Posted By The MJLH | RDSM Team – Oct. 22, 2011
The Canadian Medical Protective Association (CMPA) is a mutual defense organization which handles the legal defence of doctors across the country in malpractice lawsuits and disciplinary hearings. Dr John Gray is the head of the CMPA. Several months ago, the MJLH sat down with Dr Gray, Executive Director/CEO of the CMPA. The interview transcript follows.
The CMPA describes itself as a “mutual defence organization.” Can you explain how that differs from an insurance corporation?
We are actually in some respects different from most organizations in Canada because we exist by virtue of an act of federal parliament [link to act’s text: http://www.cmpa-acpm.ca/cmpapd04/docs/about_cmpa/com_by_laws-e.cfm]. We’re a so-called Special Act corporation; so we’re not a regulated insurer, and our articles of incorporation specify what we can and cannot do. We offer services of a medico-legal nature to our members, who are defined as licensed physicians practicing in Canada by the act. We offer this assistance on a discretionary basis, rather than through an insurance contract. It’s not an insurance contract. Our by-laws go on to specify in great detail how members can access our services.
Probably what separates us most from insurance companies is that we use that discretion to find ways to assist our members, rather than looking for reasons to deny assistance. Increasingly over the years, as the number of areas that our members practice evolve and change we find very creative ways to come to their assistance.
Obviously we’re not for profit, which changes our incentives relative to a commercial insurance company. For instance, we are not motivated to settle cases on an economic basis, simply because it would be cheaper than defending one of our members at trial. We exist to protect the professional integrity of our members, so if we believe a case is defensible, we will defend it regardless of costs.
What sorts of liability assistance does the CMPA provide for its members?
Civil liability for medical matters is provided almost without exception. We also assist a range of college matters, since medical license issues and fitness to practice are obviously very important to our members. We also deal with matters related to hospital privileges, in order to ensure that hospitals take decisions about hospital privileges in ways that are consistent with their by-laws, and in accordance with procedural fairness. We also assist our members with administrative tribunals of different kinds, such as human rights tribunals, or public fatality inquests. There are very few areas where CMPA Council has said that we will not exercise our discretion to assist, or that we will limit it.
The by-law is very clear that criminal matters generally are outside the scope of our mandate. Council has decided that we will assist a member defending against allegations of criminal conduct or sexual impropriety, but if the member is convicted in a court of law, our assistance comes to an end. This applies to civil litigation arising from criminal or sexual matters as well – we don’t pay any damages or assist in any settlement.
Defamation is a bit trickier. Our approach is that if the allegedly defamatory statement relates to the member’s professional practice, and if the statement was made through “appropriate” channels then we will assist. If a member is concerned about a colleague, and expresses those concerns to the regulatory authority, or to the hospital chief of staff, we would say that this is an appropriate expression of concern. But if the member wrote a letter to the local paper expressing his concern to the public at large, we would say that this is not in our view an appropriate manner of channelling his concern.
So defamation cases tend to arise between physician colleagues?
No, not entirely. We had a situation in one province where a physician expressed concerns about an oil company and its impact on the local environment and the health of his patients. He had expressed his concerns in an appropriate manner – to a medical officer of health and government officials, so we assisted in that case.
In the event of a trial or settlement, what level of legal costs, expenses, and damages are paid by the CMPA?
Essentially, once we have granted assistance, there is no limited. Again, I think this sets us apart from an insurance company, which would limit any coverage by the amount in the policy – whether that is $100,000 or $2 million, there is a set limit above which the insurance company will not go. Our approach has no built-in limits to legal assistance, or to damages.
How are premiums set at the CMPA?
Fees are set according to actuarial analysis of the risks of practicing in various areas [General surgery, psychiatry, pathology, etc – MJLH]. We don’t underwrite individuals, so we look at people who do similar types of work and pool those risks together to set fees.
Up until the 1980s in fact, every CMPA member paid the same fees. During the medical liability crisis of the 1980s that became untenable. Fees were rapidly escalating and lower-risk physicians felt that this was unfair since they were paying for the higher-risk practice areas. So in the mid-1980s the CMPA adopted fees commensurate with the medico-legal risk. We identified the highest-risk groups – the three high-risk groups being neurosurgeons, obstetricians, and orthopedic surgeons. The lowest risk group are physicians like me, who hold administrative positions who don’t see any patients.
In 2001 we moved to a regional fee structure, which incorporates both the type of practice and the location where the physician is practicing. For fee-setting purposes we have three regions: Québec, Ontario, and the rest of Canada. Risk is highest in Ontario and lowest in the rest of Canada, with Québec situated in the middle. Again this change was member-driven, since many Québec members felt that the fees they paid were not commensurate with their risk, so after consulting with the actuaries, we made the move to regional risk pools. But we don’t want to move any further down the road, towards smaller and smaller risk pools.
With respect to smaller risk pools, why does the CMPA not charge higher premiums to doctors who have experienced previous lawsuits?
Because we’re a mutual defence organization. We want to preserve the notion of mutuality, rather than personal experience-rating. Ideally everyone would pay the same fee, but our membership moved us in the direction of practice-base fees and then region-based fees. But that is as far as the CMPA is prepared to go.
Doesn’t this approach create a moral hazard though, because doctors do not suffer any consequences for medical malpractice?
One can make that argument. Our members are generally satisfied that on those occasions where someone is perceived as using the services of the CMPA unnecessarily frequently, the hospitals or the regulatory authorities respond to the situation. We don’t need to deal with it through our fee structure because the regulatory bodies deal with it through disciplinary hearings or fitness-to-practice hearings.
The reality is that all of us understand that in many cases it’s the luck of the draw. Take obstetricians as an example. One obstetrician might have two shoulder dystocias [when the delivery of a baby is obstructed by difficulty passing the shoulders of the baby from the mother – MJLH] in two years, whereas your colleague might not have any. These are very, very expensive cases, but no one can predict when and where these complications will occur.
Why do doctors fight malpractice lawsuits, given that their premiums will not increase and that the CMPA pays all of their expenses?
There are important personal consequences for physicians that go beyond financial concerns. If a physician loses a medico-legal case, or settles a case out of court, they have to report this to the provincial college and to their hospitals. So it does have consequences. The colleges themselves may initiate investigations on the basis of these reports, and it can affect a physician’s ability to move from one jurisdiction to another, or the physician’s ability to get hospital privileges. It’s also a matter of professional integrity. So it’s not all about the money.
Related to professional integrity, what impact, if any, has the CMPA seen from apology legislation such as Ontario’s Apology Act?
I think it’s too early to say. Canadian jurisdictions were relatively late to enact apology legislation, so the CMPA has been watching this occur in other countries as well, and even in those jurisdictions I don’t think that there is any evidence that it prevents litigation. But I don’t really believe that was the purpose, either. I believe the purpose was to support patient safety, by removing any barrier between physicians being open and transparent with their patients when an adverse event occurred.
Historically, it was said that physicians were unwilling to discuss adverse events because they were afraid of lawsuits. We think that’s a falsehood. We think that when physicians are open and transparent with patients, that leads to the best outcomes for everyone. When an adverse event occurs, it’s often not clear what the role of the physician was, and this may not become clear until weeks or months later. But apologies are quite appropriate no matter what. Apology legislation takes another step, by reassuring health professionals that if they apologize in the process of disclosing the adverse event, that apology cannot be taken as evidence of liability. We have not yet seen a case where this has been tested, nor to do I think that we ever will. Proof of negligence is proof of negligence, not whether you apologized!
It seems from what has been said so far that doctors have fairly little input on how a case proceeds. So when deciding whether to settle or defend a case, what factors guide the CMPA’s decision? How much input do doctors have?
Well, that’s not true. The physicians of course always want to be defended. But what we do is retain experts to comment on the doctor’s care. If the doctor’s care is supported by experts, and if the doctor wants to be defended – because sometimes physicians will say “I don’t want to go through five years of litigation, I want this to be over” – then we will defend them.
But conversely, if the doctor’s care is not supported, and the doctor still wants to be defended, we will use our best efforts to convince the doctor that this is a folly. At the end of the day, litigation in some circumstances would just prolong a situation in which a settlement is warranted. It may require frank discussion between the doctor and counsel, and sometimes we will look for additional experts, if the doctor feels that the original expert was wrong. But at the end of the day, most doctors recognize that the experts are who the courts will listen to, and doctors are satisfied that if we cannot find expert support, then the case is not worth defending.
Do doctors often “go it alone” if the CMPA thinks the case should be settled?
I guess we wouldn’t really know if that happens, since we don’t have any way to systematically gather that information. But certainly it happens at the college level.
A big part of CMPA’s defence work is college complaints against physicians – the CMPA defended roughly three times more college complaints than lawsuits in the last several years. What kinds of issues are brought before the colleges and how does the CMPA’s approach differ here from its approach to medical liability lawsuits?
We think that until recently, the CMPA has handled about half of all college complaints against our members. In the past few years there has been a dramatic increase in the number of college assistance requests. I think that is due to a growing awareness of our members about the importance of contacting the CMPA if a college complaint occurs, rather than an increase in the number of college complaints occurring. So we are probably now assisting 60-70% of the members who are going before the colleges.
Our approach to college complaints is quite different from the way we handle civil litigation. In fact, we don’t normally place those cases in the hands of counsel. In fact most of them are dealt with by one of our physician
medical officers. The medical officers review the complaint with the physician and explain what kind of response the college is expecting, what the time frame and process might be. This is important because often college complaints are black holes for doctors – they get the college complaint and then nothing happens for a year. If the college decides to take disciplinary action, that is when we engage counsel, because it has become a more serious matter.
Do most college complaints go to disciplinary hearings?
No, probably 90% of the complaints are resolved without hearings or requiring any sanction against the doctor.
The CMPA has raised the issue of wait times as a potent source of medical liability. Have lawsuits ever been launched against individual doctors on the basis of wait times?
Wait times are often obliquely referred to in statements of claim, and plaintiffs often allege that they have been waiting too long for various procedures or tests. But it is almost unheard of for wait times to be the only issue in a lawsuit. That said, it’s not unusual to hear allegations that wait times or delays lead to unnecessary suffering or adverse outcomes. The typical case in which wait times are involved is where a patient’s condition deteriorates and the patient alleges that the responsible physician failed to expedite treatment.
We are concerned about the issue of wait times, and we’ve taken a position on the issue from a medical liability perspective. [link https://www.cmpa-acpm.ca/cmpapd04/docs/submissions_papers/com_wait_times_2007-e.cfm] One of the key issues for us is good communication between specialists and family doctors, so that everyone is aware of the patient’s condition, and also the availability of care.
Speaking of communication and coordination, to what extent has the growing emphasis on medical teams impacted the liability landscape?
We think it has the potential to significantly change the game, particularly with the increasing scopes of practice of other health professionals, and the increasing autonomy of other health professionals. We have two key messages in this area. First, that when independent health professionals are working with the same patient, there should be clear lines of responsibility, so that no one falls through coordination gaps between team members. Second, every health professional should have adequate liability protection. It is unacceptable for the deep pockets of the doctors to be fully liable even though the physician is minimally responsible, simply because the doctor is the only professional with any liability protection.
Could you expand on that deep pockets problem? What exactly do you mean?
Well, based on the common law rule of joint and several liability for personal injury, any defendant held liable for the injury can be sued for the full amount, even if that person is only responsible for a fraction of the actual damages. The burden then shifts to that defendant to sue the other defendants in order to redistribute the costs appropriately. Often the CMPA ends up paying for all of the damages, since none of the other health professionals have liability coverage, and therefore they cannot pay their share.
We believe that as a condition for licensing as a health professional, there should be an absolute requirement for that professional to have adequate liability insurance. This will prevent these kinds of problems in the future.
Do you feel that provincial governments and regulatory bodies have been receptive to this argument?
Well, it’s now the law in Ontario. We’ve been making this argument for a number of years, and we’re beginning to see a growing recognition that the problem needs to be resolved. It’s not universally in place everywhere, but it’s a problem that’s beginning to be addressed.
Medical liability lawsuits have been declining over the past decade. What factors does the CMPA believe are behind this?
I wish I knew the answer [laughs]. First of all, it’s not unique to Canada. We have observed the same trend in the United Kingdom, Australia, and the United States. And it’s not unique to medical liability; we’re told that in many forms of professional liability there has been an observable decline. On the medical side, we’d like to think that our efforts and the efforts of others to promote patient safety have contributed to the decline, but that would not explain the decrease in other forms of professional liability, like that for architects. I think the explanation is multi-factorial, and I don’t feel that we know enough about it to say for certain.
It may also be coming to an end. In other jurisdictions the frequency is beginning to rise again. We’ve seen increases in both in the United Kingdom and in Australia, and in some areas of the United States. In Canada, we’ve seen an uptick in the absolute numbers in the last two years, but when you take in to account the growth in our membership, the rate of lawsuits on a per-member basis is flat. The reality today is that a physician today is half as likely to be sued as he or she was ten years ago.
Some commentators, have criticized the CMPA’s approach as “stacking the deck” against plaintiffs by generously funding physicians while their opponents have only their own resources. How would you react to this?
I think there’s perhaps some underlying confusion about the source of funding for the CMPA. We are funded exclusively by our members. Our members pay fees to us and that’s 100% of our funding.
In the past, a small percentage of every clinical fee was nominally assumed to be included to hedge against liability. The reality was that in the medical liability crisis of the 1980s, the medical associations that negotiate fees for medical services were finding it increasingly difficult to build in a fair and equitable amount of money for liability protection into clinical fees. To return to the example of obstetricians, some of them might be performing 200 to 300 deliveries a year, and others might do primarily gynecology and perform only 20 deliveries a year. By building the liability protection in to the fee code, some physicians would get a windfall if they did not experience any adverse events, while others would be left virtually unprotected.
So what happened across the country was a shift to funding medical defence costs entirely through higher fees paid to the CMPA. That shift was premised on two factors. First of all, there is no source of funding for physicians who provide care outside of the public system, so everyone is paid through Medicare. Secondly, individual physicians have relatively little control over the fees they are paid for their services, since the fee codes are negotiated between the provincial medical associations and the provincial government. So the provincial medical associations decided in the mid 1980s that in lieu of receiving increased fees for their clinical work, they would receive an equivalent amount and use this money to reimburse physicians for the money paid in CMPA fees. That money continues to be negotiated every year with provincial governments, and continues to be given in lieu of money that physicians would have otherwise received directly.
So physicians have chosen to divest, or give up, some portion of their clinical earnings in order to cover this important part of their practice costs. There is a single payer for healthcare in Canada, and physicians have chosen to take some of those payments and set them aside.
The CMPA’s report Towards the Right Balance [link: http://www.cmpa-acpm.ca/cmpapd04/docs/submissions_papers/piaa/com_home-e.cfm] outlines a number of “common sense” reforms and “achievable improvements.” What do you think are the most important reforms to the medical liability system in Canada?
One of the areas where we think there are unnecessary circular flows of money is when the government exercises its right to recover its subrogated health care costs from both physicians and hospitals. This flow is circular because arguably whenever the government collects substantial amounts of money via subrogated health care costs, the costs of liability insurance for doctors and hospitals goes up as well, and that is a cost that the government has to pay later on when it sets health care budgets.
But it’s not a benign circular flow. There are transactional costs involved, since often the government hires its own lawyers to advance their subrogated claims. We’ve also had cases where the plaintiffs and the CMPA have agreed on an amount of settlement, but we cannot agree with the government, so the plaintiff does not receive their money for a year or two while the CMPA argues with the government about what costs they will recover.
I think it’s a simple administrative matter, and they can simply agree to stop collecting that money.
In Canada the CMPA defends physicians and the CNPS defends nurses. Are there other mutual defence societies in Canada covering allied health professionals or do AHPs rely on private insurance or coverage through their workplace?
There is the new law in Ontario, but for the most part it’s private insurance. I’ve had discussions with pharmacist’s professional associations and regulatory bodies, and they have several possible sources for liability coverage. Our view is that it doesn’t matter where coverage comes from as long as each health professional is adequately insured.
I am told that some of the smaller health professional groups, such as physician assistants, have trouble getting private coverage since there are often so few of them in this country. This problem is exacerbated since most other health professionals deal with liability coverage at the provincial level. This prevent national risk pooling that could lower costs and combine small risk pools in order to make them attractive to private insurers. And sometimes within provinces there are two or three competing insurance sources, further reducing the size of risk pools. Sadly that’s the Canadian reality right now.
McGill Journal of Law and Health 