Medical legal coverage raises flags Taxpayer-supported organization that protects physicians comes under scrutiny in wake of sex assault trial By: Katrina Clarke Posted: 4:00 PM CST Friday, Feb. 9, 2024

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This article was published 09/02/2024 (576 days ago), so information in it may no longer be current.

Millions of Manitoba taxpayer dollars subsidize doctors’ membership in an organization that covers their legal costs — mainly for lawsuits, hospital complaints and professional discipline — but also for certain criminal matters.

However, the organization is refusing to say if it is paying for the legal defence of a former Manitoba physician recently convicted of sexual assault.

The Canadian Medical Protective Association describes itself as a “mutual medical defence organization” for Canadian doctors that protects their “professional integrity” and “advances patient safety and compensates patients harmed by negligent care.”

It has assets valued at $5.4 billion, according to the CMPA’s 2022 annual report. The organization makes clear it is not an insurance company — it does not require doctors to pay deductibles and premiums don’t go up.

In Manitoba, doctors pay thousands of dollars in dues annually to the CMPA and are then partially reimbursed by the province through a rebate program. In turn, they get access to legal help and advice — including in cases involving a lawsuit, or threat of a lawsuit, a regulatory body complaint or criminal matter stemming from their work — plus information on improving patient safety and a range of other services.

A total of $108.5 million from taxpayers went to doctors via Manitoba’s CMPA rebate program in the last 10 years, including $12 million in 2022-23, according to the province.

When it comes to funding criminal cases, the CMPA’s policy is that it will “generally exercise its discretion to assist” by paying for a member’s legal defence in cases where the criminal charge arose from the doctor’s medical work.

The CMPA will not say if it paid the legal costs associated with the defence of Arcel Bissonnette, a former Ste. Anne family doctor convicted of sexual assault. A spokesperson said the organization is “unable to comment on individual members or on matters before the court.” His lawyer, Martin Minuk, said the same.

Bissonnette was convicted last fall of sexually assaulting five patients. Earlier this month, he pleaded guilty to two more sex crimes, avoiding what would have been his third trial. He remains out on bail, with sentencing submissions to be heard in June. He also faces a civil suit from five women whose charges were stayed in the first trial. His medical licence was revoked following his conviction.

Arthur Schafer, an ethics expert, called the CMPA’s refusal to say if it is funding Bissonnette’s legal defence “shabby ethics.”

“The public is entitled to know,” said Schafer, the founding director of the Centre for Professional and Applied Ethics at the University of Manitoba. He said the CMPA receives “substantial public dollars” and it has “a moral obligation” to be transparent.

Two of the alleged victims in the Bissonnette case were shocked to learn taxpayer dollars could have supported his legal defence.

“I understand that doctors have insurance for malpractice, which makes sense because accidents happen, but not in criminal cases where sexual assault has occurred, because that’s not an accident,” said one alleged victim who cannot be named. Her charges were among those stayed.

Another woman whose charges were also stayed said she was “disgusted” to learn the CMPA covers legal fees in similar cases.

“It’s just hard to deal with,” she said. “That’s really gross.”

The Canadian Taxpayers Federation also takes issue with the use of public funds in criminal cases.

“It’s definitely outrageous,” said Gage Haubrich, the organization’s prairie director.

Haubrich said physicians who have been convicted of criminal offences should be required to pay back the cost of their legal fees.

The CMPA declined to provide a representative for an interview. In a statement, CMPA CEO Dr. Lisa Calder said the association works with doctors to prevent harm and improve patient safety, and that it does not tolerate sexual abuse.

“We understand that sexual impropriety allegations can be devastating to all involved; but like all Canadians, doctors should be considered innocent until proven guilty,” she said. “As such, where the CMPA provides assistance, it does so based on the presumption of innocence; and we remain committed to providing doctors with a fair and ethical defence.”

Calder said the CMPA “does not provide further assistance once there has been a criminal finding of guilt in relation to sexual abuse.” It also does not pay settlements or awards of costs in cases where there is an allegation or finding that the member “engaged in sexual abuse.”

Paul Harte, a medical malpractice lawyer based in Toronto, takes issue with CMPA’s position.

“You will note that they are prepared to fund a legal defence to doctors who are alleged to have sexually abused patients, but they do not use their discretion to pay compensation to these victims,” he said. “As a publicly funded organization, they have their priorities reversed.”

It remains unknown how many criminal matters the CMPA has assisted with in Manitoba. Statistics from its annual report show there were 18 medical-legal cases in 2022 classified as “other,” a category that includes criminal cases but also human-rights complaints, inquests and privacy investigations, in the “SMAT” region — Saskatchewan, Manitoba, Atlantic provinces and the Territories.

In her statement, Calder stressed the CMPA is not a taxpayer-funded organization.

“Membership fees are paid entirely by members,” she said.

However, that characterization is discounted by critics.

“The notion that this is not public money is simply not correct,” Harte said. “In the same way that funding for hospitals and doctors is public, the reimbursement program is funded entirely by taxpayer dollars.”

“The notion that this is not public money is simply not correct.”–Medical malpractice lawyer Paul Harte

Harte said the CMPA’s key interest is in protecting doctors’ reputations, something it goes to great lengths to accomplish. Its deep pockets allow it to take a “scorched earth” approach to litigation, dragging out cases and racking up fees, he said.

“It doesn’t accord with the public interest,” he said. “I just don’t understand why physicians are afforded this protection when other professions aren’t.”

Harte said it can be difficult for patients who’ve suffered harm to even find a lawyer willing to take on their case. Going up against CMPA-funded lawyers means costs will be high, he said, adding unless the injury is catastrophic, it might not make financial sense to sue.

In response, Calder said the CMPA assesses each case and seeks settlement “when appropriate, as quickly as possible.”

Chris Wullum, a Winnipeg medical malpractice lawyer, is less critical of the CMPA’s practices.

“(The CMPA) will put a claimant to task to prove their claim regardless of whether it involves a minor injury or catastrophic one,” Wullum said. “I don’t fault the CMPA for playing within those rules and defending the reputation of doctors.”

“The issue with the system is the inequity of the cost to litigate versus the amount of compensation that can be recovered where negligent mistakes were still made”–Medical malpractice lawyer Chris Wullum

However, Wullum said it’s the existing legal system that presents a potential “access to justice” issue.

“The issue with the system is the inequity of the cost to litigate versus the amount of compensation that can be recovered where negligent mistakes were still made but the injuries that resulted were more minor,” he said. “In those cases, lawsuits usually don’t get pursued even though negligence may still have occurred.”

Doctors Manitoba, which facilitates the rebate program on behalf of Manitoba Health, said physicians are “disgusted and horrified” by the Bissonnette case.

As for the rebate, spokesperson Keir Johnson said it “covers a portion of the annual liability coverage fees that all doctors must have to practise medicine.”

“Our rebate never covers any direct expenses a physician faces in a criminal trial,” Johnson said, adding the rebate helps Manitoba remain “competitive” in recruiting and retaining much-needed doctors.

Liability insurance rates can reach into the tens of thousands of dollars, depending on the specialty, he said.

The funding model is similar in other provinces and is not unique to Manitoba.

“The need for doctors to practise in Manitoba with reasonable protections must be balanced against the needs of patients to be safe and to seek justice when they have been wronged,” Manitoba Health Minister Uzoma Asagwara said in a statement in response to a question about the CMPA.

— with files from Dean Pritchard

katrina.clarke@freepress.mb.ca