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“Undertakings” to resign or restrict practice let some doctors accused of injuring, sexually abusing or improperly prescribing narcotics to patients avoid disciplinary hearings.

Brenda Waudby was wrongly implicated her daughter's death by former forensic pathologist Charles Smith.

Ontario’s medical watchdog has made “backroom deals” with more than 200 doctors considered “high risk” to the public to quietly resign or restrict their practices, a Star investigation has found.

Some have been the subject of complaints about errors as serious as botching surgeries, injuring mothers and babies during childbirth, sexually abusing patients, and abusing and improperly prescribing narcotics.

The deals, struck by the College of Physicians and Surgeons of Ontario over the past decade, are officially known as “undertakings.” Many were made in exchange for having investigations or prosecution plans dropped.

Medical negligence lawyers have long complained the deals are made behind closed doors, with no input from harmed patients. The public is kept in the dark about rationale and context.

Patients’ lawyers argue Ontarians can learn more about physicians from websites such as RateMyMD than from the self-regulator’s online register, which is intended to help patients choose doctors.

While there may be value in some of the undertakings, it’s hard to know because of the dearth of information, they say.

Toronto Star File Photo

Medical negligence lawyer Paul Harte argues there's no law that actually prevents the College of Physicians and Surgeons from being more transparent about undertakings.

The lack of transparency translates into a lack of accountability from both physicians and the college, they charge, adding that patient safety and public confidence in the health system are ultimately compromised.

Critics argue more cases should be dealt with through public disciplinary hearings instead, but that would take more time and resources.

The CPSO defends its use of undertakings, arguing they are effective tools to “protect the public interest.” Complaints or concerns with doctors prompt investigations or referrals to the college’s discipline committee, which are resolved through resignations or practice restrictions, thereby keeping the public safe, according to the college.

Undertakings are enforceable. Breaches can result in investigations or disciplinary action being re-started.

The CPSO says it is working to make more information publicly available through an ongoing “transparency project,” but is restricted by legislation in how far it can go.

Lawyers who represent doctors say it would be unfair to publicize unproven allegations.

Doctors and Discipline

AN ANALYSIS of physician profiles on the CPSO’s website, from 2005 to 1014, inclusive, shows that 164 doctors struck deals with the college — outside of the public eye — resulting in restrictions being placed on their practices.

Among them are doctors who can no longer see any patients but still have “M.D.” beside their names, surgeons who can no longer do surgery, and physicians who can no longer prescribe narcotics.

The public register offers no explanation for why the deals were made. There is no mention of allegations or complaints.

A large number of restrictions have been erased from the register. The college posts only those currently in effect and deletes those that applied to physicians in the past.

“The public has no idea what is going on. The public might view a doctor differently if they were aware of the history of undertakings and if they knew why they were there,” says Joni Dobson, chair of the medical malpractice section of the Ontario Trial Lawyers Association.

MEDICAL NEGLIGENCE lawyers decry the “secretive process” of cutting deals and charge that the college is shielding doctors from public scrutiny.

There is no explanation of how the process works on the college’s website.

“Who knows if the deals are reasonable or unreasonable,” says Toronto lawyer Paul Harte, who has been leading the charge for more college transparency. “Without any way of figuring this out, what we have is backroom deals.”

More cases should be handled by the college’s discipline committee to allow greater transparency and enable physicians to learn from the mistakes of peers, he argues.

Discipline proceedings are open to the public and the decisions and written reasons stemming from them are also public.

Public confidence in the health system is at stake when cases that should go to discipline are instead resolved through undertakings, said the Health Professions Appeal and Review Board, which has authority to reconsider CPSO decisions.

HPARB made that comment in a 2012 decision that overturned a college ruling allowing an obstetrician-gynecologist accused of bungling surgeries to resign instead of facing a disciplinary hearing.

“The public’s perception of, and faith in, the medical profession” must be taken into account when making decisions to protect the public interest, the board’s written decision states.

“The alleged egregious breach of the standard of care . . . necessitates a full airing before the discipline committee in order not to bring the administration and provision of medical services in this province into disrepute,” it said.

College spokesperson Kathryn Clarke says undertakings protect the public by mitigating the potential for future problems.

“For example, a doctor may enter an undertaking to restrict his practice where there has been a concern raised about that practice area and the physician is prepared to make an agreement to practise differently, or not practise at all, and the public is protected,” she says.

Clarke takes issue with criticism over the lack of transparency, pointing out that the fact a doctor has agreed to a resignation or restriction undertaking is noted on that physician’s profile on the register.

THE STAR’S investigation identified 36 deals in which physicians in trouble with the college quietly resigned. In exchange, the college dropped investigations into 19 doctors, as well as plans to hold public hearings and prosecute 13 others. (The register does not say what the quid pro quo was for an additional four resignations.)

There are 17 more cases of doctors voluntarily resigning prior to undertaking never to practice medicine again.

Allegations that led to most resignation undertakings are included on the register. Among them: incompetence; professional misconduct; disgraceful, dishonourable or unprofessional conduct; and failure to maintain the standard of practice.

The register provides no context for most of these allegations, though underlying complaints were mentioned for a few: Four doctors were accused of sexual abuse, one of being in possession of child pornography, and one of failing to maintain the standard of practice in relation to 26 patients.

(The Star did not include in its analysis undertakings that the college’s discipline committee took into account when imposing penalties. Details of these deals are made public in hearings. Also excluded were interim undertakings, which restrict physicians’ practices until they appear for hearings.)

TORONTO MEDICAL negligence lawyer Amani Oakley says shining the light of transparency on undertakings is key to reducing medical errors.

“We are not going to get a handle on all these errors if we keep huddling in dark corners, making hush-hush deals with some of the folks who are responsible for these medical mistakes,” she argues.

The 2004 study on patient safety in the Canadian Medical Association Journal found that “adverse events” occur in about 7.5 per cent of hospitalizations. These are unintended injuries or complications resulting in death, disability or prolonged hospital stay that arise from health-care management.

Of almost 2.5 million annual hospitalizations, about 185,000 result in adverse events. Of those, close to 70,000 are potentially preventable. (Some adverse events are the unavoidable consequences of health care, such as unanticipated allergic reactions to antibiotics.)

“We need to air out the problems, examine them in the light of day, and let the victims express their concerns and share their experiences so that other health-care providers can learn from the mistakes of others,” Oakley says.

Dobson warns patient safety is jeopardized when people are denied information that could affect their choice of doctor.

“Those who practise medical negligence know that patient ignorance is not bliss …. There is no reliable place to find information about doctors. Instead, patients must rely on gossip or doctor ratings websites. While both may be entertaining, neither is particularly reliable,” she wrote in a recent blog post on her association’s website.

Critics contend the college prefers to dispose of cases with undertakings rather than disciplinary hearings because the former are expedient. Hearings typically involve big investigations and the expenditure of a lot of time and resources.

“They don’t want to spend the money to go through the legal process of prosecuting through the discipline committee,” charges London, Ont. Lawyer Barbara Legate.

It’s an accusation the college denies.

“The college would virtually always pursue discipline if the physician is still practising and we have the evidence needed to obtain a discipline finding,” Clarke says.

Undertakings are useful when the college doesn’t have enough evidence to successfully prosecute a doctor at a hearing, she said.

Clarke points out that a resignation undertaking may offer more public protection than a licence revocation, the harshest penalty that can result from a disciplinary hearing. Physicians who have had their licences revoked can reapply for them down the road. But that’s not the case if they have agreed to undertakings never to do so again, in Ontario or any other jurisdiction.

Lawyer Lonny Rosen, who represents health professionals in trouble with regulatory colleges, argues that physician privacy must be taken into account when disposing of cases.

“It wouldn’t be fair to disclose unproven allegations, particularly when there is no risk to the public. Just because someone is curious about the underlying facts doesn’t mean that it is in the public interest for them to have that information,” he says.

An undertaking can effectively address potential concerns with a physician, even without admission of allegations, says Rosen. It can be preferential to a disciplinary hearing, which is “a terribly punitive process for the member, the complainant and for any other witnesses. It’s an adversarial system and stakes are high.”

Health Minister Eric Hoskins has said improving transparency in the health system is one of his top priorities. Last October, he ordered all health regulatory colleges to step up efforts to give the public greater access to information.

“The default in our health system should be disclosure,” he said in a written statement, when asked about whether there should be more transparency around undertakings.

Since 2012, the CPSO has been engaged in a transparency project that aims to make more information about doctors publicly available. It is looking at posting more information about undertakings on its register.

Currently, it posts whether physicians have undertakings reflective of “high risk,” namely those that involve resignations or restrictions.

But there are many others the college deems reflective of less risk, which are kept under wraps. It declined to reveal the exact number.

Undertakings reflective of “no/minimal risk,” “low risk,” and “moderate risk” can result from patient complaints or from problems flagged by the college’s own practice assessment program, which sees doctors review the work of peers.

The lower risk undertakings include agreements to comply with a particular college policy or guideline, participate in remedial education, and work with a mentor or supervisor. Monitoring agreements that arise over concerns with physicians’ health are also kept confidential.

The college is looking to make public any undertakings that reflect moderate risk. Clarke says some contextual information about undertakings might find its way onto the register as well.

“If it is something where we think patients would want to know and that it is going to make a difference to them in choosing what doctor they go to, then we want to make that public,” says CPSO president Dr. Carol Leet.

Last year, CPSO staff proposed amending a bylaw to allow more information about undertakings to be posted on the register.

But the college’s governing council nixed that idea last December. Undertakings were dropped from a list of proposed topics to be included in a public consultation on transparency and bylaw changes, which is currently underway.

Now the college is considering a policy change to make more undertaking information public.

Clarke says the college is limited in how transparent it can be, by legislation.

Section 23 of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act) lays out what information should be included on the register. While it does not use the term undertakings, it says the register shall contain “the terms, conditions and limitations that are in effect on each certificate of registration.”

The college contends the legislation precludes it from including some information on the register.

“If, for example, a practice restriction is imposed arising from an investigation or a practice assessment, information stemming (from) those processes are not public by law and, thus, only the fact of the restriction is included on the public register,” Clarke says.

But that’s not how Harte reads it.

“This is an important point because the college has a history of claiming that they are unable by law to be more transparent. More often than not, the decision is a pure policy decision. There is no law prohibiting them from being more transparent,” he argues.

“The underlying premise here is that there should be transparency, above all. Since we can’t evaluate whether the college is making appropriate decisions, it’s difficult to know if they are really in the public interest.”

With data analysis by Andrew Bailey.

Theresa Boyle can be reached at tboyle@thestar.ca or (416) 869-4915.

More stories on undertakings

Examples of doctor restrictions

Reasons for restrictions on Ob/Gyn not posted on overseers website

Woman seeks hearing for surgeon who removed normal ovary

Doctors who supervised disgraced pathologist Charles Smith never faced disciplinary hearing

Source: http://www.thestar.com/news/gta/2015/02/28/backroom-deals-keep-problem-mds-out-of-the-public-eye.html#