It's a tricky — and costly — business creating
a system that protects doctors from lawsuit abuse and
protects patients against incompetence. Canada and
the US are both striving to achieve that balance, but
as with most things healthcare-related, our approaches
are very different. While the US focuses on pre-emptive
policing of incompetent doctors, Canada is looking to
streamline malpractice payments and reduce administrative
costs.
"The United States Congress needs
to pass real medical liability reform this year," declared
George W Bush in early January. During last fall's election
campaign he hammered away at the 'trial lawyers' (Democratic
vice presidential hopeful John Edwards included), whom
he accuses of driving up healthcare costs for everyone
by winning huge jury verdicts in medical malpractice
suits. A core element of Mr Bush's reform plan is to
limit non-economic damages, often referred to as 'pain
and suffering,' to $250,000.
While the president is not a dear
lover of Canada's state-delivered healthcare model,
his proposal to limit non-economic damages mirrors one
that's been part of our tort system since the late 1970s,
thanks to a Supreme Court decision. The limit is now
in the $350,000 range, according to Dr William Beilby,
the associate executive director of the Canadian Medical
Protective Association (CMPA), the non-profit medical
mutual defence organization for physicians.
OUR
CAP OVERFLOWETH
Dr Beilby, however, stresses that a cap on damages alone
doesn't hold back the growth of settlements and, by
extension, expenses. "Our damages, in spite of having
that cap, continue to grow," he says. "If we take the
total costs we pay out in a year, not only in damages
but also to defend physicians, it was $125 million 10
years ago. In 2003 it was close to 300 million."
Ninety-five per cent of all Canadian
doctors are members of the CPMA, which provides them
with legal defence in a malpractice claim or pays any
judgment or settlement arising from a claim. In Canada,
most provinces reimburse the annual CMPA membership
fee.
Unlike in the US, there is not
a big government push for tort reform here in Canada,
but it's an issue that the CMPA is pursuing with the
provinces. Dr Beilby says there are two areas for Canadian
tort reform: structured settlements, which the CMPA
approves of, and subrogation, which it doesn't.
SETTLE
& SUBROGATE
Structured settlements mean that the CMPA, which shells
out for the settlements, buys an annuity that offers
the claimant a structured payment plan of a set amount
of dollars every month for life, rather than paying
out a lump sum. Currently, only Manitoba and Alberta
allow for courts to order structured settlements in
malpractice cases. "Structured settlements decrease
the cost for [the CMPA] but the patient gets the same
amount," says Dr Beilby approvingly.
The second area is subrogation
— which in this case means a provincial healthcare
plan's right to claim past costs from the negligent
physician as well as future expenses for the ongoing
care of an injured plaintiff.
This means that the province delivers
the resulting medical care or social services for an
injured plaintiff and seeks to recover the costs from
the physician through his or her CMPA coverage. The
CMPA pays the provincial healthcare provider, but then
charges physicians higher fees, many of which are covered
by the provinces as part of their negotiated contracts.
It's a cyclical process that benefits
no one, says Dr Beilby, adding that the provinces are
the big losers as they also have the administrative
costs of pursuing subrogation to contend with. "The
subrogation payment comes from us at the end of day,
but if it's us that has to pay, then the doctors pay
us more and the government reimburses the doctor," he
says.
BIG
PAYERS ON SIDE
Obstetricians and gynecologists, who have the highest
CMPA membership fees of any physicians, are supportive
of both tort reform proposals, says Dr Vyta Senikas,
associate executive vice president of the Society of
Obstetricians and Gynaecologists of Canada. To give
an example of how much ob/gyns are paying for coverage,
the current annual CMPA fee for an obstetrician in Ontario
is a whopping $86,244, of which the province reimburses
all but $4,900. In comparison, a family physician in
Ontario with an office-based practice would pay $3,096
— most of which is also reimbursed.
"The issue [with subrogation] is
that you have the right hand of government paying physician
premiums and then when there is a lawsuit, OHIP in Ontario,
for example, is trying to reclaim money," says Dr Senikas.
"That could function a little more collaboratively.
There certainly is room for tort reform in Canada, but
of a different nature than in the US."
Dr Ruth Collins-Nakai, president-elect
of the Canadian Medical Association and an Alberta cardiologist,
says she is also supportive of the CMPA and its push
for Canadian tort reform. "We do need tort reform here,
it's just that the influence of tort reform will not
be as dramatic as in the US," she says, adding that
she studied in the United States and would not be tempted
to return as a result of US tort reform.
|
