Court deems MUHC rules capping number of deliveries 'discriminatory and invalid'

Four doctors — Alice Benjamin, Robert Koby, Dawn Johansson and Andrew Mok — took legal action against the hospital last October to protest a distribution of delivery quotas that they said favoured the MUHC’s on-call obstetricians.

Lawyer for plaintiffs calls Quebec Superior Court judgement a victory for patients' rights

Pregnant women were referred to other hospitals if their obstetrician at the Royal Victoria Hospital had reached their delivery quota for the month. (Pixabay)

Four obstetricians of the McGill University Health Centre are celebrating a Quebec Superior Court judgment that found several elements of the Royal Victoria Hospital's delivery quota rules to be "discriminatory and invalid."

The four doctors — Alice Benjamin, Robert Koby, Dawn Johansson and Andrew Mok — took legal action against the hospital last October to protest a distribution of delivery quotas that they said favoured the MUHC's on-call obstetricians and put their patients at risk.

Rather than joining the on-call pool, whose physicians work in shifts and are responsible for all deliveries during their rotation, the four plaintiffs specialize in high-risk pregnancies and only attend to them.

Under rules introduced in 2016 to streamline services and better emphasize tertiary and quaternary care at the MUHC's Glen site, the on-call pool was given a group quota of 2,400 deliveries per year, which the 13 doctors were free to portion among themselves.

A cap of 185 deliveries during each 28-day fiscal period was also introduced.

By contrast, the four plaintiffs were assigned an annual quota of 700 deliveries per year that was fixed at 175 deliveries each. That was further limited to 14 deliveries each in any 28-day fiscal period, and any deliveries over that monthly quota had to be performed at St-Mary's Hospital or another health-care institution.

In their lawsuit, the four specialists claimed this last rule forced patients "to experience undue stress when they announce last-minute changes at a critical time to them."

All four plaintiffs ended up going over their fiscal-period quota set by the MUHC, resulting in warning letters from the MUHC and a threat of two-week suspensions.

'Rules clearly discriminatory'

In his judgment, Justice David Collier found for the plaintiffs, ruling that the MUHC "cannot adopt rules that treat similarly placed persons differently" unless authorized to do so by the province. In this case, he said that authorization was not present because the applicable law "is silent regarding delivery quotas."

Collier said "there was no doubt that the MUHC's obstetricians are treated differently and unequally under the Rules which granted preferences to the on-call group that are not available to the Plaintiffs."

The MUHC introduced the delivery quotas in order to streamline services and better emphasize tertiary and quaternary care. (Graham Hughes/Canadian Press)
Collier said the on-call pool's group quota allowed some doctors "to perform more than 175 deliveries a year, and exceed the fiscal period quotas, with impunity."

"In these respects, the Rules are clearly discriminatory, despite the MUHC's assertion that an equal number of deliveries has been allocated to each obstetrician," the judgment reads.

Whereas the MUHC argued that the on-call pool quota was critical to the survival of the in-house system, Collier said the quota was more a case of "protection of the in-house physicians' incomes."

The judgment also declared the administrative sanctions invalid and removed them from the plaintiff's file, and awarded $5,000 in moral damages — a far cry from the $50,000 they were seeking.

A victory of patients' rights, lawyer says

The plaintiffs' lawyer, Christine Kark, called the judgment a victory for both her clients and for patients' right to choose.

"It's in the Health Act that a patient has the right to choose her treating physician," Kark said.

"It's unfair that some of the patients who had the four plaintiffs for physicians had to deliver at St-Mary's while patients of doctors who are part of the in-house, on-call group didn't have to go to other hospitals."

Kark said the quotas had the effect of forcing high-risk patients who had been booked for months to deliver at the MUHC, which has specialized tertiary care, to give birth elsewhere.

"Those patients need the tertiary care," she said. "[The MUHC] created a very stressful situation for patients and my clients."

MUHC evaluating next steps

In a statement emailed to CBC News late Tuesday, spokeswoman Patricia Vasquez said the MUHC acknowledges the court's ruling and is "conducting an internal analysis to evaluate our next steps."

She added that the MUHC remains committed to prioritizing high-risk pregnancies.

"The MUHC's clinical plan calls for 3,000 deliveries per year while increasing the volume of high-risk pregnancies and collaborating with network partners for low-risk pregnancies," the statement said.

"The prioritization of high-risk pregnancies is part of the MUHC's mandate as a tertiary and quaternary care academic health centre."

About the Author

Stephen Smith


Stephen Smith is a journalist with CBC Montreal.