No Accountability or Transparency in Ontario--Dr. Bert Lauwers/Dr. Andrew McCallum/Dr. Laz Klein--Part Twenty-One

 A PRIMER ON THE LAW OF DEFAMATION IN ONTARIO
"Defamation is comprised of two subcategories between libel (libel refers to written defamatory statements)and slander(broadcasting of spoken defamatory words)

Proving a Claim in Libel and/or Slander
"the statement must be false!"

Defences to Actions in Libel and Slander
TRUTH--
"The first defence is the defence of truth. The defence can be made that the statement was truthful and therefore there was nothing false about the statement, meaning therefore, that the statement was not defamatory."

FAIR COMMENT--
"The second defence to an allegation of libelous statement is that the statements made were made as a fair comment. The defence of fair comment would be considered by the Court in situations where, by looking at the statement made, the facts and the situation, a conclusion can be made that the statements made were in actuality a fair commentary on the situation at hand and that the comments were fair and were not malicious."

QUALIFIED PRIVILEGE--
"The defence of qualified privilege arises normally in situations where the individual publishing these statements will escape any liability if it can be proven that the public good could be furthered in open debate. 
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ONTARIO, CANADA GRANTS SURGEONS/DOCTORS

“MEDICAL IMMUNITY” 

  The above title for this article is the absolute truth!  After my seven plus year adventure searching for true transparency and accountability within Ontario’s health care system, I have come to accept this.  The very institutions that supposedly protect patient safety are, in fact, covering up “adverse events” including deaths and harboring negligent surgeons and doctors.   I am confident any Ontario citizen dealing with these institutions would agree. 

To provide some brief background, my daughter Terra Dawn went to the hospital for a scheduled day surgery to remove a tumor from within her abdomen.  Now the procedure was to be done in a minimally evasive manner. (Laparascopic Surgery).    The surgeon discovered the tumor was attached to the colon.  He decided to change the procedure to open abdominal surgery to remove the tumor and perform a colon resection.  Unfortunately, for my daughter, he did so without administering the mandatory “antibiotic prophylaxis”.  In fact, no antibiotics were administered at any time prior, during, or post operation even when the abdominal infection became very infected leading to all the staples being removed and test results indicating “many gram negative bacilli”.   My daughter bled to death less than 12 hours after being released from this hospital as the colon resection broke down due to “necrosis of the tissue”.

The hospital took five months to provide me with the hospital records.  I met with five administrators whereby they entered the room carrying only two blank scratch pads.  They did not answer one single concern I addressed to them, except to defend their in-hospital mortality rate which was the second highest in all of Canada.  After a three-year ongoing conversation, the COO of the hospital finally admitted there was no record of the antibiotic prophylaxis being administered.  Of course, they would not provide any documentation I could use against the surgeon.  They would not provide me with a copy of the internal hospital investigation. But, I do appreciate the hospital creating a memorial garden outside the main entrance with a plaque in Terra’s name.  Thus, this is the first example of “medical immunity” given to the surgeon by a government funded (taxpayers’ dollar) institution.

The local investigating coroner informed me the Chief Coroner’s Office of Ontario had deemed the death unusual and was going go look into the matter further.  I had looked forward to this until they rendered their decision.   The motto for this office is “We Speak For the Dead To Protect The Living”.  I would discover, after many years, this to be a fallacy.  When it comes to investigating a death associated with medical care or lack there of, this Office will ignore the evidence even when pointed out to them.

This office denied my request for a public inquest, (they have never granted one involving a hospital), denied my request for my daughter’s death to go before the Patient Safety Death Panel, denied my request for an Eastern Ontario Regional Coroner’s Investigation, denied Mr. Robert Runciman my MPP, presently a Canadian Senator, to reconsider the public inquest, denied my request to assemble a Chief Coroner’s panel to look into Deputy Chief’s decisions, denied a request from the Ontario Ombudsman’s Office to meet with me and address my concerns and finally denied an Ontario Provincial Police Detective’s request to meet with me and address my concerns.  No, instead they used their persuasive authority to contact the Toronto Metropolitan Police to investigate my e-mails.  When the O.P.P. detective came to my home, he stated that the Chief Coroner’s Office had cut and pasted and taken my e-mails out of context.  This was just an attempt to silence me!  Did this stop my e-mailing and faxing?  No!  Behold, twice more I had to meet with this O.P.P. detective at the station for video taped interviews!  Nothing even close to the laying of charges; it was merely a continued attempt to silence me.  Gee, has this Office ever heard of “block sender” so they wouldn’t receive my e-mails?  No, they wanted to continue to know what I might be up to.  I found out later with the co-operation of the Chief Coroner’s Office this hospital department was shut down temporally in 2010 due to several (5 or 6) deaths similar to my daughter’s –bleeding to death.  This is the second example of a government funded (taxpayers’ dollars) institution granting “medical immunity” to this surgeon.

The third institution is not funded by the Ontario government but is supposed to be overseen by the Ministry of Health.  C.T.V.’s “W-5” and the Toronto Star have in the past exposed the failings of the Ontario College of Physicians and Surgeons.  They have been granted self-regulation and Ontario citizens are to go to them if they have a complaint against a doctor/surgeon.  I did and they appeared very sincere and helpful, but only to make my complaint weaker.  They suggested I rewrite my complaint so it would be more concise and actually did it for me and asked me to consent to the rewrite.  What a mistake that was, easier for them to dismiss, but fortunately when I appeal it, I include my original.  This College rendered its first decision after seven months.  I appealed it and the decision was sent back.  It then took more than 400 days to receive the second decision that I immediately appealed.   The third decision was done in record time and of course I appealed this.  At this time it should be noted that no Canadian doctor/surgeon would offer up an opinion with regard to the care of another Canadian doctor/surgeon.  So, to prepare for all of my appeals, I sent more than 3,000 e-mails to surgeons throughout the world.  I received more than 100 responses providing me with valuable expert opinions.  This was a complete waste of my time as all institutions ignored these opinions.  It should be noted that the College and their own expert stated in the second decision with regard to the mandatory antibiotic prophylaxis that the surgeon “neglected” this and that this was an “oversight”.  Being a teacher, I am quite aware the noun form of neglected is “negligence” which is exactly what I was maintaining.  If one goes to the College website, the surgeon’s record would be spotless, not even the lesser punitive warnings will show up.  The College only acts if there is a police investigation involved, just look at their decisions over the years. (sexual impropriety, selling or using illegal drugs, defrauding the government and oh yes, I did discover that a doctor was severely reprimanded for prescribing drugs to his neighbour’s dog.  Of course the complainant for this was the College of Veterinarians)

Now, we have the third institution entrusted to protect patient safety opting to protect a surgeon’s reputation and grant this surgeon “medical immunity”

One may expect, as I continue my quest for transparency and accountability, I could depend upon two institutions funded by the Ontario government (taxpayer’s dollars) and created to give citizens another avenue to pursue should he or she feel the College of Physicians and Surgeons had erred and/or the Chief Coroner’s Office had erred.

These accountable institutions are, in fact, created to give the illusion that an Ontario citizen will not really recognize the mirage until they have closely examined it. 

The Health Professions Appeal and Review Board is what I turned to next.  Their mandate is to look into College decisions when a complainant submits a request within 30 days of receiving the College’s decision.  I have made three requests and submissions to this board and had moderate success with the first two appeals and was totally bewildered by the third appeal decision.  This Board can only examine to see if the College’s decisions are “adequate” and “reasonable”.   I somehow expected the College’s decisions would be held to a higher degree!  This Board totally ignored my expert’s opinions, the irrefutable facts contained within the hospital records, and documentation from medical books, journals, articles etc. and the panel without question accepted the College Of Physicians and Surgeons’ unsupported opinions.  Oh yes, it should be noted that a College representative is not required to appear before this H.P.A.R.B. panel and they do not!  Their attendance is via a telephone conference call even though the College’s Offices are within walking distance to the H.P.A.R.B. office building.  I traveled over 300 kilometers to be present.  This panel and the Board lack plain common sense.  If H.P.A.R.B. felt they couldn’t do an “adequate” and “reasonable” job, it should be asking the Ontario Government through legislation to give them more authority.  After all, all they can judge the College is on adequacy and reasonability!  The fourth institution within Ontario to grant a surgeon/doctor “medical immunity”!

The fifth institution is the Death Investigative Oversight Council created to handle complaint against the Chief Coroner’s Office.  Its own mandate states when an Ontario citizen submits a complaint against the Chief Coroner it is to be handled immediately.

Well, two years after my initial submission, they started to investigate.

It should be noted they failed immediately with respect to transparency and accountability as they meet behind closed doors and the complainant and the public is prevented from attending.  Now there is an excellent start to a citizen’s complaint!  When I received their decision approximately two and a half years after my submission, I was shocked to see they can not comment on the medical aspects of my daughter’s care!

So, why were they created as an avenue for one to pursue?  Of course, any complaint against the Chief Coroner would have to be about a death investigation, and of course, it would have  medical aspects related to the case.  Again, we have another government funded (taxpayers’ dollars) institution within Ontario that has granted “medical immunity” to a surgeon by not challenging the effectiveness of a death investigation by the Chief Coroner’s Office of Ontario. 

At this point, a reader may ponder, “Why did Mr. Kilby not pursue a malpractice suit?”  Three law firms stated that the expense would be great, as would the amount of time that would go by.  Should I win, the judgment would be between $45,000 and $135,000.   This is not the United States of America.  This was never about money, but the truth, transparency and accountability. As well, the Canadian Medical Protection Association (the medical insurer for all Canadian doctors) has of this date a Three Billion Dollar Reserve Fund to be used to provide legal council and to settle malpractice suit that would be the last thing they would do, and only after years of exhausting delays to a trial.  Every trick in the book would be used with the intent of draining you financially, emotionally and physically.  One must wonder why our own Ontario Government pays 85% of the surgeons/doctors membership fees (insurance) to the C.M.P.A.?  

 
The final institution to grant “medical immunity” to Ontario surgeons and doctors is our Liberal Provincial Government, and unfortunately all MPP’s within Ontario whose salaries are paid for by Ontario taxpayers.  I have sent e-mails, and faxes continuously throughout the years pleading for the Premier, his Ministers and his Caucus to look into my substantial and very serious concerns and have been totally ignored.  Unfortunately, the Conservative and New Democratic Party have failed not only me but also all the citizens of Ontario.  So they have become the final party to grant “medical immunity” to all surgeons/doctors within Ontario.

It is so wrong to think this, but I am convinced.  In a hospital setting a surgeon/doctor could actually commit a murder and get away with it.  They are getting away with negligence contributing to adverse events and deaths taking place in hospitals with no fear of being reprimanded or held accountable.  The record of Terra’s surgeon remains spotless although there are more deaths associated with him, and there is no way for citizens to be aware of his past. This is the reality within Ontario.

I would propose the Ontario Government abolish the H.P.A.R.B.'s and the D.I.O.C.'s authority to investigate complaints submitted by Ontario citizens and use this financial savings to allow the Ontario Ombudsman to expand their role.  (Ontario is the only province/territory whereby he does not have the authority to investigate Health Institutions or those related to it)

This article is dedicated to my daughter, Terra Dawn Kilby, An Angel In Our Lives and to all citizens of Ontario who have been abused by the non-transparency and un accountability in this province and those that will encounter the same in the future.

My love, prayers and best wishes go out to you all.

A.W. Kilby  888 Country Rd 2  Lansdowne, Ontario  K0E 1L0 

                             

      

“Remember Me" 

Remember that my favourite colour is blue, and my love of Care Bears.  How I was nervous meeting new people, and yes, I did make many new friends just like you said I would.  

Remember our special days together; the many camping trips, dance recitals, graduations, and visits to Wonderland.  Remember how I could raise one eyebrow and could make my ears wiggle.  How I loved spaghetti and peach crepes.  My favourite ice‑cream was chocolate chip cookie dough.  I believed in fate, angels and yes, UFO's. 

I am still with you, close your eyes and think of me.  Picture my face and my smile and the brightness of my eyes.  Remember: the smell of my hair and my perfume, the warmth and love of my embrace, the feel of my tears against your cheek, the softness off my skin, the sound of my voice and the deepness of my love.   

You hold all the precious memories of me in your heart and in your mind.  No one can take them away; I will be with you always.

"Please, Remember Me"

I know you are sad right now.  It may hurt you so to think of me.  But, I ask you to please remember me.  You may be remembering me at this moment with your tears.  It is ok; tears heal and cleanse.  Don't block out your memories of me; I know you miss me, cause I miss you too.

Some day, hopefully soon, your memories of me will make you smile, and perhaps chuckle.  Remember our times of happiness, laughter and yes, some tears.

Perhaps not every moment was perfect. 

Please, no regrets, never regrets.  Life is too precious for regrets.  If everything was perfect, we would never really appreciate life because it would all be the same.  We would never learn to grow or aspire to be a better person. We learn from the many challenges life presents.

Everything that happened in my life made me the person I am, so I say again, no regrets.

I say, "I am" because I am still with you.

You will come to know this once your grief passes.        

In Loving Memory,  Aunt Angie