Shirley Shannon, a New Brunswick woman who was sexually abused by her doctor and then denied money from a fund that compensates patients harmed by negligent medical care, has lost her court fight to force the fund to pay.
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But Eugene Mockler, who is Shannon's lawyer, says the ruling means New Brunswick doctors do not have the insurance coverage they, their patients and the province think they do.
"If you were the subject of serious malpractice you would probably not be too happy to be told, 'Gosh the insurance I thought the doctor had or is supposed to have, he doesn't have,'" said Mockler
Shannon has been fighting for years to have the Canadian Medical Protective Association (CMPA) pay a judgement she won against former New Brunswick psychiatrist Dr. Kwabena Agyei Akuffo-Akoto
Shannon was manipulated into sexual acts by Akoto in the mid 1990s who then threatened to institutionalize her if she exposed the wrongdoing.
Shannon eventually attempted suicide in 1997 by steering her car into an oncoming transport truck, sustaining serious injuries.
She and her husband obtained a judgement against Akoto in 2004 for nearly $600,000 in damages and court costs. Akoto fled the country without paying and although he had mandatory medical malpractice coverage with the Canadian Medical Protective Association (CMPA), the organization refused to pay the Shannons on his behalf.
It cited a long-standing policy not to compensate victims of doctor sexual abuse because it is a criminal act, not medical malpractice.
Madame Justice Tracey DeWare ruled the CMPA is not an insurance company and so cannot be made to pay the Shannons for the judgement against Akoto. She found the CMPA exists primarily to defend doctors against lawsuits and professional misconduct complaints — not to protect the public.
"The CMPA and its members is an association to benefit physicians and only physicians. There is absolutely no consideration of any other persons," wrote DeWare in dismissing the claim.
"The Shannons through no fault of their own suffered significant harm as a result of the actions of Dr. Akoto ... While I sympathize with the Shannons' difficult situation, the Court is not in a position to order a corporate entity to be held responsible for a judgement upon which they have no legal obligation to respond."
N.B. doctors may not be properly insured
But Mockler says the judgement creates a problem in New Brunswick because provincial law requires doctors to carry liability insurance and virtually all meet that requirement by belonging to the CMPA, an organization the court has now concluded does not provide insurance.
"The question arises whether or not doctors who are supposed to be insured are properly licensed if they are simply relying on CMPA membership," said Mockler.
Mockler has launched a second lawsuit against the New Brunswick Medical Society, the New Brunswick College of Physicians and Surgeons and the province's hospital corporations over their joint acceptance of a doctor's CMPA membership as proof of adequate liability insurance.
He says DeWare's decision that the CMPA is not an insurer and does not provide liability insurance exposes how unprotected doctors and the public are.
"Our second action was for a declaration that doctors in the province of New Brunswick are operating illegally," said Mockler. "That action may not now be necessary."
Justice DeWare acknowledged widespread misunderstanding among New Brunswick doctors and government officials about physicians being insured by the CMPA, when they are not and herself suggested the law requiring coverage may not be being followed.
"Most people, including member physicians assume that the CMPA is indeed an insurance company and that they consider the fees paid to the CMPA to be insurance premiums," wrote DeWare.
"It is certainly true that there does appear to be on its face, to be a disconnect between the licensing requirements under the Medical Act and the coverage provided by the CMPA."
In Ottawa, the CMPA issued a statement applauding the decision, especially its core finding that the organization does not provide doctors with insurance.
"The CMPA is pleased with the Court's decision to dismiss the Plaintiffs' action as against the CMPA, and in particular the Court's finding that the CMPA is not an insurer and is not obliged to make payments on behalf of members to plaintiffs awarded damages based on the allegations advanced in this case," said the statement.