TORONTO — In an unusual case of cross-border medical malpractice, the Alberta Health Ministry is suing an Ontario doctor whose alleged misdiagnosis of a brain tumour led to the patient needing extensive – and costly – treatment in the Western province.
Alberta’s top court recently gave the green light to the lawsuit – jointly launched with the patient and her husband – after a lower court said judges there had no jurisdiction to hear the case.
The earlier ruling noted that the alleged error occurred in Ontario. But the Court of Appeal said Martina Gulevich’s tumour grew and became cancerous after she had moved to Alberta, while doctors initially relied on the wrong diagnosis to treat her.
Jurisdiction lies in Gulevich’s new home, not in Ontario where the radiologist failed to notice a three-centimetre tumour on her CT scan, it said.
“The province most substantially affected by the (Ontario doctor’s) activities and its consequences is Alberta,” ruled the court. “Alberta … has also incurred significant cost.”
The case underscores a little-known phenomenon in malpractice law: provincial governments suing physicians — often the same ones whose fees and malpractice premiums they pay – for causing a patient injury and triggering more use of medical resources.
“It’s actually quite common,” said David De Vere, an Edmonton malpractice lawyer not involved in the case.
But there is reportedly a movement afoot to change the odd situation.
The Canadian Medical Protective Association (CMPA) — the non-profit body that provides liability insurance to virtually all Canadian doctors — has apparently lobbied to have physicians exempted from such lawsuits, said De Vere.
The CMPA’s offices were closed last week and a spokesman could not be reached, but De Vere noted that not only do provinces pay most doctors, they also subsidize part or all of their CMPA premiums.
“The argument as I understand it is that most of the funding of the CMPA is coming through government channels, either directly or indirectly through physicians,” he said. “Therefore, ‘why should we be spending all this money to pay back the government, who’s funding us in the first place?’”
In Ontario, malpractice suits often make a claim for treatment expenses resulting from an alleged misstep, while not actually naming the government as a plaintiff, said Barb MacFarlane, a Toronto lawyer.
But sometimes the province takes action itself, she said.
“Medical expenses associated with cancer treatment can be significant,” said MacFarlane. “If the medical expenses were incurred because cancer was left to grow and spread due to negligent conduct, the province may want to bring a lawsuit.”
In Alberta, the ministry recovered $114 million in health costs from third parties found legally liable for injuries in 2014-15, though most of that came from insurance companies and was unrelated to malpractice, said Timothy Wilson, spokesman for Health Minister Sarah Hoffman.
After experiencing headaches and vision problems in 2007, Gulevich underwent a CT scan ordered by her Toronto-area family doctor, according to the Court of Appeal decision. A Mississauga, Ont., radiologist, Dr. Murray Miller, reported back that the results were normal.
Gulevich moved to Fort McMurray, Alta., in 2008, as her headaches returned and steadily grew worse. Her new doctor finally ordered more diagnostic scans, which in 2011 revealed she had a malignant brain tumour. She had surgery, followed by “ongoing, intensive cancer treatment,” said the court.
Experts whom Gulevich later retained looked at the 2007 image and saw what they called a “readily identifiable,” three-centimetre mass at the same spot — the beginnings of her tumour. Had the diagnosis been correct at that time, Gulevich could have had surgery before the tumour became cancerous, they said.
The allegations have yet to be proven in court.
Philip Tinkler, lawyer for the patient and the province, said he did not have permission to comment on Gulevich’s condition currently.
The appeal court decision on the jurisdictional issue was important, because his clients would otherwise have had to drop the suit, or file one in Ontario, making the process logistically more challenging, he said.