May. 5, 2001. 07:48 AM
How system helps shield bad doctors
ROBERT CRIBB, RITA DALY AND LAURIE MONSEBRAATEN
You've just been diagnosed with cancer. You're scheduled for surgery in a few weeks by a doctor you hardly know.
In Ontario - and across Canada - provincial laws governing doctors say you can't find out if your surgeon has been hauled before the physicians' watchdog for complaints of malpractice, even for the exact operation you're facing. You aren't told if the surgeon is under investigation now, or has a spotless record.
The medical complaints system is cloaked in secrecy.
Since discipline procedures at the College of Physicians and Surgeons of Ontario can take three years, some dangerous doctors continue practising without patients knowing there may be a risk.
In the last six years, the college investigated 13,000 complaints about doctors. Of those, 99 per cent were either dismissed outright or handled internally and in secret.
We can learn nothing about them. The college, which says it is bound by privacy provisions in the Regulated Health Professions Act, will not reveal the names of the doctors involved, how many had complaints against them, the nature of the complaints or how they were handled.
The only window into a doctor's competence, integrity and past professional conduct is a public disciplinary hearing conducted by the college.
A Toronto Star investigation shows that since 1994, when new legislation governing doctors came into effect, only 141 complaints have reached this stage.
Data on those cases, compiled by The Star using the college's public records, reveal a disciplinary system that typically hands out lenient penalties, rarely revokes licences, can take years to render decisions and puts doctors on higher legal footing than complainants.
The Star's data show that 111 doctors have been found guilty of offences ranging from fraud, drugging and sexually assaulting patients and missed diagnoses, some causing death. Of those, 34 received the college's maximum penalty - licence revocation.
The majority of sanctions handed out were suspensions averaging less than three months or reprimands, usually with some conditions, such as cash fines, additional training or letters of apology.
Ontario's college took an average of three years to reach those decisions - tied with Manitoba as the slowest medical disciplinary system in Canada.
The overwhelming majority of Ontario's 20,480 practising doctors - skilled professionals dedicated to meeting the highest standards of care - has never been the subject of a college disciplinary hearing. They may face a minor complaint or two over the years but for the most part their records are clean.
But some physicians who have done great harm are allowed to continue practising.
Dr. Kenneth Bradley, a former Milton chief surgeon, was twice was found guilty of medical negligence involving patients who died. Still, Bradley kept his licence and later moved to Virginia, where he was implicated in another four deaths.
Dr. Stanley Dobrowolski, a London, Ont., psychiatrist, was disciplined three times for sexually related offences. He is still treating patients.
Dr. Anthony Laws, who practises in Oakville, falsified documents to cover up his role in the death of a 14-year-old patient under his care.
People who feel they have been harmed by a physician can seek damages through the courts. But the self-governing College of Physicians and Surgeons of Ontario is the only authority that can suspend or revoke a doctor's licence.
The Ontario Medical Association, which speaks for the province's doctors, believes the college is doing an ``exemplary job'' of protecting the public and guiding the profession.
Dr. Alex Schumacher, the OMA's immediate past president, says the low discipline rate is a reflection of the province's high licensing standards compared to other jurisdictions.
But the college itself acknowledges the system should be more open and must resolve patient complaints more quickly.
And that means getting tougher on dangerous doctors, say some college members.
``Clearly there has been less than effective identification of those (doctors) who have serious problems that need addressing,'' says Dr. David Walker, dean of health sciences at Queen's University and co-chair of the college's complaints committee.
Last year in Ontario, 21 doctors had their licences revoked or suspended.
During the same period, Michigan, with a similar number of physicians, suspended or revoked the licences of 102 doctors. In Massachusetts, another comparable jurisdiction, it was 45.
In Ontario and elsewhere, most doctors can keep practising while they are being investigated. But in a growing number of states, information about doctors under investigation is posted on Web sites for anyone to see.
Gerace doesn't think the American focus on discipline gets to the heart of the matter.
``Their measure of success is their percentage of discipline referrals. I would suggest to you that a discipline referral is a failure.
``We have to balance the will of the public for revenge - an eye for an eye and a tooth for a tooth - versus what's best for the public interest, which is having doctors deliver better care. Do we need to have a few examples out there? Just beat someone up?''
Gerace says that while U.S. jurisdictions rely solely on discipline, Ontario has developed unique programs to assess and retrain doctors whose skills are lacking.
The philosophy reflects the college's belief that most doctors who have made clinical mistakes are anxious to improve and will become better doctors through education rather than punishment.
But according to a recent government report about the discipline process, there is no system in place to ensure this approach is actually working.
The government-commissioned report expressed concerns that the quality assurance program ``may not be the appropriate response'' for patient complaints about doctors.
And since the process is handled entirely behind closed doors, there's no way patients or the public can judge whether their complaint was handled adequately.
That secrecy is only lifted when complaints trigger disciplinary hearings.
In the past six years, the majority of those hearings - 77 out of 141 - concerned sexual misconduct, followed by cases involving patient deaths (19), and psychological harm inflicted by doctors (10).
Other offences that went to disciplinary hearings included fraud, physical injuries and faulty record keeping.
The focus on sex-related cases reflects the college's zero-tolerance policy, adopted in 1994 following a provincial government task force that estimated 10 per cent of Ontario doctors had sexually abused a patient at some time.
The Star data show that 25 of the 61 doctors found guilty of sex-related complaints had their licences revoked, 24 received suspensions averaging 3* months, 10 received reprimands and two quit their practices.
Zero tolerance covers anything from inappropriate touching to consensual intercourse to rape. The Ontario Medical Association is currently challenging this policy before the courts as a Charter of Rights and Freedoms issue.
The Star data shows that in at least four cases, physicians allowed to continue practising went on to repeat the same offence.
Dobrowolski, the psychiatrist from London, Ont., is a prime example.
He has appeared before the college three times since 1994 on complaints ranging from hugging, kissing, fondling and sexual intercourse with patients.
At his second appearance, in 1996, the panel concluded Dobrowolski demonstrated ``an extremely worrisome pattern of behaviour.''
Dobrowolski received a short suspension and two reprimands but never lost his licence. He continues to treat patients in London.
``It (the disciplinary system) is such an unpleasant process from the point of view of a physician that even just talking about it brings back bad memories,'' he said, when contacted by The Star. ``You try and put it behind you and get on with life.''
Many doctors see the college as an adversary that often dishes out unwarranted punishment.
Of the 19 cases of death under physician care that reached the disciplinary committee since 1994, no fault was found in five.
In the other 14 deaths since 1994, the college did lay blame on substandard care. Three of the 14 doctors had their licences revoked, while the rest were handed reprimands or given short licence suspensions.
On Aug. 20, 1993, Tom and Patricia Bain buried their only son, 14-year-old Jonathan. At the time, the Mississauga couple were told his death was caused by a viral infection.
The family contends that tests later revealed prescribed drugs caused the teenager's death. They complained to the college that Oakville physician Anthony Laws covered it up.
Throughout the process, Laws continued to practise with a clean record.
College documents show Laws first prescribed the drug Cylert, which has been linked to liver problems, to treat Jonathan's Attention Deficit Disorder (ADD) in 1992.
In July, 1993, the boy was admitted to hospital with severe liver problems. He died after undergoing two liver transplants.
Following the teen's death, tissue tests revealed Cylert was the cause of Jonathan's liver failure, according to the family.
The Bains complained to the college that Laws ``never told us of the risk in advance, he never monitored our son when he was on the drug, he never ordered blood tests despite the risks.''
The Bains are upset that Laws prescribed Ritalin, another ADD drug, along with Cylert.
``He was experimenting with our son,'' Tom Bain told The Star.
But at the hearing, medical competence wasn't the focus. The panel was more concerned about Laws' conduct after Jonathan's death, ruling that he falsified letters to the Bains' family doctor and entries in Jonathan's chart and failed to warn them about the risks of liver failure.
``Our complaint was never dealt with because our complaint was never for forgery, falsification or perjury,'' Bain says. ``It was for the medical aspect.''
In June, 1999, Laws was found guilty of professional misconduct and handed a six-month suspension, reduced to three for meeting conditions such as seeking psychiatric treatment and upgrading his skills.
Tom Curry, the Toronto lawyer representing Laws, said his client ``felt the disciplinary decision was fair and he didn't have any complaint about the process.''
Like all complainants, the Bains had no official standing before the college, acting merely as witnesses in the case.
College lawyers, much like crown attorneys, act on behalf of the system, not the individual. Complainants cannot call witnesses or ask questions.
If complainants want their own legal advice, they must pay for it themselves.
On the other side of the room, money is no object for doctors. The Canadian Medical Protective Association (CMPA), which represents more than 90 per cent of doctors in Ontario, picks up the tab for top legal representation.
Doctors, in turn, are reimbursed with public money for most of the insurance premiums they pay. This year, it is expected the province will pay just under $70 million out of total malpractice premiums of about $100 million.
``I've walked out of college hearings thinking physicians are protected far more than they deserve,'' says Toronto lawyer Barry Swadron, who has represented several clients in complaints against physicians.
``Doctors stick together. If a fight is involved, the odds against the victim are astronomical.''
College president Gerace dismisses the claims of a power imbalance between doctors and complainants, saying the system is designed to protect the public interest.
``The analogy is the criminal system. If someone gets drunk and kills my child, I want to be a party to that but I'm not. The prosecutor is there to protect the public interest,'' he says.
``We're there to ensure that either a physician is found to be okay or is found to be wanting and that the correct steps are taken.''
Investigative reporter Robert Cribb can be reached at: firstname.lastname@example.org