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Medical Malpractice Lawyers are not Always the Answer

By MObradovich Apr 22, 2017 Canada
A guide to the patient complaint process in the province of Ontario when using medical malpractice lawyers is not practical
Medical Malpractice Lawyers are not Always the Answer

Medical Malpractice Lawyers are not Always the Answer

Medical malpractice lawyers are required for cases resulting in serious injury and economic loss. These are complex cases that require expertise as well as the expenditure of considerable time and expense. The cases take time to complete and also involve some risk for all the participants.

The litigation process is not suitable for minor injury cases or situations involving quality of service complaints. Fortunately in the province of Ontario that are alternative mechanisms that can address patient concerns.

The Patient Ombudsman

The office of the Patient Ombudsman was created to respond to complaints from patients regarding care provided by public hospitals, community care access centres (CCAC) and long-term care facilities.

Patient Ombudsman Process

The purpose of the Patient Ombudsman is to help meet the needs of patients who have not had their concerns resolved through existing complaint mechanisms. In effect it will provide an independent and impartial  third party review of the patient's complaint if it was not resolved to the patient's satisfaction. The Patient Ombudsman is tasked with investigating these patient complaints. Following an investigation of the complaint the Patient Ombudsman may make recommendations to the involved health sector organization.

Early Resolution Specialists

At a reception the Patient Ombudsman Christine Elliott outlined a key aspect of the complaint process. Once a complaint is filed with her office an Early Resolution Specialist will be appointed to handle the complaint. The Early Resolution Specialist will identify what the patient wishes to achieve through the complaint. Resolution suggestions will be offered to both the patient and the health sector organization. That dialogue will continue in an attempt to resolve the complaint. Hopefully Early Resolution Specialists can arrange for complaint resolution without the need for time consuming investigations.

We are often contacted by patients who have valid concerns about the level or quality of healthcare service they are receiving. In many cases legal action is not a suitable remedy. It is hoped that the office of the Patient Ombudsman will be helpful in these situations.

More information about the office of the Patient Ombudsman and the complaint process may be found at its website.

Primary Patient Care Complaint Mechanisms

It is important to note though that the patient must first seek to have the complaint addressed by the public hospital, long-term care home or community care access centre. In the case of a hospital patients should contact the hospital's Patient Advocate or Patient Relations Office.

In certain cases the hospital representative will arrange a meeting with the healthcare team responsible for the in hospital care. At the meeting the healthcare providers will answer questions, explain their actions and clarify aspects of the treatment. Usually managers will also be present. The meeting may reveal shortcomings in the hospital processes. This may then lead to changes in the hospital procedures and guidelines.

Community care access centres have a formal complaints process and should be contacted directly. Complaints about long-term care facilities can be made to the Long-Term Care Action Line at 1-866-434-0144.

The Patient Ombudsman will not deal with complaints about individual health professionals. Those complaints are made to the governing College of the particular regulated health professional. For doctors this would be the College of Physicians and Surgeons of Ontario. Complaints about nurses are filed at the College of Nurses of Ontario.

The College of Physicians and Surgeons

If your treatment or care by an Ontario physician did not meet the high standards set for the medical profession, then the College of Physicians and Surgeons of Ontario (CPSO) may be able to help. The CPSO is the legally appointed governing body of doctors in the province of Ontario. Accordingly in all that it does  the College must act first and foremost in the best interest of the public.

One of its most important responsibilities is to respond to concerns and investigate complaints from members of the public about doctors.

All complaints must be submitted to the CPSO in writing or another acceptable form. The College does have complaint advisors that will to speak to patients regarding their concerns. The advisors can discuss specific circumstances, provide important information regarding College policies and health legislation, and help complainants better understand the complaints process. The complaints package is available at the College’s website but will be mailed out on request.

The complaint should include the doctor's name and address, a description of the events that led to the complaint, the date and location, and any other information that may help the College in its review. The complaint will be provided to the named doctor.

The College will obtain any relevant medical documentation required to rule on the complaint. The doctor named in the complaint will provide a written response to the complaint.

Once the College has gathered all of the needed information it will meet to rule on the complaint. The review is a paper review only. Neither the complainant or the doctor attend the review committee meeting. The decision will be based on the complaint, the doctor’s response and the medical and other documents obtained during the investigation phase.

When all the information has been reviewed, the review committee will decide to do one of the following:

1. take no action, if the doctor's conduct or the care provided was appropriate;

2. issue advice or a recommendation, if the Committee believes the doctor would benefit from some guidance to improve his or her conduct or future practice;

3. request that the doctor participate in self-study, with assistance available from the College in developing an educational plan with follow up from the College to ensure the physician has addressed the needs identified;

4. require the doctor to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned regarding specific aspects of his or her practice, professionalism or conduct  A summary of the decision to caution is posted to the doctor’s profile on the public register. (This information is public for investigations initiated on or after January 1, 2015);

5. request or accept the doctor's undertaking to improve his or her practice or to restrict his or her practice, which may include education, supervision, and/or monitoring, and may require further evaluation upon completion. The College monitors compliance and the terms of the undertaking are posted to the doctor’s profile on the public register;

6. direct the doctor to complete a specified continuing education remediation program in order to improve skills or change practice. The College monitors compliance and a summary of the decision is posted to the doctor’s profile on the public register. (This information is public for investigations initiated on or after January 1, 2015);

7. request or accept an undertaking from the doctor to resign and to never apply for reinstatement, which is posted to the doctor’s profile on the public register;

8. refer the doctor to a panel of the Committee if there are concerns about the doctor's health that may be affecting her or his ability to practise;

9. refer the concerns about the doctor to the Discipline Committee;

10. decide not to investigate because the complaint is frivolous, vexatious, made in bad faith or is an abuse of process.

There is no time limit within which the complaint must be filed. Nevertheless the College recommends that concerns or complaints be made as soon as possible after the event. The earlier a complaint is received, the fewer problems are encountered in the investigation. For example, it is more likely that relevant documents still exist, witnesses can be more easily located, memories have not faded, and evidence is not missing.

Health Disciplines

Each of the health disciplines are governed by regulatory bodies. Typically these are called Colleges. Examples are the College of Nursing and the College of Chiropractors. Each of these colleges have complaint procedures similar to the process we have described for the College of Physicians and Surgeons.Information concerning the complaint process of each of these regulatory bodies may be found on the website of the particular college.

About the Author

Miles Obradovich is a medical malpractice lawyer in Toronto Ontario with over 35 years of experience. He is the founder of Obradovich Law which has a practice focus on medical malpractice and catastrophic injury cases. He is a speaker and author for the Law Society of Upper Canada, the Ontario Bar Association, the Ontario Trial Lawyers Association and the American Association for Justice.