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Archives for July 2018

Scotiabank Charity Challenge – Team CPABC

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Andrea Donaldson of Pacific Medical Law participated in the Scotiabank Charity Challenge on behalf of the Cerebral Palsy Association of BC at the Vancouver Half Marathon and 5k on June 24. Andrea (centre) is photographed here with CPABC Executive Director Feri Dehdar (right), and communications intern Ashley Moliere (left). Through fundraising efforts of everyone involved, Team CPABC was able to raise $10,000 for the Association. Every dollar raised goes directly to programs and services for people living with cerebral palsy and other disabilities throughout the province.

Cerebral palsy (CP) is a term used to describe a group of non-progressive, but changing, disorders affecting body movement and muscle coordination. The condition affects 1 out of every 500 people in Canada. Although there is no cure of CP, there are many types of treatment, therapies, and supports that can lessen the effects of CP and help people living with CP lead independent lives.

About the Cerebral Palsy Association of BC

The Cerebral Palsy Association of BC was started in 1954 by a group of parents who wanted to help their children living with CP reach their maximum potential within society. Today, the Association is an independent charity organization governed by a volunteer Board of Directors, with the mission of raising awareness of CP in the community, assisting those with CP to reach their maximum potential, and working with people living with CP to realize their place as equals in a diverse society. The Association accomplishes their mission through advocacy, encouraging networking, educating members of the public about cerebral palsy, governing relations activities, and implementing programs for individuals with cerebral palsy. The Cerebral Palsy Association’s vision is to become the recognized leader in providing information, support, and guidance to children, adults, and families living with CP in British Columbia.

Through fundraising efforts such as the Scotiabank Charity Challenge, the Cerebral Palsy Association is able to offer advocacy, counselling, and collaboration with other agencies, as well as programs to assist people living with CP and other disabilities. The Association offers pre-employment training, education bursaries, and the Campership Program, which financially assists individuals of all ages to attend a special needs camp of their choice in BC. The Association also offers recreational programs such as adapted dance, yoga, and art, as well as legal, funding, and referral resources.

The Association’s intends to remain inclusive by continuing to maintain free, high quality programs and services, with the goal of raising social awareness and helping those with cerebral palsy and other disabilities live a life without limits.

The question of medical negligence in British Columbia’s Cambridge affair

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As described in part one of this series, Drs. Sean and Rosemarie Cambridge, two foreign-trained physicians, provided medical care to hundreds of patients in Chilliwack, B.C., from 2011 to 2017, under a provisional medical licence issued by the College of Physicians and Surgeons of British Columbia.

In the fall of 2017, the Cambridge physicians’ medical licences were cancelled on the basis that they had failed to meet the requirements for continued registration and licensure. Specifically, they had failed to pass the first of two required examinations designed to evaluate the physicians’ skills and medical knowledge, notwithstanding several failed attempts and several deadline extensions required for personal reasons.

Cancellation of Licenses

The cancellation of the Cambridge physicians’ medical licences naturally leads many patients to question the care they received from these doctors, and whether any medical problems they suffered were caused by substandard care, or could have been avoided with appropriate treatment.

In considering a potential medical negligence claim, it is important to recognize that the Cambridge physicians do not get the benefit of being held to a lower standard of care on the basis that they were still in the process of qualifying. The standard of care expected of them is the same as the standard of care expected of any physician, which is that he or she use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases (Wilson v. Swanson [1956] S.C.R. 804; Robinson v. Sydenham District Hospital Corp. [2000] O.J.

Susanne Raab

No. 703).

If a physician holds him or herself out as a family physician, he or she is held to the same standard of care as all other family physicians, regardless of whether the licensure is provisional or full. This aspect of the law makes sense as it accords with the reasonable expectations of patients who expect any physician licensed to provide medical services in British Columbia to be competent to provide a safe level of care.

Potential Liability of the Physicians

It is, however, important to appreciate that the fact that these physicians did not satisfy the examination requirements is not evidence that they fell below the required standard of care in their treatment of any individual patient. In considering potential liability on the part of these physicians, it is, in fact, not even sufficient to prove that they fell below the standard of care. In order to succeed in a medical malpractice case, in addition to establishing a duty of care and breach of the standard of care, a plaintiff must prove, usually through expert evidence, that a specific breach of the standard of care was the legal and factual cause of the plaintiff’s injury or loss (Ter Neuzen v. Korn [1995] 3 S.C.R. 674).

Even if multiple breaches in the standard of care are proven, the most challenging part of any medical negligence case is establishing that one or more of these breaches of the standard of care caused or contributed to the injury or loss. This is most often where cases fail.

Proving Medical Malpractice

Proving causation in medical malpractices cases can be challenging because typically the plaintiff has pre-existing injuries or illnesses (the impetus for seeking the impugned medical treatment in the first place) and the precise mechanism of the injury is often unknown or alternatively explained by multiple contributing factors.

Further, advances in science can serve to muddy the waters rather than connect the dots between the breach of the standard of care and the injury or loss by adding to the proliferation of “known unknowns” or potential non-negligent causes of the injury or loss.

Indeed the difficulties in proving causation in medical malpractice cases is borne out by their dismal success rate. The statistics reveal that since 1996, the success rate of plaintiffs in medical malpractice trials has never exceeded 30 per cent.

The most recent annual report of the Canadian Medical Protective Association reveals that a mere 16 per cent of medical malpractice trials in Canada in 2016 were decided in the plaintiff’s favour.

While the statistics for settlements are somewhat more favourable to plaintiffs, they still fall in the minority.

For this reason, a cautious approach, informed by a thorough and comprehensive assessment of the case with the benefit of expert opinion, is required before any medical negligence case is commenced against a physician, even a physician whom the college has deemed to be not qualified to practise medicine.

This piece was originally posted in The Lawyers Daily. You can also read the PDF from our Publications page. 

B.C. College of Physicians and Surgeons protects public by delisting uncertified doctors

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From 2011 to 2017, Drs. Sean and Rosemarie Cambridge, two foreign-trained physicians, provided medical care to hundreds of patients in Chilliwack, B.C., under a provisional medical licence issued by the College of Physicians and Surgeons of B.C. During this period of time, the government paid the Cambridge physicians millions of dollars in fees, according to B.C.’s Medical Service Plan (MSP) billing records. In the fall of 2017, the Cambridge physicians’ medical licences were cancelled on the basis that they had failed to meet the requirements for continued registration and licensure.

Specifically, they had failed to pass the first of two required examinations designed to evaluate the physicians’ skills and medical knowledge, notwithstanding several attempts and several deadline extensions required for personal reasons. As a consequence, the Cambridge physicians ceased to practise medicine, and hundreds of patients in an already underserviced area were left without a family physician.

The circumstances of this case have been widely publicized in the media which has generated both concern about the extent to which the College of Physicians and Surgeons of British Columbia (the college) is discharging its mandate to protect the public interest, as well as concern among the Cambridge physicians’ former patients about the safety of the medical care they received.

Physicians are not qualified

How could it be that a physician is permitted to provide medical care in B.C. to so many patients for such a long period of time, only for the college to subsequently find the physician to be not qualified to practise medicine?

By way of background, the college grants provisional licences to foreign trained physicians who wish to practise medicine in British Columbia, provided they meet basic eligibility requirements.

These physicians are required to have a sponsor — a health authority or university faculty of medicine, and a supervisor — an individual physician approved by the college who must provide regular reports attesting to the competency and professionalism of the physician holding the provisional licence.

The provisional licensee must then meet specific requirements including the successful completion of two examinations; the first of which must be completed within the first three years. General monitoring and oversight of this process is done by the registration committee of the college, while more direct supervision of the physician is done by the physician supervisor.

HPRB Concerns

The registration committee’s monitoring and oversight of this program has recently come under criticism by the Health Professions Review Board (HPRB) in light of the Cambridge affair as well as other similar matters.

The HPRB has raised concerns about how the registration committee is adequately serving the public interest. The HPRB specifically noted that there is a fundamental disconnect in allowing foreign trained physicians to be registered and practise medicine in British Columbia, sometimes for many years, with large patient loads, and without passing requisite exams, only to conclude at the 11th hour that the physician is not qualified to practise medicine based on the failure to pass the requisite examinations within the stipulated time frame.

The HPRB described this disconnect as deeply troubling, expressing concern for both the safety of the public and unfairness to the physician.

Patients in British Columbia have benefited greatly by the many foreign trained physicians who have initially been granted provisional licences, successfully met the requirements of full licensure and now call British Columbia home. To assess whether the college is fulfilling its mandate to protect the public safety by reference solely to the Cambridge doctors would be unfair and unduly myopic, although it is acknowledged that the HPRB’s comments were informed, at least in part, by broader experience with this program.

Further, the failure of the Cambridge physicians to satisfy the requirements of continued licensure is not, on its own, evidence of any particular failing on the part of either the Cambridge doctors, or the college.

Other Concerns

In a recent survey conducted on recruitment and retention of family physicians, physician burnout was a major concern, with lack of collegial team-based environments and billing and administration challenges identified as primary contributors.

Imposed on top of these challenges, a myriad of unforeseen circumstances, both personal and professional, can arise and conspire against successful completion of the required examinations by any individual candidate.

The length of time, however, that these physicians were permitted to provide medical services to patients without having demonstrated the minimum level of skill and medical knowledge is fair criticism and highlights the need for greater support and monitoring of foreign trained physicians working toward full licensure.

This is important both for the benefit of the physician, as well as the safety of the public. The public has a reasonable expectation that physicians who have been licensed to practice medicine in British Columbia have demonstrated the level of skill and competence required to protect public safety, and the college has the mandate to ensure this occurs.

This article is the first of a two-part series. You can read part two here.

This piece was originally posted in The Lawyers Daily. You can also read the PDF from our Publications page. 

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