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Canada: Taxpayers' money defends doctors with legal problems

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      $3-billion war chest gives doctors advantage in court
      A legal expert says access to high-priced legal counsel for doctors is intimidating enough that many people won't pursue civil suits
       
      Lindsay Kines, Jeff Rud
      Special to Times Colonist

      Sunday, February 17, 2008

      When Debbie Maki decided to sue the physician who sexually assaulted her more than 20 years ago, she had no idea her own tax dollars would be used against her.

      But that's the situation in which the North Delta woman found herself last fall as she wrestled over whether to continue a lawsuit against former physician Mark Walter Stewart of Campbell River.

      Stewart's high-priced defence was funded by the Canadian Medical Protective Association, which bills itself as a "mutual defence organization" for doctors.

      The CMPA denies getting any direct government money, but the truth is that B.C. and the other provinces heavily subsidize the annual fees that doctors pay into the association.

      Those fees have helped the CMPA amass nearly $3 billion that it uses to "defend every case against a doctor that is defensible."

      In the case of Stewart, that included defending a civil suit against a doctor who had already been convicted of multiple sexual assaults.

      The CMPA, however, won't pay any civil damages awarded to a victim for sexual assault by a doctor even if -- as was the case with Maki and other women -- the assault occurred during a medical exam.

      This scenario is seen by many as stacking the deck against victims attempting to seek redress from physicians. And it is particularly galling for victims to discover the CMPA receives regular government money.

      "It's sickening,'' Maki said in an interview.

      The 44-year-old mother of one- and three-year-old children said she doesn't believe doctors should have their defence covered in a civil case if they have already been found guilty of a sexual assault in a criminal trial.

      "I can understand why they may get a [criminal] defence paid for them,'' she said. "But if they're found guilty, they should be out in the cold. They should have to pay everything back.''

      Maki is equally upset that tax dollars help fund the CMPA. In an agreement with the B.C. Ministry of Health renewed last November, the province reimburses doctors for the difference between current CMPA fees and those levied in 1985 up to a maximum of $22 million per year.

      Over the last three years alone, the B.C. government has contributed $53 million to offset increases in CMPA dues.

      B.C. Medical Association president Dr. Geoff Appleton said his association simply acts as administrator for the government's reimbursement program for CMPA dues.

      "Through negotiations some time ago, we did get some government funding to offset some of the costs of [CMPA premiums.] It's one of these things that was in lieu of a fee increase,'' Appleton said. "It's part of our negotiated settlement. It's just administered through the BCMA, that's all. It's a flow-through."

      British Columbians, however, might be surprised to discover that the CMPA covers doctors' expensive legal defence for incidents that extend beyond the bounds of suspected malpractice.

      In the case of Stewart, who was convicted in 2001 of seven counts of sexual assault and two counts of indecent assault of female patients in Campbell River, the CMPA paid for his defence in both criminal and civil cases -- appeals excluded -- and even for his successful bid last year to have his name removed from the national sex offender registry.

      "My biggest concern with respect to sexual assault or sexual misconduct between doctors and patients is that, because the CMPA will use their resources to defend and not pay, it puts plaintiffs in a very difficult situation,'' said Guy Collette, a Vancouver attorney who represented 22 women, including Maki, in a suit against Stewart.

      Unlike other types of insurance cases, where an insurer pays damages in the case of a loss, the defendant has no interest in trying to settle, Collette said.

      "If you're a doctor, and your entire defence is paid, what interest do you have in trying to settle the case?" he said. "Let the CMPA defend it and spend all the money. It doesn't cost you any money to do that. So the doctor doesn't have any incentive to try to settle.''

      Maki and the other women launched a civil suit against Stewart, his former partners and the B.C. College of Physicians and Surgeons in 2002.

      Last September, the women settled with the college before the case went to court. The women, with the exception of Maki, also dropped the case against Stewart and his former partners.

      Within days, however, Maki also decided to abandon the case. It was simply too risky financially for her family.

      Had she lost, she could have been on the hook for Stewart's legal costs as well as those of his former partners and the clinic at which he worked. And even if she'd won, the CMPA, as per policy, wouldn't have paid any settlement.

      "I feel awful about how the CMPA runs things,'' Maki said. "Regular doctors must be upset that their millions of dollars go to protecting guys like Stewart.

      "This has been a long, hard battle for me, and it just sickens me to think that I had to give up. But there was no way I could go through with it. There was no way."

      Maki said she was told by a number of lawyers that "it's you against the world, and you might as well forget it."

      "What they're doing is wrong,'' she said of the CMPA. "And they just keep doing it.''

      CMPA chief executive officer Dr. John Gray makes no apologies for the way the association defends its members.

      "The general approach is that members are eligible for our assistance for any [legal] work that arises from their practice -- the key [being] does it arise from the practice?" Gray said in an interview.

      "Specifically, with respect to allegations of sexual impropriety, our position is that a member is entitled to defend him or herself against any allegations.

      "But if those allegations are proven, then the association does not then view sexual impropriety with a patient to be part of medical practice, and so we aren't responsible for any awards or damages.''

      Gray said he doesn't see any imbalance in the fact the CMPA will defend a doctor against a civil suit for sexual assault but won't pay damages if the doctor loses that case.

      "First of all, we're not an insurance company. We're a mutual defence association,'' he said. "And one could equally ask: 'Is it the responsibility of the colleagues of a doctor to pay for a doctor's personal misconduct that arises from something that all of us agree is not part of the practice of medicine?' "

      Therefore the CMPA has taken a "hybrid approach,'' Gray said.

      "We say that every doctor is entitled to the right to defend him or herself, but if a court makes a finding of sexual impropriety, that's personal misconduct and is not the role of the mutual defence association.''

      Gray said that no other commercial professional liability insurance that he is aware of provides insurance for sexual misconduct.

      "So we're not behaving any differently than everyone else in this market.

      "Believe me, I'm quite aware of the devastation that sexual impropriety by a physician can have on patients, and I'm not condoning it,'' he said.

      "But I'm simply saying that's a doctor's personal responsibility.''

      Collette, the lawyer, said the CMPA is one reason not many civil cases against physicians go to trial.

      "That's really the difficult thing -- the CMPA defending with sophisticated counsel that are well-funded by this organization against an ordinary citizen who would have to fight against that, and if they win, may not get any judgment."

      But the BCMA's Appleton said the vast majority of law-abiding physicians who pay CMPA premiums should not be penalized for the actions of a wayward doctor by having to fund a civil settlement.

      Those CMPA fees can be considerable and vary wildly depending on what part of the country a doctor practises in, as well as his or her specialty. For example, a B.C. doctor who practises primarily in family medicine faces annual premiums of $1,536 in 2008, while that fee soars to $3,216 in Ontario. Obstetricians face the highest dues, with those in B.C. paying $19,524 a year and those in Ontario shelling out $50,508.

      "I don't know that the physicians of the country would be very happy having their dues and expenses of CMPA paid in [a settlement] when somebody's committed a criminal offence,'' Appleton said.

      "The doctor is still liable, though. It doesn't give the patient access to unlimited money through the big coffers of the CMPA. The doctor's still nailed."

      However Maki believes it would have been difficult to extract any money from Stewart even if she had won the suit.

      The judge who struck Stewart's name from the sex offender registry noted that he had used up all his savings on legal costs, outside of what the CMPA covered.

      © Times Colonist (Victoria) 2008

       
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      Doctors in trouble
      How taxpayers' money rescues physicians facing legal problems
       
      Jeff Rud, Lindsay Kines
      Times Colonist

      Sunday, February 17, 2008

      The Canadian Medical Protective Association describes itself as a "mutual defence" organization for 71,000 doctors -- 95 per cent of all those licensed to practise in Canada.
      CREDIT: Rob Struthers, Times Colonist
      The Canadian Medical Protective Association describes itself as a "mutual defence" organization for 71,000 doctors -- 95 per cent of all those licensed to practise in Canada.

      Taxpayers in B.C. helped a former Campbell River doctor convicted of assaulting his patients get his name lifted from the national sex offender registry last year.

      The Canadian Medical Protective Association, which is subsidized with public money, covered the legal costs for Mark Walter Stewart's bid to get off the registry.

      The CMPA describes itself as a "mutual defence" organization for 71,000 doctors -- 95 per cent of all those licensed to practise in Canada. It covers the costs of defending doctors in an array of cases and, in some instances, pays damages.

      The doctors contribute annual fees to the CMPA, which has reserves of nearly $3 billion. Provincial governments reimburse a portion of the doctors' fees as part of negotiated contracts with provincial medical associations.

      The B.C. government funnelled nearly $53 million through the B.C. Medical Association to the CMPA over the last three years. The government delivers the cash without any strings attached, despite occasional complaints that public money should not be used to defend doctors accused of criminal wrongdoing or over-billing government.

      One of Stewart's victims expressed outrage that her tax dollars helped pay for his defence in both the criminal and civil trials and his bid to get off the registry.

      "It makes my blood boil over,'' said Debbie Maki, 44, of North Delta.

      Maki said "the province turns its back on me to defend a sex offender.''

      "That I don't understand."

      Stewart was found guilty in 2001 on nine counts of sexually and indecently assaulting his patients during breast and vaginal examinations and received a four-year prison sentence.

      He fought to get off the sex offender registry on the grounds that it amounted to a "life sentence," because it required him to report where he is living at all times and notify police of any travel plans.

      "The main thing is I can never put the convictions behind me," he told a forensic psychiatrist, according to a risk assessment dated March 1, 2007. "If I'm on the registry, every time I want to go somewhere, it's like a slap in the face."

      B.C. Supreme Court Justice Catherine Bruce ruled in Stewart's favour, concluding there is little risk he will assault anyone else.

      Vancouver lawyer Terrence Robertson, who represented Stewart, said he was not privy to the CMPA's decision to cover Stewart's legal costs.

      "I just know that he asked for assistance with respect to it and the association agreed," said Robertson, who works for Harper Grey, the law firm that handles CMPA business in B.C. "So we brought the application to exempt him and were successful."

      CMPA chief executive officer John Gray said he could not comment on a specific case, but speaking generally, he said requests for legal funding to help a doctor have his name removed from a sex offenders registry would have to be considered on a case-by-case basis.

      "That's an unusual request and there's no general answer for that," Gray said. "We try to look at every member's request for assistance carefully and consider each one on its merits."

      Stewart declined comment.

      In his 1996 review of the CMPA, former Ontario chief justice Charles Dubin supported governments continuing to subsidize the association since it's in the public's interest to have a well-stocked fund to pay damages in a case of proven harm. But Dubin also recommended governments stop subsidizing doctors' criminal defences.

      "Although it is in the public interest that any person charged with a criminal offence be properly represented, it seems difficult to justify public expenditures to place doctors on a different footing from other accused persons," he said.

      Provincial governments, however, never altered the practice following Dubin's report, the CMPA confirmed.

      "As a result of the information and transparency of operations we've provided to governments over the past several years, no government has changed its reimbursement program, and none has expressed to the CMPA any intent to do so," CMPA spokeswoman Barbara Wright said.

      When Debbie Maki decided to sue the physician who sexually assaulted her more than 20 years ago, she had no idea her own tax dollars would be used against her.

      But that's the situation in which the North Delta woman found herself last fall as she wrestled over whether to continue a lawsuit against former physician Mark Walter Stewart of Campbell River.

      Stewart's high-priced defence was funded by the Canadian Medical Protective Association, which bills itself as a "mutual defence organization" for doctors.

      The CMPA denies getting any direct government money, but the truth is that B.C. and the other provinces heavily subsidize the annual fees that doctors pay into the association.

      Those fees have helped the CMPA amass nearly $3 billion that it uses to "defend every case against a doctor that is defensible."

      In the case of Stewart, that included defending a civil suit against a doctor who had already been convicted of multiple sexual assaults.

      The CMPA, however, won't pay any civil damages awarded to a victim for sexual assault by a doctor even if -- as was the case with Maki and other women -- the assault occurred during a medical exam.

      This scenario is seen by many as stacking the deck against victims attempting to seek redress from physicians. And it is particularly galling for victims to discover the CMPA receives regular government money.

      "It's sickening,'' Maki said in an interview.

      The 44-year-old mother of one- and three-year-old children said she doesn't believe doctors should have their defence covered in a civil case if they have already been found guilty of a sexual assault in a criminal trial.

      "I can understand why they may get a [criminal] defence paid for them,'' she said. "But if they're found guilty, they should be out in the cold. They should have to pay everything back.''

      Maki is equally upset that tax dollars help fund the CMPA. In an agreement with the B.C. Ministry of Health renewed last November, the province reimburses doctors for the difference between current CMPA fees and those levied in 1985 up to a maximum of $22 million per year.

      Over the last three years alone, the B.C. government has contributed $53 million to offset increases in CMPA dues.

      B.C. Medical Association president Dr. Geoff Appleton said his association simply acts as administrator for the government's reimbursement program for CMPA dues.

      "Through negotiations some time ago, we did get some government funding to offset some of the costs of [CMPA premiums.] It's one of these things that was in lieu of a fee increase,'' Appleton said. "It's part of our negotiated settlement. It's just administered through the BCMA, that's all. It's a flow-through."

      British Columbians, however, might be surprised to discover that the CMPA covers doctors' expensive legal defence for incidents that extend beyond the bounds of suspected malpractice.

      In the case of Stewart, who was convicted in 2001 of seven counts of sexual assault and two counts of indecent assault of female patients in Campbell River, the CMPA paid for his defence in both criminal and civil cases -- appeals excluded -- and even for his successful bid last year to have his name removed from the national sex offender registry.

      "My biggest concern with respect to sexual assault or sexual misconduct between doctors and patients is that, because the CMPA will use their resources to defend and not pay, it puts plaintiffs in a very difficult situation,'' said Guy Collette, a Vancouver attorney who represented 22 women, including Maki, in a suit against Stewart.

      Unlike other types of insurance cases, where an insurer pays damages in the case of a loss, the defendant has no interest in trying to settle, Collette said.

      "If you're a doctor, and your entire defence is paid, what interest do you have in trying to settle the case?" he said. "Let the CMPA defend it and spend all the money. It doesn't cost you any money to do that. So the doctor doesn't have any incentive to try to settle.''

      Maki and the other women launched a civil suit against Stewart, his former partners and the B.C. College of Physicians and Surgeons in 2002.

      Last September, the women settled with the college before the case went to court. The women, with the exception of Maki, also dropped the case against Stewart and his former partners.

      Within days, however, Maki also decided to abandon the case. It was simply too risky financially for her family.

      Had she lost, she could have been on the hook for Stewart's legal costs as well as those of his former partners and the clinic at which he worked. And even if she'd won, the CMPA, as per policy, wouldn't have paid any settlement.

      "I feel awful about how the CMPA runs things,'' Maki said. "Regular doctors must be upset that their millions of dollars go to protecting guys like Stewart.

      "This has been a long, hard battle for me, and it just sickens me to think that I had to give up. But there was no way I could go through with it. There was no way."

      Maki said she was told by a number of lawyers that "it's you against the world, and you might as well forget it."

      "What they're doing is wrong,'' she said of the CMPA. "And they just keep doing it.''

      CMPA chief executive officer Dr. John Gray makes no apologies for the way the association defends its members.

      "The general approach is that members are eligible for our assistance for any [legal] work that arises from their practice -- the key [being] does it arise from the practice?" Gray said in an interview.

      "Specifically, with respect to allegations of sexual impropriety, our position is that a member is entitled to defend him or herself against any allegations.

      "But if those allegations are proven, then the association does not then view sexual impropriety with a patient to be part of medical practice, and so we aren't responsible for any awards or damages.''

      Gray said he doesn't see any imbalance in the fact the CMPA will defend a doctor against a civil suit for sexual assault but won't pay damages if the doctor loses that case.

      "First of all, we're not an insurance company. We're a mutual defence association,'' he said. "And one could equally ask: 'Is it the responsibility of the colleagues of a doctor to pay for a doctor's personal misconduct that arises from something that all of us agree is not part of the practice of medicine?' "

      Therefore the CMPA has taken a "hybrid approach,'' Gray said.

      "We say that every doctor is entitled to the right to defend him or herself, but if a court makes a finding of sexual impropriety, that's personal misconduct and is not the role of the mutual defence association.''

      Gray said that no other commercial professional liability insurance that he is aware of provides insurance for sexual misconduct.

      "So we're not behaving any differently than everyone else in this market.

      "Believe me, I'm quite aware of the devastation that sexual impropriety by a physician can have on patients, and I'm not condoning it,'' he said.

      "But I'm simply saying that's a doctor's personal responsibility.''

      Collette, the lawyer, said the CMPA is one reason not many civil cases against physicians go to trial.

      "That's really the difficult thing -- the CMPA defending with sophisticated counsel that are well-funded by this organization against an ordinary citizen who would have to fight against that, and if they win, may not get any judgment."

      But the BCMA's Appleton said the vast majority of law-abiding physicians who pay CMPA premiums should not be penalized for the actions of a wayward doctor by having to fund a civil settlement.

      Those CMPA fees can be considerable and vary wildly depending on what part of the country a doctor practises in, as well as his or her specialty. For example, a B.C. doctor who practises primarily in family medicine faces annual premiums of $1,536 in 2008, while that fee soars to $3,216 in Ontario. Obstetricians face the highest dues, with those in B.C. paying $19,524 a year and those in Ontario shelling out $50,508.

      "I don't know that the physicians of the country would be very happy having their dues and expenses of CMPA paid in [a settlement] when somebody's committed a criminal offence,'' Appleton said.

      "The doctor is still liable, though. It doesn't give the patient access to unlimited money through the big coffers of the CMPA. The doctor's still nailed."

      However Maki believes it would have been difficult to extract any money from Stewart even if she had won the suit.

      The judge who struck Stewart's name from the sex offender registry noted that he had used up all his savings on legal costs, outside of what the CMPA covered.

      The Canadian Medical Protective Association

      What is the CMPA?

      The Canadian Medical Protective Association describes itself as a "mutual defence organization" for medical doctors. It was founded in 1901 and incorporated by an act of Canadian Parliament in 1913. The association's 71,000 members represent about 95 per cent of all doctors licensed to practice in Canada.

      What does the CMPA do?

      A non-profit organization, the CMPA says its goal is to protect the professional integrity of doctors by providing high-quality legal defence. "We will vigorously defend a member as long as there is good expert support to do so," the association says. "CMPA members are eligible for protection independent of their history or track record."

      Though careful not to refer to itself as an insurance agency, the CMPA does pay damages to patients in some, but not all, cases. For instance, in the case of someone sexually abused by a doctor, the CMPA will defend the doctor, but won't pay any civil damages since it says the offence is not part of the medical practice.

      Where does the CMPA get its money?

      Doctors pay annual membership fees into a reserve fund that handles the cost of future claims. The fees vary depending on a doctor's location and specialty. There is nearly $3 billion in the fund. B.C. and other provincial governments have agreed, in negotiations with medical associations, to reimburse a portion of the doctors' annual CMPA fees. B.C., for instance, pays about $20 million a year to the B.C. Medical Association which passes the money along to the CMPA

      Sources: CMPA and B.C. government

      © Times Colonist (Victoria) 2008
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