Originally published in The Ottawa Citizen December 24, 2002
Original Title: A Witch Hunt by Any Other Name

A recent column by Christina Spencer, John Robson’s radio commentary on CFRA and Citizen Editorial eloquently criticized the Quebec government’s abuse of legislative power over its physician population. In Quebec, all physicians who have worked in an emergency room in the previous four years will now be forced to work in them whether they wish to or not regardless of their qualifications to do so. Should they refuse they will be slapped with a $5000 daily fine.

Lest we direct all our disdain and ire towards the Quebec government’s draconian physician indentured slavery laws, we need not look further than our own backyard.

First, bear with me as we travel back to 1656 London, England. Thomas Ady in his Biblically-based book entitled A Candle in the Dark bravely criticized witch hunts as a scam “to delude the people.” The witchmongers explained any strange event or anything out of the ordinary was the fault of witches “else how should things be, or come to pass?”

Once accused of being a witch, for any reason whatsoever, the game was over. This scam quickly became a means to generate revenues for the “investigators”. All costs were borne by the accused and her family for the trial, investigation and execution materials (wood, tar and hangman’s rope). Each member of the prosecuting tribunal received a bonus for each witch burned. The bureaucracy flourished and grew to serve this industry. The remaining property of the accused was divided between Church and State all legally and morally sanctioned by the Vatican. The accused had no rights, no defense and no hope.

Physician’s billings to OHIP are monitored by a computer program. This program will digest and average out the number of specific fee codes a family doctor or specialist should bill in a year. Any significant deviation from this “norm” is flagged. These deviations can occur because of different patient demographics, location of practice (rural North versus Urban setting), the physician’s area of interest or fraud.

Whatever the reason the general manager of OHIP may decide to send the flagged physician a letter stating that they believe he/she has been overbilling for several years (for arguments sake let’s say $100,000). If the physician wishes to defend themselves and submit to a full review, he/she bears all the costs of the proceedings. The money is returned to the physician if he/she is exonerated; a rare event.

Even if only one of the thousands of billings reviewed is deemed in error, the physician will have to pay all legal costs. Some of these errors can be due to the use of the wrong billing code. For example, mental health counseling uses a K005 code while psychotherapy uses K007. Both pay exactly the same amount but the physician will have to reimburse OHIP if used incorrectly. The computer will flag the physician who it deems is using too many of one of these codes even though he/she indeed provided the service and is not overbilling.

However, should an offer of say $80,000 be made to settle they may drop the file and set their sites on someone else. Should you not make an offer they cannot refuse, the general manager refers the matter to the Medical Review Committee (MRC).

Part of the College of Physicians and Surgeons of Ontario (CPSO), the MRC comprises 12 practising physicians and six public members. They will audit the patient files of the physician under investigation. They do not investigate medical fraud as these cases are turned over to the Ontario Provincial Police Anti-Rackets Squad by OHIP. They are not commissioned to be a judiciary body. They do not have to listen to evidence, legal arguments or expert opinion.

In 1996 the Government of Ontario enacted changes to the existing regulations to increase the number of audits by the MRC and subsequently, the amount of money collected. Between 1998 and 2001, hundreds of doctors have been audited. They were ordered to repay $16.5 million of allegedly overbilled services. There was no proof of fraud or even overbilling, just the belief that this was so.

Once found “guilty” the physician must pay back OHIP within one year of the MRC’s decision all overbilling with interest and the MRC and OHIP legal costs (about $15,000 to $25,000). It makes no difference if the doctor appeals. He/she must pay now or the physician’s billings are withheld at source.

Should the physician not have sufficient funds to pay the penalty, their assets can be seized. To add insult to injury, the MRC can reaudit the physician for a different billing period for the same perceived infraction.

Although not burned at the stake and physically tortured, physicians seem to be subjected to the same bureaucratic persecution process by the MRC and general manager as were the “witches” of England. Physicians subjected to this process are demoralized, ashamed and depressed; their spirit all but vapourized.

The law firm Tremayne-Lloyd Partners LLP, advocates for health law is trying to bring to light the injustices of this process. There may be some changes to the MRC in the near future as both Ontario Health Minister Tony Clement and Ontario Medical Association President Dr. Elliot Halparin review this travesty of justice.

By all means prosecute those physicians who cheat and commit fraudulent acts. We already have a system to do so. It is called due process and courts of law. The last time I checked physicians have not traded in their stethoscopes for brooms.

Thank you to Dr. Doug Mark, President of the Coalition of Family Physicians for this information.

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© Dr. Barry Dworkin 2002