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Medical Malpractice

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. 

Medico-legal review suggests that physicians miss the signs of stroke

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A recent review of cases conducted by the Canadian Medical Protective Association, an organization that defends physicians in Canada, has found that most medical malpractice cases involving stroke had issues with the diagnosis. This means that sometimes doctors are missing the signs of stroke at initial presentation thereby depriving patients of necessary prompt treatment. In the cases reviewed, more than 25% of patients died and another 40% were left with a significant disability.

In the reviewed cases, the common stroke symptoms were headache, dizziness, nausea and vomiting. Delayed presentation with longer symptom duration spanning days and sometimes weeks was also seen. We can take it from the CMPA synopsis that cases where there was atypical presentation of stroke were generally easier to defend, especially where there was adequate neurological assessment and where appropriate discharge instructions were provided to a patient.

  • Malpractice cases that were more successful included situations where physicians
  • Failed to recognize the seriousness of the patient’s condition with red flags such as a new or severe headache, or focal neurological signs,
  • Did not perform a full physical examination including full vital signs, orientation, gait, speech, finger-to-nose testing, and visual field assessment, examination of the cranial nerves and motor and sensory function in all four extremities,
  • Developed an inadequate differential diagnosis,
  • Failed to consider the possibility of stroke in patients who have obvious risk factors such as smoking, obesity and hypertension,
  • Anchored on a specific diagnosis such as migraine or psychiatric disorder without considering the possibility of stroke.

Research suggests that up to 10% of strokes are not recognized at initial presentation. Research also shows that earlier diagnosis and treatment of stroke can improve outcomes. If you or your loved one suffered an injury as a result of a stroke and you were seen at the hospital or at a medical clinic and you believe that the diagnosis was potentially missed or delayed, you may be entitled to compensation for the injuries. At Pacific Medical Law we often hear from patients who have experienced a misdiagnosis or delayed diagnosis of stroke that left them with a permanent disability. Although it is not possible to identify negligence in every case we review, we have been successful at helping clients obtain much-needed compensation for the injuries that they suffered as a result of a missed or delayed diagnosis of stroke.

You can read more about the CMPA case review findings here: https://www.cmpa-acpm.ca/-/stroke-can-you-recognize-the-signs-

What is my misery worth? Compensation for Pain and Suffering in Canada

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More than 90% of the callers to our office are motivated by the fact that they have had to endure a great deal of pain and suffering as a result of what they believe was medical negligence. Within minutes of our conversation however, virtually all of those callers are disappointed to learn that in Canada, even with catastrophic injuries, the maximum amount that our courts will award for their misery is considerably less than they expect. So why are the awards for pain and suffering so low?

These sorts of awards are referred to as nonpecuniary damages[1] and it is no accident that they are low in Canada; it is in fact the result of deliberate decisions made by the Supreme Court of Canada. In a trilogy of cases in 1978[2], the Court addressed the issue of compensation for pain, disability and loss of quality and enjoyment of life, grappling with the reality that no amount of money can return a plaintiff to their previous state of good health and that it is difficult to come up with an objective method to measure the impact of a person’s loss. The problem that faced the Court was that the basic legal premise for awarding compensation for the damages was to restore the harmed person to the position they would have been in prior to the negligence of the defendant. The difficulty in awarding damages for nonpecuniary losses is that those losses are both difficult to measure and, often, impossible to adequately compensate. The Court held that extremely high awards for general damages would place an undue burden on society in terms of increasing insurance premiums and the social costs that can go along with that. As a result, the Supreme Court set a maximum of $100,000 for nonpecuniary damages. That number was tied to inflation so the maximum is now about $365,000, which is only available for catastrophic injuries, for example if a healthy and active person becomes paraplegic or quadriplegic, or suffers severe brain damage due to negligence. As a result, while it is not unusual for Pacific Medical Law to achieve settlements for our clients of several million dollars, these awards are primarily to compensate them for their lifelong cost of care, as well as loss of income arising from this injuries.

The Court came to their conclusion as a matter of public policy and noted that the primary concern when awarding compensation is to assure that the injured party has adequate care in the future. Given that such costs as the cost for care or income loss were not capped, the Court was concerned about the social burden of large non-pecuniary awards, recognizing that no amount of money can give back what was lost:

“The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. …

… There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”

So then, why are our expectations so far out of line? There really is no mystery here; almost all Canadians are exposed to a flood of American news stories many of which include reference to multi-million dollar awards for what seem to be the most innocuous degrees of pain and suffering. For instance, while our maximum for nonpecuniary damages is $365,000 today, in 2011, New York’s appellate courts awarded amounts of at least 10 times that amount (US$3,500,000) for pain and suffering in 10 cases[3]. But, even more interesting is the fact that a number of American states are enacting legislation to change all of that by putting limits on awards for pain and suffering. For example, New Hampshire has a limit of US$875,000 while the limit is US$350,000 in Maryland. In fact, Ohio, Idaho and California have capped pain and suffering damages at US$250,000[4]. All of which begs the question; was the Supreme Court of Canada actually ahead of its time?

[1] Non-pecuniary damages are damages, commonly called “pain and suffering” and also referred to “loss of enjoyment of life” or “general damages”, are an assessment of how much money is suitable to compensate for losses that cannot be more accurately calculated such as income or medical expenses.

[2] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, the claimant was a 21 year-old young man who was rendered quadriplegic as a result of a traffic accident.

Arnold v. Teno, [1978] 2 S.C.R. 287, the plaintiff was a 4½ year-old girl who suffered severe brain injuries when she was hit by a car while she was enjoying an ice cream cone, new-bought from a curb-side vendor truck.

Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267, the plaintiff was 18 year-old lad who was rendered a quadriplegic from an accident during a physical education class.

[3] New York Injury Cases Blog, <http://www.newyorkinjurycasesblog.com/2012/01/articles/amputation-injuries/review-of-the-10-largest-pain-and-suffering-awards-approved-by-new-yorks-appellate-courts-in-2011>

[4] http://www.nolo.com/legal-encyclopedia/state-state-medical-malpractice-damages-caps.html

Four Reasons Why Awards are Less in Canada than the USA

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A Canadian courtroom never looks like the American television courtroom. Heated courtroom battles where lawyers dressed in business suits yell at each other using theatrical outbursts to persuade the jury and breathless investigators run into the courtroom at the 11th hour with a newly discovered piece of evidence, culminating in the court ordering a multi-million dollar medical malpractice award for the plaintiff – that doesn’t happen in Canada. Of course some of this excitement is purely tv-land drama, but some of it can be explained by the differences in our legal systems.

While there are many differences between the Canadian and American legal systems, a few of these differences contribute directly to the lower compensation a plaintiff can expect to receive for medical malpractice cases in Canada. This is true even if the negligence is caused by doctors’ mistakes or nurses’ mistakes. Here are some of those differences:

  1. Lower awards for pain and suffering in Canada – In 1978 the Supreme Court of Canada put an inflation-adjusted cap on how much a plaintiff can be compensated for the pain and suffering caused by a negligent defendant. In 2015, the most compensation that can be awarded for pain and suffering in Canada, no matter how catastrophic the injury, is about $350,000. Compare that to New York State alone where in 2011, 10 cases were awarded more than $3,500,000 for pain and suffering. Many US states are starting to put limits on claims for pain and suffering, and some of those limits are even lower than the Canadian cap. Nonetheless, there continues to be large awards available in a number of US jurisdictions.
  2. Socialized medicine lowers plaintiffs’ future costs – Plaintiffs can be awarded compensation for health care costs they will have to pay for themselves in the future. In Canada, defendants do not pay the plaintiff for provincially-funded health care, such as hospital in-patient care or physician appointments. In the United States, since an injured plaintiff may have to pay for future hospitalizations out of their own pocket, defendants can be required to compensate for those costs as well – this can amount to tens of millions of dollars.
  3. Jury awards are smaller in Canada – When judges decide how much a successful plaintiff should be awarded they must explain their decision in detailed written reasons. They are bound by the evidence presented and by decisions made in previous cases. Juries, on the other hand, do not write reasons to explain their findings. A sympathetic jury can award extremely high awards. Canadian juries tend to be much more conservative than their US counterparts, in part because the money to pay the awards often comes from tax funded programs such as ICBC, or hospitals. Large awards are viewed by some Canadian juries as coming out of their pockets as taxpayers. In addition, Canadian jury awards can be appealed if they are inordinately high and fall well outside the range of damages a judge would award.
  4. Punitive damages are less common in Canada – Our tort law system is aimed at compensating victims of negligence, not punishing the defendants. The compensation is intended to put the plaintiff back in the condition they would have been in if the negligence had not occurred – to the extent that is possible. In Canada, punitive damages are much less common than they are in the USA – in fact in medical malpractice lawsuits punitive damages are exceedingly rare.

People who have been injured by the negligence of a doctor, nurse or other health care professional can expect to be fairly compensated in Canada, and although the compensation awarded here is more modest than in the US, it can still provide some measure of comfort and assistance as people try to move forward with their lives after an injury caused by medical malpractice.

5 Common Myths about Medical Malpractice Lawsuits

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I began practicing medical malpractice law well over a decade ago, and over the years I have spoken with hundreds of people about potential lawsuits against doctors.

During this time, I have consistently encountered the following misconceptions about medical malpractice:

Myth #1 – Doctors are too powerful to sue. This is one of the most prevalent myths. While it is true that successfully suing a doctor is difficult, it can be done.

Here are the facts. Almost all of the doctors in Canada belong to the Canadian Medical Protective Association (the “CMPA”), a very sophisticated and well-resourced organization. The CMPA’s primary function is the protection of its members’ professional integrity. There are currently 86,000 doctors who are members of the CMPA, and it has financial assets of over $2.5 Billion. If a lawsuit is commenced against one of its members, the CMPA pays for the doctor’s defence costs (i.e. lawyer’s fees, expert’s fees and other expenses) as well as any settlement or judgment that results from a lawsuit.

In order to succeed with a medical malpractice lawsuit, it is critical that you retain lawyers experienced with medical malpractice lawsuits who have the resources and expertise necessary to prove your case. Starting a lawsuit with the hope that the physician will simply settle the claim to make it go away is foolhardy.

Myth #2 – Doctors all stick together. There is some truth to this. Many physicians are simply not prepared to testify against other physicians, especially within certain specialties or within certain communities.

This challenge can be overcome, however, by retaining experienced medical malpractice lawyers who are well respected in the field and have access to credible and objective experts who are prepared to testify against other doctors. Such experts are absolutely essential in order to be successful in a medical malpractice case. This is one of the most valuable resources an experienced medical malpractice lawyer can provide.

Myth #3 – Damages for pain and suffering are in the millions. This is a misconception that arises primarily from cases south of the border. In Canada, the compensation available to an injured plaintiff for pain and suffering, often referred to as “loss of enjoyment of life”, has been significantly limited by the Supreme Court of Canada. In 1978, the Supreme Court of Canada considered this issue in a series of cases, often referred to as the “trilogy”, and held that the maximum amount of money an injured plaintiff could receive for “pain and suffering” was $100,000. That amount has gradually increased over time to keep up with inflation, and is currently at approximately $350,000.

It is important to understand that this limit does not apply to other categories of damages, such as loss of income earning capacity and cost of care. These categories are not limited, and in the cases we prosecute, frequently result in awards in the millions.

Myth #4 – I have nothing to lose by starting a lawsuit. This is simply not true. The CMPA’s primary function is the protection of its members’ professional integrity. It vigorously defends all lawsuits brought against its members.

What this means is that the CMPA will not settle any lawsuit unless the plaintiff can prove (usually through expert evidence) that the doctor was negligent, and that it was the doctor’s negligence that caused the plaintiff’s injuries. This can be a difficult test to meet. The result is that over 60% of all lawsuits brought against doctors across the country (excluding Ontario and Quebec) are unsuccessful. Of those lawsuits that go to trial, 86% are unsuccessful. This has significant financial implications for plaintiffs.

If you start a lawsuit and lose following trial, you will be responsible for both the expenses your lawyer has incurred in prosecuting the case, depending on the terms of your retainer agreement with your lawyer, as well as the defendant physician’s costs and disbursements. This could amount to a significant sum of money.

In order to manage this risk, it is critical that before starting a lawsuit against a doctor, and again at key phases of the lawsuit, you and your lawyer carefully consider the strength of the case in relation to these financial risks.

Myth #5 – I am entitled to substantial compensation if a family member dies as a result of medical malpractice. Unfortunately, the legislation which deals with wrongful death in British Columbia, namely the Family Compensation Act, is outdated, inadequate and in desperate need of reform. I have responded to countless calls from grieving individuals who believe their spouse, parent or child died as a consequence of medical malpractice. Unless the deceased family member provided significant financial support or household/childcare services to the family, the individual is unlikely to receive sufficient compensation to make the costs and risk of a medical malpractice case worthwhile.

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