THE BLOG

Hospitals Can Use Your Tax Dollars to Shut You Up

11/08/2013 12:38 EST | Updated 01/23/2014 06:58 EST

In Ontario, cancer patients are being denied treatment because the provincial health insurance plan won't cover a drug that could prolong their lives. Some claim the high cost of the medication is the main reason the government won't approve its use. But in the wake of the failed Supreme Court of Canada appeal by Sunnybrook Health Sciences Centre to defend the efforts of Dr. Brian Cuthbertson and Dr. Gordon Rubenfeld to withdraw life support in the Rasouli case, no one is even asking how much that misguided legal marathon cost in taxpayer healthcare dollars. Scarce taxpayer healthcare dollars.

And we are not likely to find out, since the law protects hospitals from having to disclose anything about legal costs incurred during actual or even potential litigation.

One of the great unreported stories of the Canadian healthcare system is the avidity of hospitals to use limited taxpayer funds to hire lawyers, with the acquiescence of political leaders, in an effort to evade accountability or to silence families and others who raise inconvenient questions. And they are untethered by any concept of moral hazard in spending those public funds.

Governments have long provided financial support to doctors to help defray the costs of their malpractice insurance. This has helped to create a legal monolith known as the Canadian Medical Protective Association that has few parallels in any other jurisdiction. With a war-chest of more than $3 billion, the fund is virtually impossible for ordinary families to win against. Its driving philosophy, some experts have observed, is that it would rather spend $100,000 defending a malpractice claim than pay out $5,000 in settlement. Only an organization that can dig deep into the pockets of taxpayers could afford to have such an economically absurd principle as its guiding force.

But now, even when families don't take any legal action, a hospital's publicly funded lawyers are not far behind. I know this all too well. After it became apparent that my mother suffered terribly from neglect and a staggering number of medical errors during a lengthy hospitalization, we sought answers from the hospital's administration and board. When they realized we were not satisfied with their stock platitude that my mother's care was "appropriate," the hospital hired one of the biggest law firms in Canada. That unleashed a lengthy and most unpleasant experience, especially since we didn't have a lawyer and had never even suggested we were considering commencing litigation.

In another case, lawyers for Ajax-Pickering Hospital threatened to take legal action against a media outlet that was covering family complaints about the treatment of a 69-year-old patient. CHEX TV had aired part one of a two-part series on the story. Part two was never shown, after the hospital's huge high-priced law firm, Borden Ladner Gervais, got to work. The hospital also retained them in a move to remove the patient's wife as substitute decision maker. She, of course, had to pay her own legal costs.

Just last spring, some members of a northern Ontario community faced an action for defamation by the local hospital following their criticisms of some of its policies.

Ontario's minister of health Deb Matthews apparently sees nothing wrong with hospitals using precious public funds in this manner. While governments and public agencies are prevented under the Canadian Charter of Rights and Freedoms from suing for defamation because of the effect such action could have in stifling debate on important public issues in a democracy, there is no similar prohibition for public hospitals. Few issues are more important to Canadians than the quality of their healthcare system.

Even just the threat of legal proceedings made by a hospital can quickly provide it with a strategic advantage. Recently, Ontario's Ombudsman ruled that all a hospital need do is hint that it is contemplating legal action against a patient or family in order to bar any government agency from reviewing complaints about the quality of the care provided. No action actually needs to be commenced nor any court papers filed. Merely the insinuation is enough to throw a wrench into an already sputtering and unreliable system of hospital accountability in Ontario.

Meanwhile, in the U.K., health secretary Jeremy Hunt is moving forward with a major policy shift that would end the ability of hospitals (and government agencies providing oversight) to refuse to investigate complaints because the patient or family has launched a lawsuit. Under the previous policy, if a patient or family told the hospital they were just seeking legal advice, that was enough to derail any investigation. In such a political climate, one suspects there would be little tolerance for the NHS paying hospital lawyers to threaten defamation actions against patients and family members.

The use of publicly subsidized lawyers, often from Canada's biggest and most expensive law firms, to defend the all too common hospital culture of delay, denial and deception, is part of what I call the war on patients in the healthcare system. It is draining valuable dollars away from patient care. It thwarts any concept of transparency and accountability that is fundamentally important to patient safety. And it is a moral outrage that too many patients and families, already having faced the trauma of a hospital experience, should never have to suffer.

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