Quebec Court Overturns Orthopaedic Doctor’s Penalty

Do orthopædic doctors have the right to accept discounts from companies who supply materials to their patients?


By Tracey Arial
www.arialview.ca

In a July 2 decision in Centre de santé et de service sociaux de Laval versus Tadros, the Quebec Superior Court counselled strongly against Johnson & Johnson’s habit of paying orthopaedic surgeons a 2 per cent discount on the prosthetic hips and knees that they use for their patients.

The court also rejected the CSSS Laval’s right to force Chérif Tadros to pay $30,000 for his role in the scheme.

“Yes, I won the case against the CSSS Laval,” wrote Dr. Tadros in an email. “I really don’t plan to do anything special. I have an active practice and am happy to put all this behind me.”

Dr. Tadros might be happy to put the case behind him, but key concerns about the funding of Quebec hospitals by major suppliers remain.

This particular case dates from 2000-2006, when Johnson & Johnson wrote cheques worth a total of $594,928 to an organization called the Orthopaedic Foundation of Laval, ostensibly to be used for the training of orthopaedic staff at Cité de la santé.

The foundation consisted of a CIBC bank account set up by several orthopaedic surgeons at the hospital. As head of orthopaedics and then head of surgery at the hospital, Tadros had signing authority over the account. For years, he used it to pay for department expenses, including restaurant meals, replacement staff, Christmas wine bottles, conference and training course fees for various surgeons, office equipment and other such items.

On November 15, 2006, other surgeons at the hospital requested that Tadros resign, saying that they had a lack of confidence in his leadership. According to evidence at the trial, they thought there should be more money in their training account than there actually was, but no evidence of misuse of funds by Tadros was presented.

Tadros quit the next day. He now works at a medical clinic on Rockland in Montreal.

A year later, the CSSS Laval integrated 2 per cent surgeon incentive discounts into a three-year contract they signed with Johnson & Johnson.

Meanwhile, the disciplinary council of the Quebec College of Physicians began investigating Tadros. On October 1, 2009, it fined him $30,000 and banned him from practising for three months for participating in a kickback system. No other surgeons whose training was paid for out of the account were punished.

In his July 2 opinion, Quebec Superior Court Justice Louis J. Gouin rejected the obligation that Tadros pay this fee. He wrote “it’s clear that if the funds hadn’t been available for the use of the orthopaedic service and it’s doctors, with the precise goal to encourage them to regularly use Johnson & Johnson prostheses, these funds would simply have not been provided by Johnson & Johnson.”

Justice Gouin criticized Johnson & Johnson for putting in place a discount system without negotiating directly with the appropriate authorities, as was done in their agreement to supply sutures.

He condemned Tadros for choosing to participate in a discount scheme that contravened his medical code of ethics and for sloppy bookkeeping.

Lastly, he critiqued the CSSS Laval for taking a laissez-faire attitude to the situation as long as their surgeons were happy and the hospital met annual quotas set by the Ministry of Health.

Justice Gouin wrote that “the actions of all the parties involved in this case were reprehensible.”