"In the case of Cairns, Silver notes that there was already a public airing of issues at a $10 million inquiry where he was harshly criticized for protecting Smith, the pathologist whose sloppy work contributed to a series of wrongful prosecutions and convictions.
But medical malpractice lawyers argue that errant doctors are avoiding public disciplinary hearings by resigning. And they say there are other issues at stake in addition to public safety: deterrence, education, punishment and accountability.
“What message does it send when these doctors are allowed to retire from the profession without any adverse consequences?” asks lawyer Paul Harte.
“I would love for someone to do a survey and find out whether the public is supportive of the idea that when doctors are alleged or found to have made mistakes, that they are allowed to bow out and say okay, don’t continue your investigation, I resign,” says lawyer Amani Oakley."
HEALTH REPORTER THERESA BOYLE; THE TORONTO STAR;
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BACKGROUND: The Goudge Inquiry inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist — whose errors led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, chronic tardiness, and the catastrophic misinterpretation of findings. The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."
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"The College of Physicians and Surgeons is coming under fire for dropping investigations in at least four separate cases where doctors agreed not to practise again rather than face disciplinary action," The Toronto Star story by reporter Theresa Boyle, published earlier today under the heading, "Victims, lawyers angry doctors allowed to resign and avoid investigation," begins.
"And in a fifth case, the college is also being criticized for taking another doctor’s retirement into account when it dropped a probe into a missed diagnosis of skin cancer," the story continues.
"The latest case was revealed Friday when the regulatory body said there was nothing to be gained from disciplining former deputy coroner James Cairns over his role in the Charles Smith saga since he had already turned in his licence to practise medicine.
These cases raise the questions: Are these doctors being let off the hook too easily? Or is it enough that they are no longer allowed to practise medicine in Ontario?
In April, an appeal board overruled the college in one of these decisions, saying it wasn’t convinced the public was safe just because the doctor in question had retired. The Health Professions Appeal and Review Board ordered the college to reconsider a complaint against pathologist Dr. James Murray, who had misdiagnosed a case of skin cancer in a Kingston man who now suffers advanced melanoma.
The patient, Nick Bala, a Queen’s University law professor, charges that his poor prognosis is the result of Murray diagnosing a mole on his right shin as benign. Bala says he was shocked when the college ruled that Murray “did not fail to meet the standard of practice” and that because he had retired “the risk of harm to the public by any future similar error on Dr. Murray’s part is nil.”
(The college’s decision also took into account that Murray had written in his report that another biopsy “might be considered,” that the doctor’s employer, CML HealthCare Inc., had misplaced the original biopsy slide and that Murray had only two other complaints against him in his 40-year career.)
“It is too late to protect me from Dr. Murray’s mistaken diagnosis. However, I believe the college failed in its duty to protect the public by failing to direct a more extensive review of Dr. Murray’s work,” says Bala, who wonders if there are other patients out there who may have cancer and don’t know it.
The appeal board agreed with Bala, noting there is another case where Murray is suspected of misdiagnosing a skin cancer. It ordered the college to immediately look into the case and if a misdiagnosis is confirmed, take a broader review of Murray’s practice. The board also wrote that it could not know with certainty if Murray had permanently retired.
College counsel Carolyn Silver points out that the key role of the regulatory body is to protect the public and the harshest sanction it can impose is revoking a doctor’s licence. But if the doctor resigns, then revoking his licence is a moot point, she explains, However, if the doctor promises to not to reapply for his licence in exchange for having disciplinary action dropped, then the college achieves its goal of protecting the public, she says.
In some cases, evidence against a doctor isn’t strong enough and going to a disciplinary hearing is like “rolling the dice,” Silver says, noting the patient may not win.
But if a deal can be struck where the doctor agrees not to practise again, “we can essentially obtain victory without going to a hearing,” she continues.
At the same time, the patient is spared the ordeal of testifying and taxpayer dollars are saved by not holding a disciplinary hearing, she acknowledged.
In the case of Cairns, Silver notes that there was already a public airing of issues at a $10 million inquiry where he was harshly criticized for protecting Smith, the pathologist whose sloppy work contributed to a series of wrongful prosecutions and convictions.
But medical malpractice lawyers argue that errant doctors are avoiding public disciplinary hearings by resigning. And they say there are other issues at stake in addition to public safety: deterrence, education, punishment and accountability.
“What message does it send when these doctors are allowed to retire from the profession without any adverse consequences?” asks lawyer Paul Harte.
“I would love for someone to do a survey and find out whether the public is supportive of the idea that when doctors are alleged or found to have made mistakes, that they are allowed to bow out and say okay, don’t continue your investigation, I resign,” says lawyer Amani Oakley.
“I don’t know of any other area where that happens. If you commit a crime, it’s not okay to say ‘I don’t drive cars anymore so don’t worry about my drunk driving’,” she adds.
Other cases where the college has dropped investigations:
•Former gynecologist Richard Austin last year entered into a deal with the college in which he resigned from practising medicine in exchange for having complaints from five patients dropped. Patients alleged he botched their surgeries and the college complaints committee even found that he fell below the expected standard of care in three cases. The college’s decision is being appealed.
•The college earlier this year quietly dropped an investigation into former chief coroner James Young in exchange for him pledging his intention not to reapply to practise medicine in Ontario. The college revealed it was investigating Young in 2008, following a public inquiry during which he had come under harsh criticism for his lax oversight and protection of pediatric pathologist Charles Smith, whose litany of errors led to a series of wrongful murder charges and convictions.
•In 2007, the college agreed to withdraw allegations of professional misconduct and incompetence against Michael Bogart from a patient who says he became an addict because the general practitioner over-prescribed drugs. The college’s decision is being appealed.
The story can be found at:
http://www.healthzone.ca/health/newsfeatures/article/824040--victims-lawyers-angry-doctors-allowed-to-resign-and-avoid-investigation
Harold Levy...hlevy15@gmail.com;
