Doctors’ Blame & Shame – Ontario Bill 29

4 thoughts on “Doctors’ Blame & Shame – Ontario Bill 29”

1. Not to worry,most private members bills,especially from opposition party members, never see the light of day.

   1. Great point. It did pass first reading easily and aligns with Hoskins’ transparency push which the Toronto Star directed. It will be interesting to watch. Politics replaces patient care.

      Thanks for commenting!

      Shawn

2. Hi Shawn

   I just recently ordered your book, and find many of your posts here enlightening and thoughtful. However, I am surprised at the position you have taken on “blame and shame”. I used to work in health care and now I am a medical malpractice lawyer and represent injured patients.

   I am one of the biggest advocates for shining the light on what happened to injure a patient, and providing that information to patients.

   I agree with many of your comments regarding Bill 29, in that it is silly to list the names of patients who have died while under a doctor’s care. That in no way reflects whether a doctor is a good doctor or a bad doctor, and is far more reflective of the area of practice of a physician. For example, in my books, I think it is far more a symptom of negligence for a doctor to lose a 17 year old patient with no previous health problems, than to lose 10 patients in a geriatrician’s practice.

   However, I agree with the principle of Bill 29. The Bill needs fixing, to be sure, but patients should be able to know a doctor’s track record and should be able to go to the CPSO register to find out about such things as SUCCESSFUL medical malpractice actions or court findings made against a doctor. Again, I disagree with Bill 29’s requirement for a listing of ALL complaints or lawsuits as many such complaints or lawsuits aren’t legitimate or supportable, but once the complaint and/or court process has reached its conclusion, and if a doctor were to be found to have acted improperly, it is essential that the public gets to know about this, and is able to make informed decisions accordingly.

   I find it odd that you advocate for telling patients about the true state of our health care system (a concept with which I concur), and mock the concept that patients can’t take the bad news, but do not seem to extend the exact same principles to providing patients with information about the folks we authorize to poke and prod at us, take our blood, cut us open and see us naked.

   I currently represent a young woman who had a benign brain tumour, seen on MRI in 2004 but not acted upon until 2007 as a result of the negligence of her ENT. I have taken this case public because it demonstrates that even though I have now obtained THREE court rulings against the doctor, the multibillion dollar taxpayer-funded slush fund controlled by the CMPA, has refused to fairly settle with my client.

   The court rulings I have obtained: (1) confirm that the ENT was negligent and did not meet the appropriate standard of care in at least seven ways; (2) listed 39 different injuries suffered by my client as a result of the delay in removing the tumour and the necessarily much more complex surgery required in 2007 as a result of the much-enlarged tumour; and, (3) dismissed the doctor’s allegation that the patient was herself to blame for her own injuries.

   The doctor even appealed these findings to the Court of Appeal, and I won there as well.

   These findings of the doctor’s negligence are now well past the point of conjecture. The multi-billion dollar CMPA, with its vast resources, was unable to provide expert reports that supported this doctor’s actions, and thus, the doctor failed to present compelling arguments to the Court. The allegations have been tested in Court, before a judge, and the doctor had a very very high priced CMPA lawyer representing him, and the CMPA’s billions to draw from, and he was unable to succeed. So, in a system heavily tilted in favour of the physician, he nonetheless lost.

   So, here is what the CPSO has now posted on the “public register” about this doctor:

   “On November 14, 2014, at the Ontario Superior Court of Justice, Toronto, a finding of professional negligence was made against Dr. Philip Wade in respect of an incident that took place in 2004.”

   This single sentence is intended, I take it, to encapsulate the judicial decisions in this action, which probably now run to more than 100 pages of decisions, expert reports, appeal findings, etc.

   Now, if the CPSO’s role was to minimize the findings of the Courts in this case, I think they have done an admirable job in deciding to encapsulate what has happened, by listing that single sentence in the Registry.

   If their job is instead to safeguard the public, increase transparency and allow the public to access key information about their doctors, they have stunningly failed.

   Bill 29 is an attempt to fix this failure, though unfortunately, I think it is full of flaws and seems to suffer from a lack of appropriate consultation. In my view, unproven complaints should not appear on the Registry, BUT are you aware that at this moment, the vast majority of complaints to the CPSO are handled by the Complaints Committee, and even if upheld, do not appear on the Registry? The only complaints that appear on the Registry are the tiny fraction of complaints that the Complaints Committee refers to the Discipline Committee (less than 5%) AND THEN, IF those complaints are upheld by the Discipline Committee, then the findings are listed in the Registry.

   Unfortunately, from my perspective, this sends an incorrect message to a patient seeking reassurance about his/her physician. A patient can check the Registry and determine that there are no disciplinary findings against the doctor. This leads the patient to incorrectly presume that his/her doctor must be okay. Nothing could be further from the truth. There could be dozens of complaints upheld by the Complaints Committee against that doctor, and none of these would be discoverable by checking the CPSO Register. (I know this too, because I represented 99 women who had been injured by a single gynaecologist, and though there were previous complaints upheld against the doctor, NONE of them were accessible to the public nor listed in the Registry – so women just kept going to this fellow like lambs to a slaughter, entirely unaware of other women who had already complained about his negligence.)

   In fact, the problem is that these complaints are not discoverable by patients, no matter where they check. Patients should have a right to be confident that there is a central place to check on the background of doctors (and in fact, any health care provider).

   The startling and unacceptable reality is not only that there is no such source for this information, but that the professional colleges who were established to be that source, pretend to provide that information and thus mislead the public into thinking that the absence of it on their Register must mean that the doctor has no complaints, legal findings, etc., against him or her.

   You can probably find out more information about the fellow you hire to renovate your kitchen, then you can about the doctor who is about to cut into your abdomen to perform invasive surgery on you.

   And as for the mantra of “blame and shame”, again I cannot go along. Sometimes it is necessary to make an individual or individuals accountable. When I worked in hospitals, I was always worried about being sued. And what’s wrong with that? It made me cautious and thoughtful, and had me take that extra step to avoid a communication error or a potential problem with an abnormal patient result. The reality is that there were only about 800 medical malpractice lawsuits ACROSS CANADA started annually for the last number of years, and so the odds of a doctor being sued are something like one possible action for every 21 years of medical practice. Moreover, the difficult reality for those patients who have been injured by medical errors (and the estimate for that is 1 in every 13 patient visits to hospital – ie, thousands and thousands and thousands across Canada annually) is that the vast majority of these lawsuits are dropped.

   Instead of “blame and shame”, we have a system of secrecy that shields health care providers at the expense of patients. And when a bill like Bill 29 is introduced, very very big lobbyists – often well-subsidized by our tax dollars – will go to work to ensure it will never pass.

   There is no question that the vast majority of doctors are extremely caring, conscientious human beings who sacrifice mightily to provide great patient care, often against all odds in an underfunded environment. But those folks should not circle the wagons to protect the individuals in their midst, who aren’t up to snuff. Again, drawing on my time in hospital, we all knew who these folks were, but often, in-hospital politics would prevent them from being identified. For example, one Committee on which my colleague sat, was responsible for tracking the post-surgical infection rate of physicians and the Committee was well aware that Dr. X had the highest post-surgical infection rate – significantly higher than his colleagues. But Dr. X was a senior physician and not approachable (would become furious when this subject was broached with him), so the Committee determined it was unable to address this elevated infection rate. Instead, when asked to provide such information in a lawsuit, a hospital will refuse to do so, and if forced to do so by a court, will often only provide a department-wide average, thus obviously burying that particular doctor’s elevated stats, in amongst his colleagues. The reality is that the hospital SHOULD have reported this doctor to the CPSO, who SHOULD investigate and force the doctor to take remediation courses, etc. Failure to do so, and failure to provide these statistics should litigation occur (and the odds are astronomically low that someone will sue or know enough to even think of suing), quite deliberately and knowingly puts patients directly in harm’s way.

   To suggest that if you don’t “blame and shame” that the folks in the know, will come together to fix their own problems, is not only disingenuous but anyone who has worked in a hospital, certainly knows better. If this approach was a successful one, then the fact that the hospitals have for 12 years now been able to completely shield the workings of Quality Committees struck to investigate “critical events” arising from medical errors, from lawyers, courts, the CPSO, the Privacy Office, etc., should have resulted in at least an appreciable drop in medical error rates. Instead, the opposite has happened, with error rates skyrocketing.

   The reality is that this misguided “cone of silence” approach doesn’t work. As well, it is disrespectful of the rights of patients to know what has happened to them, why it happened and who did this to them. And frankly, it is what every other industry wishes it could have: a secret zone to discuss what went wrong without having to tell the public about it.

   I think that we all want the same thing: better patient care. Patients in the know – whether about the poor funding that is at the root of many health care system problems, or about their doctor’s abilities – will be the catalyst for improvements in the system.

   1. Thank you Amani!

      Since your comment is so long, I will let it stand on its own. I hope readers take the time you read through all the excellent points your raise. I do not agree with everything you said, but I sure appreciate you taking time to share it!

      Best,

      Shawn

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