Goudge Report Suggests Ways to Streamline the Complaints Process Against Physicians

Earlier this year, the Ministry of Health and Long-Term Care (the Ministry) has released the Honourable Justice Stephen Goudge’s 2016 report which makes a number of recommendations on how the College of Physicians and Surgeons of Ontario (CPSO) can streamline its complaint review process. The report deals with legislation including the Regulated Health Professions Act, 1991 (“RHPA”), The Health Professions Procedural Code, and the Medicine Act, 1991.

The Goudge Report gives a detailed review of the law, the history and structure of the CPSO (the Regulatory/Licensing body for physicians), and the complaints process.

Although we do not deal with the CPSO process, we felt that it would be beneficial to raise awareness for the public to learn that this process exists.

What is the CPSO Complaint Process?

The CPSO has an internal administrative process to investigate complaints by patients against their physicians.

The complaint process is completely different than a lawsuit through the civil litigation process. Potential outcomes from the process can include findings against the physician, and retraining/disciplinary measures. No compensation is awarded to patients who were injured by negligence.

On the other hand, a medical malpractice civil lawsuit is brought in the Superior Court of Justice in order to obtain financial compensation for damages, losses and future needs.

Why This Report?

The Ministry commissioned the investigation for a number of reasons, including the fact that:

• The CPSO receives the largest number of complaints against physicians of any health care regulator in Canada;
• Physicians have, in turn, been increasingly seeking advice and representation from the Canadian Medical Protective Association (CMPA).

Ontario’s Arrangement with the CMPA

As we’ve previously blogged about the Canadian Medical Protective Association (CMPA), an Ottawa-based “mutual defense association” representing doctors from across Canada. The CMPA arranges for lawyers and pays the legal bills for physicians who are involved in medical malpractice lawsuits. Canadian doctors pay thousands of dollars annually be CMPA members, and the province of Ontario has also been subsidizing CMPA fees since 1987.

While the CMPA is incredibly well-funded, with around $4 billion in resources, the province (and taxpayers) have been partially responsible for any increases in the cost of running the association. A 2015 Toronto Star investigation revealed that the cost to taxpayers grew by more than 3,200% by 2014, at which point taxpayers were paying almost $200 million annually, or 81% of total CMPA fees.

The Public Complaints Process

We’ve previously blogged about how an injured patient or their family member can make a complaint against a physician to the CPSO. These are known as Public Complaints.

Justice Goudge’s general overall conclusion was that there are “quite simply, too many complaints and investigations are in the system too long”.

He noted that:

• Public Complaints are “the single most expensive and resource-consuming aspect of the physician complaints process workload for both [the CPSO] and the CMPA”
• Between 2010 and 2014 there were an average of 2,412 new complaints filed annually to the CPSO;
• Public Complaints must be disposed of within 150 days of being filed (though this deadline can be extended in certain circumstances);
• This 150-day deadline is not being met on many occasions;
• The median length of time from receipt of a Public Complaint to a decision about that Complaint was 200 days;
• More than 80% of Public Complaints are disposed of “either as ‘no action’ or by way of advice to physicians”. Despite this, the CPSO must still investigate them.

Some Recommendations

The report made several recommendations on improving efficiency, cost effectiveness, and better support for victims of medical malpractice.

General recommendations included:

• Establishing a government entity that would be responsible for the payment of future care costs of injured patients and capping compensation for family members;
• Creating an advisory committee of experienced judges and plaintiff and defence lawyers to iron out the details of the recommendations and monitor their implementation, and to make ongoing suggestions for improvement;
• Looking to the Healthcare Insurance Reciprocal of Canada (HIROC) for ways in which to improve the current medical malpractice system. Justice Goudge suggested that HIROC does a better job managing their legal costs since it pays the lawyers it retains though cost agreements for fixed periods of time rather than on a fee-for-service basis.

More specific recommendations were also made, including:

Appointing a Complaints Director

Justice Goudge also looked to Alberta’s regulatory college governing physicians and recommended that the CPSO follow its lead by creating the position of a “Complaints Director”. The Complaints Director would:

• Be responsible for conducting early reviews of public complaints;
• Would be provided with the power to approve the withdrawal of a complaint by the complainant;
• Would be provided with the power to dismiss a complaint outright where he or she was satisfied that there was no reasonable prospect of an outcome other than “no action”;

Patients would have a right to appeal in cases where their complaints were dismissed.

Appointing a Patient Advocate

Justice Goudge also recommended that the CPSO create a “patient advocate” position. The patient advocate would interact with patients as soon as complaints were filed.

Justice Goudge noted:

For a significant number of complainants who are simply not aware of the limits on the scope of the jurisdiction of the CPSO, a proper explanation from someone who is sympathetic to their patients’ perspective may well satisfy them that their complaint can be withdrawn or does not fall within the jurisdiction of [the CPSO] and that their remedy may lie elsewhere

Justice Goudge also urged for the creation of a new alternative dispute resolutions process.

How Can a Medical Malpractice Lawyer Help?

We do not engage in the CPSO complaint process. Instead, we focus on helping seriously injured people get compensation so they can move forward.

With the proper lawyer on their side, victims of medical malpractice, medical error, or negligence should not be dissuaded from filing a claim and pursuing their rights. At Sommers Roth & Elmaleh, our experienced and dedicated medical malpractice lawyers routinely take on the CMPA and will compassionately and skillfully guide you through the process of pursuing a medical malpractice claim.

Unlike many medical malpractice firms, we operate on a strict contingency fee basis to ensure that help is available to families who need it. Initially consulting with us and even choosing to pursue a medical malpractice claim, will not cost you anything.

Often, firms may be reluctant to work on medical malpractice files on a contingency basis because the costs can be astronomical and the process can take years, a period during which the lawyers are not paid. We are not intimidated by the challenge and expense of taking on such files on contingency, and are committed to representing clients in even the most difficult cases.

Over the last 40 years, our firm has won some of the largest medical malpractice awards in Canadian history and has established precedents that other medical malpractice decisions have since been based on. We help clients in all parts of Ontario and from all across Canada, including Newfoundland, Saskatchewan, Alberta, and British Columbia. Call us at 1-844-777-7372 or contact us online for a free consultation.