Canadian Medical Protective Association - Prominent Legal Cases

Prominent Legal Cases

The following cases provide a snapshot of a few high-profile cases of recent years that have attracted the attention of the news media in Canada.

Dr. Nancy Olivieri ~ Dr. Olivieri received legal advice and support from the CMPA in a case involving clinical trials of a drug called deferiprone, or L1. The drug's manufacturer, Apotex, tried to prohibit Dr. Olivieri from informing patients of the risks of L1, and hoped that she would cave to their threats of legal action against her because the cost of hiring legal counsel could be prohibitive. The CMPA played an instrumental role in protecting Dr. Olivieri's professional reputation and in asserting her belief that her ethical duty to her patients and research subjects outweighed any legal obligations she might have had under a confidentiality agreement between herself and Apotex.

Dr. Richard Austin ~ Joan Jaikaran is one of several women who filed million-dollar lawsuits against Dr. Richard Austin of The Scarborough Hospital, claiming her internal organs were inadvertently cut during surgery. There is no way to evaluate whether that number of lawsuits is unusual for an obstetrician-gynecologist. The Canadian Medical Protective Association doesn't disclose figures on lawsuits by medical specialty. As of 2007, there was no public transparency or accountability built into the system.

Dr. Mark Stewart ~ Debbie Maki was one of 22 abused patients who sued convicted molester Dr. Mark Stewart along with the College of Physicians and Surgeons. Said Maki: "There is a need to challenge a system that enables doctors to abuse patients without repercussion or reproach." Ultimately, Dr. Stewart was convicted of nine indecent assault charges and sentenced to four years federal time. The College never provided a tally of the complaints it amassed against Stewart during his 25-year practice, but records indicate police interviewed 60 patients before charging him with 76 sex crimes relating to his medical treatment. Stewart continued practicing and abusing patients long after Maki complained in 1994 to college officials. Stewart's civil legal fees as well as his criminal legal representation was covered by the Canadian Medical Protective Association.

Vegreville Hospital ~ In 2007, authorities closed this Alberta hospital to new admissions after inspectors reported faulty sterilization and flesh-contaminated surgical tools. The hospital had a clear responsibility to prevent the risk of spreading infection. Patients who sue must prove negligence. An Alberta lawyer said: "It's a David versus Goliath scenario. Doctors, through the CMPA, can expect to have the top medical specialists speak in their defence. They have the access, the contacts, the money. Lawyers for patients have a harder time finding experts who will testify against fellow doctors." A senior Quebec attorney added: "Patients In Quebec have an advantage over those in other provinces because of legislation guaranteeing safety of care. It's one reason why Quebecers who sue have better than 50-50 odds of winning. The average in the rest of Canada is 30 to 35 per cent."

Dr. Errol Wai-Ping ~ Obstetrician Dr. Wai-Ping amassed a multitude of patient complaints against him dating back to 1992. The women with obstetrical injuries established a "common cause," and in 2001 launched a Class Action suit against Dr. Wai-Ping, with 375 plaintiffs claiming $25 million in total damages. Finally in 2004 the College of Physicians and Surgeons reviewed the cases and declared Wai-Ping incompetent, noting his complication rate for some procedures was 20 times the provincial average. Dr. Wai-Ping lost his license. However, by 2006 the Class-Action suit was still dragging through the courts, beset by motions filed by lawyers defending Wai-Ping and paid for by the Canadian Medical Protective Association. Critics argue this is an unjust system that pits patients against a physicians' defence fund that offers no accountability in how it spends the money and gives doctors little incentive to settle. Lawyer Paul Harte notes: "The CMPA defence fund is unlicensed, unregulated and not subject to public scrutiny of their books."

Scorched Earth Policy ~ In a recent malpractice case, the Canadian Medical Protective Association was accused of grinding down two plaintiffs who were already depleted from the injury caused by the doctor's negligence. The Judge remarked on the aggressive CMPA tactics: “The plaintiff prevailed at trial in this medical malpractice case and recovered a judgment that requires the defendant Dr. Haukioja to pay damages and interest calculated to total $1,914,807.90. Owing to the defendant’s scorched earth policy of putting the plaintiffs to the test of establishing virtually all of his claims on all issues of damages and liability, the trial extended over some 20 days. Central issues were complex and vigorously contested.” The judicial decision is Frazer v. Haukioja, 2008, Ontario Superior Court.

Waiting List Lawsuits ~ Courts will soon focus on how physicians manage and monitor patients' conditions while they are waiting for care. If a patient is injured due to treatment waiting lists across Canada, the patient may now file a civil claim. In 2007, the CMPA released a report titled "Wait Times: A Medical Liability Perspective." Among the recommendations issued by the CMPA: Doctors should advocate hard for their patients for medical procedures the doctor thinks are necessary.