post. So again, Thank You for making it so much better for readers!

                      Cheers

                    2. I agree that as a sanction against the government, physicians could stop working for the government. Ironically, if OHIP pays these out of country patients from the OHIP Global Budget then physicians would be clawed back that money as OHIP goes over budget.

                      The government could then be the good guys on physicians’ backs.

  4. “I’m still waiting for a vocal group of physicians to start asking to discuss Winkler’s ‘collision course’”

    Why is the OMA not ‘cherry-picking’ this from Justice Winkler’s report and putting it out there like the MOH is. Sometimes to fight an effective war, ya gotta get in the mud and ‘engage’ your opponent.

    The system is unsustainable…full stop. There are NO palatable solutions given the current paradigm. To try to find acceptable solutions within this current universal ‘one payer’ system is impossible given the demographic and economic landscape that will dominate over the next 20 years.

    A hybrid system will be better for patients, physicians and government. Health care needs to return to the early days where government paid for things that were more expensive and needed…not everything that was wanted.

    Right now health care is a political football sold as a ‘free all you can eat buffet’. The result is long lineups, the fare at the table is middling and bland and the cooks are paying for the food.

    1. Well said, Paul! I used to think it was fear or maleficence that stopped people from discussing fundamental change. Now I think it’s just ignorance. People do not know about options besides what they think they know about the American system, and they are not inclined to learn.

      Thanks again for writing!

  5. You have hit the nail right on the head! The Government of Ontario is in the process of cost shifting the cost of Medicare from the Government of Ontario to physicians and other health care providers such as community laboratories. The goal or objective of the Government of Ontario is to have physicians and other health care providers become partners in the sustainability of Medicare.

    1. Exactly. I would add that they are also shifting cost risk onto physicians. Cuts shift costs onto doctors. Reconciliation (clawbacks), and capitation models before that, shifts cost-risk onto doctors, too.

      Thanks so much for all your excellent comments, Perry! I really appreciate getting your legal perspective and years of experience injected into the discussion…makes it so much better.

      Best,

      Shawn

  6. I like this post, a lot.

    Not only have the Doc’s in ON been hit, but healthcare as a whole has been subject to Liberal spankings for far too long! This path Wynne is on is slowly crippling our Provincial status as the leader in all things… Including medical! I remember when the pharmacists started getting the drug manufacturers kick-back taken away… and sadly we are now going after the doctors?

    I thank the OMA for going head to head… even if (in the worst case) it is for nothing, at least the OMA has the balls to step up and say ‘NO”.

    Good blog, Shawn.
    -Josh

    1. Thanks for taking time to read and share a comment, Josh!

      Things were bad in the late 1980s and 1990s, as far as I can tell. This is worse. I sure hope something improves soon. The government can move on and blame the next one, or the one before it. Doctors cannot move on. They get blamed now for not providing enough access, driving up costs, moving away, in fact, doctors get blamed for just about every problem in healthcare.

      I think we all hope the Charter challenge will help. Hopefully soon.

      Thanks again!

      Best regards,

      Shawn

  7. I don’t want to seem partisan here. Many of you already know that I feel in politics we pick the “least bad”.

    re: “The government can move on and blame the next one” but probably not forever.”

    Ironically, it was when there were both a Federal and Provincial Liberal party in power in the mid-80’s that private billing above OHIP was banned by legislation. Now we have the same political parties in power and maybe they will be the ones who finally admit that they had promised the impossible and created an untenable situation in health care.

    1. Good observation, Gerry. I had not thought of that angle. Maybe political alignment will give them the courage to touch the third rail of politics, healthcare.

      But I’m not holding my breath.

      Based on what I’ve seen of Wynne, and what we’ve heard from Justin, I anticipate more money thrown at the ‘system’ without fundamental change. We need to start delisting some services.

      1. It is inevitable. It will be painful for government, patients and doctors as well as other health care professionals. In the end things may well be much better for everyone but it is impossible to say how long that will be.

        I predicted a few years ago that it would be the NDP would be the party to bring in some private money. So far I have been wrong but remember it was Nixon who was the first American president to visit China.

          1. Too funny! I thought of you when I read that article this week. I took it as a message. Nixon to China two times in one week must be a trend. It must have some significance beyond the fact that it happened!

            Thanks for adding the article to the comments – definitely worth a read!

            Best,

            Shawn

  8. Shawn,

    I appreciate the sobering assessment and comments you have made. I too suspect that many physicians will not play the waiting game, and move on to greener pastures. I certainly am disillusioned, and have moved on.
    You are correct that most physicians are not interested in the politics, and just want to do what they do best, dealing with patients.
    There is virtue in adopting a less paternalistic approach, which is our nature as physicians, and let government fix their own messes, but we cannot help our selves trying to fix things, and so I suspect that nothing will change until we change.
    Everybody knows that we are at heart helpers and fixers, and genuinely do this as a result of our morals and ethics. Unfortunately governments, health ministries, and colleges, to name a few, abuse these attributes that we hold dear, knowing that we will never sacrifice our patients for any cause. Here is where we lose this political game.
    Physicians are being fragmented in to smaller and smaller groups, which the government is also well aware of, divide and conquer, right?!
    In the end though, I still choose to not give up the quest though, and thank you for doing the same.

    1. Great comments, Wayne!

      You said you, “…have moved on.” Does that mean you found other work, the same job somewhere else, or you’ve just moved on emotionally?

      I agree. We have no teeth. Like watching a bully pick on someone, it must be painful. It’s nice to see some journalists starting to talk about it. Patients lose out when governments cut medical services.

      I sure appreciate you reading and sharing your thoughts!

      Best,

      Shawn

      1. Wayne makes excellent points. For many years when government or administrators have disagreed with physicians on many topics I have urged my colleagues to tell them that you have warned them, they are going against what you advise and the consequences of their decision is their fault and theirs alone. Then walk away.

  9. Pingback: Ontario’s Doctors in the News | Ontario’s Doctors

Comments are closed.