Howard Levitt: Bullying a chronic disease in Canada’s health-care sector — but the courts are finally reining it in

Hospitals are the perfect petri dish for bullying and harassment to flourish.

Extensive and pervasive bullying and harassment is one of the well-known ‘secrets’ of Canadian health care. It’s so widespread that some have even analogized bullying in the medical profession to a chronic disease. Why does bullying of, and by, physicians persist when other workplaces have made such substantial gains in addressing it?

Hospitals are the perfect petri dish for bullying and harassment to flourish: medicine is hierarchical by design and the stakes are high — one misstep can cost a patient’s life. Fear of error, blame and deflection are palpable. Ego and reputation are at stake, as is financial and professional gain. Power imbalances involving seniority and position can be overlaid with factors such as race, gender, religion and sexual orientation.

Lax enforcement of anti-bullying and harassment measures by hospital administration has played a significant role in physician bullying. While most people perceive physicians as the ‘top’ of the health-care hierarchy, more likely to be the bully, the reality is more complex — they are just as likely to be bullied.

Medical students and young physicians are indoctrinated early to fear speaking out. A May 2020 Independent Student Analysis Report of the University of Toronto Faculty of Medicine Program found significant numbers of students experiencing “mistreatment, poor accessibility of… reporting systems, and lack of student comfort with reporting mistreatment.” Close to half of students responded they were too fearful to report mistreatment.

Physicians working in hospitals who experience their rights being ignored or violated by hospital leadership usually feel powerless to fight back because of their lack of trust in confidentiality, hospital processes and fear of reprisal.

As self-insured, ‘privileged’ independent contractors, physicians are not employees of hospitals, which are rarely held responsible for the doctors’ behaviour. Lack of alignment between hospital responsibility and physician behaviour creates a vacuum where individual rights fall through the cracks and hospital culture is poisoned.

Hospitals rely on administrative and medical leadership to oversee physician practice issues. However, medical leadership is often inadequately trained and supported by hospital administration. As a result, medical leaders do not always act fairly or in line with contemporary workplace standards. Hospital leaders frequently deal with physician issues off the record, without a paper trail. This closed door, sotto voce approach allows for abuses of power and conflicts of interest to remain unchecked and undocumented.

Additionally, physician leaders occupy multiple positions of power within a hospital or, in the case of teaching hospitals, affiliated universities, which can make the threat of reprisal for reporting harassing behaviour by these leaders even more frightening for other physicians. Hospital administrators allow physicians to largely self-police and may look the other way when inter-professional bullying or harassment occurs. They are also often confused by what should be viewed as bullying in a hierarchical environment when the health of patients are at stake.

Inaction or acquiescence by hospital administration to abuses of power by physicians silently communicates to everyone else that some individuals are ‘above’ the law and challenging them would be fruitless. Worse, it could result in retaliation. As a result, existent hospital procedures for addressing unfair treatment are mistrusted and underutilized by physicians and others in our hospitals.

This culture was well captured in the UofT report, which noted that reporting mistreatment was seen as “career-threatening.” Breaches of confidentiality by the hospitals that the students reported mistreatment to resulted in some students being confronted by the very individuals they cited for mistreatment.

Even when bullying affects a physician’s privileges, the path to protection and damages can be rife with difficulties. However, a couple of landmark bullying cases have shown that Canadian courts are starting to understand and address the gaps in protection for physicians.

In a 2018 Nova Scotia Court of Appeal decision, the court reviewed a $1.4-million jury award to a cardiologist who had her privileges revoked. Dr. Gabrielle Horne, then a junior female researcher, was awarded major research grants and senior male colleagues wanted their names included on her papers. Her refusal to comply led to allegations of ‘uncollaborative’ behaviour culminating in the hospital revoking her clinical privileges. The Court of Appeal upheld the lower court’s finding of administrative bad faith on the part of the hospital, recognizing the loss to her research career and damage to her reputation, but lowered the award amount to $800,000, still a considerable amount, because of improper jury direction.

In a 2010 Ontario Court of Appeal decision, the court upheld the trial decision, awarding Dr. Israel Rosenhek over $3 million in damages against Windsor Regional Hospital when his privileges were revoked in bad faith and his reputation was unjustly harmed when he was alleged to be not ‘fitting in’ with the other physicians.

The bullies, not the bullied, should be the ones penalized for this unacceptable behaviour. Physicians have been slow to realize and protect the rights which the courts have been affording to the rest of us. They are catching up with a vengeance.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.