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COFP President Speaks Out on Medical Review Committee

The following Op Ed appeared in the July 30, 2002 issue of the Medical Post…

Time to Review the Medical Review Committee

Imagine the following scenario: You're sitting alone in your office taking a short break between appointments when a letter catches your attention. In it, you are informed—although no one has come up with the actual proof just yet—it is believed you have been systematically overbilling "the plan" for the past number of years, to the tune of $100,000 or more. Should you wish to submit this matter to a full review, you eventually discover, to your horror, you will be required to pay all their costs and your own, unless you are completely exonerated (which, by the way, very rarely happens). However, there is another option. If you make an offer to settle, such as paying them $80,000 to $90,000, they may drop the matter altogether and forget about proceeding any further.

Sounds like something straight out of Kafka, doesn't it? And yet, every year in Ontario, hundreds of doctors find themselves dealing with the reality of this situation. In fact, since 1996, when the provincial government quietly began to make significant regulatory changes, both the number of doctors being audited by the Medical Review Committee (MRC) and the amounts being collected have increased dramatically. How dramatically? The facts speak for themselves. Between 1998 and 2001 alone, the MRC, working closely with the general manager of OHIP, has audited several hundred doctors and ordered them to repay close to $16.5 million allegedly overbilled.

So, just who is the Medical Review Committee and what do they do? In a nutshell, the MRC is a committee of the College of Physicians and Surgeons of Ontario (CPSO) and is comprised of both practising physicians and public members—a total of 18 physicians and six members of the public. When directed by the general manager of OHIP, members of the MRC provide audits of patient files submitted by the doctor under investigation.

It is important to note, however, the MRC does not investigate medical fraud. These cases are referred directly to the Ontario Provincial Police by OHIP.

Interestingly enough, members of the Medical Review Committee have increasingly come to find themselves between a rock and a hard place due to those aforementioned regulatory changes. The reason for this is really quite simple. The MRC is a neutral body which does not choose who is to be targeted for an audit. It is not a court of law and has no inherent jurisdiction. As well, the MRC is not required to listen to evidence or expert opinion, and is not bound in any way by legal arguments. Accordingly, it is essentially powerless to offer assistance to any doctor once he or she has been caught in the devastating grip of the MRC process.

The end result is that, by accident or design, these new regulations exploit the weaknesses of the MRC process and call into question whether any doctor can get a fair hearing in Ontario anymore.

Just listen to how the following regulatory and policy changes skirt democracy:

The provincial government now requires OHIP receive all monies owed to it, including costs and interest, within one year of a recommendation by the MRC, regardless of whether the individual doctor appeals. As well, the provincial government has passed a regulation requiring the doctor under investigation to pay all costs incurred, not only by him or herself, but also by OHIP and the MRC. What this means is, unless completely exonerated, a doctor will typically be on the hook for an additional $15,000 to $25,000—all for the privilege of having a fair hearing. If all that wasn't bad enough, new regulations also require a doctor, once found guilty, to pay interest at a government-set rate on all outstanding amounts deemed owed to OHIP as the result of an MRC investigation. Remarkably, this means interest is calculated retroactively and must be paid right away, even if an appeal is pending.

You have to wonder where the fairness is in a process where a person is deemed guilty and then forced to pay out of their own pockets to prove their innocence.

Fortunately, there may be hope on the horizon.

A number of health law advocates, such as law firm Tremayne-Lloyd Partners LLP, have been working diligently to bring these issues of fairness and due process to the attention of both the medical profession and the provincial government. Fortunately, both Ontario Health Minister Tony Clement and Ontario Medical Association President Dr. Elliot Halparin seem to be listening and have indicated the time has come to do something about the MRC process.

Let's hope the OMA and the minister of health are truly serious about addressing this travesty of justice, and that doctors can again go about practising medicine without living in fear of having their lives turned upside down by a patently unfair MRC process.

Douglas Mark is the president of the Coalition of Family Physicians of Ontario. He can be reached at dmark@cofp.com.

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