A provincial program that monitors doctors' billing records is producing what some are calling a "fearful, demoralized profession." The audits are meant to prevent doctors from over-billing the health care system. But the penalties have become so stiff  that many doctors are going bankrupt.

Ontario doctors say they are being bullied because of the aggressive new audit laws that took effect two years ago. Some doctors who have been investigated by the Medical Review Committee are being treated for depression, marital problems and are cashing in RRSPs, mortgaging or selling homes in order to repay OHIP. Some are considering leaving the country.

"I really honestly cannot do this anymore," says Dr. Irene Vanek, a neuro-opthamologist specializing in eye tumours, practicing in Toronto. "But I love the work. So my choices are that I go to the States."

OHIP computers red-flagged her practice because she was billing for too many complex eye exams. Yet that is her specialty, and that is why she is referred patients from doctors across the province.

"What is too many? I do this for a living. What am I supposed to do?" says Vanek. She estimates she will be asked to repay half of the money she billed for virtually all the exams she's conducted over the last two years. That amount to in excess of $100,000.

"All of a sudden I'm supposed to pay a tremendous amount of money for work I have already done? I don't think this is right. It depends what they levy against me, but I will probably lose my house," she says.

Tracey Tremayne-Lloyd, a lawyer representing some of the doctors being audited, has witnessed the suffering of many doctors.

"In some cases the doctors have emotional breakdowns," Tremayne-Lloyd says. "I've seen several bankruptcies. Some have closed their practices, have had to take leaves of absence or gone on sick leave."

How the audits work

Doctors bill OHIP $4.5 billion each year. Audits have been conducted since the 1970s to make sure the money is paid out properly. In less than one per cent of these audits, fraud is uncovered, with the case transferred to the Ontario Provincial Police. The other cases handled by the Medical Review Committee are labelled "errors" in billing, or "unusual billing patterns."

Two years ago, the process became more aggressive under provisions in Bill 26. Doctors who decide to appeal the results of an audit must now pay the costs of the audit, as well as paying interest on the amount deemed owing back to the time of investigation. This means that a doctor will typically be on the hook for an additional $15,000 to $25,000 for the chance to appeal. There is clear incentive for doctors not to appeal.

Consider the case of Dr. Anthony Hsu. He is a pediatrician working in Welland, Ont., an underserviced area that is attempting to recruit  new doctors. He sees patients in his office and is on call at the local hospital every other day and every other weekend. OHIP flagged his practice because he had a high volume of patients, and he was performing more general check-ups compared to the average physician.

The Medical Review Committee surveyed 40 charts and determined that while he had billed for general assessments or check-ups, he had not written enough in his notes. Because of that, the team ruled he had not done the full check-up and ordered he repay his billings for two years.

"In my office, when I am under pressure, I often write notes down on different pages. But patients ask many questions. I talk to them. I take the notes that are necessary," says Dr. Hsu. "It is very shameful for me, accusing me of stealing from the public purse. I did not. I did everything I am supposed to and more."

Yet Hsu was ordered he repay $79,943.72 for the visits, another $20,119 in interest going back to the start of the probe four years earlier, and $8,100 for the cost of the audit. Total bill: $108,162.91.

If he appealed, OHIP would have deducted the amount from his billings over the next 12 months, something he felt he could not afford to do with a family and an office staff of two. So Dr. Hsu cashed in his RRSPs and paid the bill.

"To our doctors, it feels that they've basically put a gun to the head and said 'Pay up or we'll shoot. Pay me now without complaint or it will be double what I'm telling you if you complain'," says Tremayne-Lloyd. "It's nothing more than a cash grab. It leaves the doctors with little or no reasonable legal options to defend themselves."

Some other examples:

• Dr. B - psychiatrist - Ordered to repay $90,000, because the committee noted the doctor failed to chart the exact start and stop time for the patients undergoing counseling. The doctor suffered an emotional breakdown.
• Dr. C - a pediatrician - Ordered to repay $125,500 because the committee decided the tests he performed on patients were not deemed medically necessary, four years after the children were examined. The doctor had to re-mortgage his home and his wife suffers emotional problems as a result of the audit process.
• Dr. D - radiologist - Ordered to repay 100 per cent of income for four years because MRC disagreed with how he billed some diagnostic procedures. Despite being internationally-renowned for his work and innovative procedures, he has been left virtually penniless.

Each year on average, the audits return about $5 million to taxpayers.

"I think it is a fair process," says Dr. Barney Giblon, chairman of the Medical Review Committee. "We do 100 audits a year and there are roughly 20,000 doctors sending bills to OHIP."

"I feel bad those small numbers of people feel so upset by having their records checked. But I would like to point out that 20 per cent of those investigated don't pay anything back."

"Most physicians don't know what we do and it comes as a shock when they find out."

'The living dead'

"All of this is said to be good for the public. It couldn't be worse because doctors are becoming demoralized and frightened and will practice medicine defensively," says Tremayne Lloyd.

"It's not fraud. The vast majority of these doctors are doing good work," says Dr. Doug Mark, of the Coalition of Family Physicians in Ontario. "The process is turning doctors into note-takers rather than physicians."

"We do need a reasonable way to keep an eye on physicians' correctly billing the government for providing services to patients. But, in recent years, many family doctors and specialists have been devastated by this completely unfair process."

"I call these victims of the MRC 'the Living Dead', because these hard-working and caring physicians who have been through the current MRC process have been left feeling completely demoralized," says Dr. Mark.

The Coalition is planning to provide financial assistance to members who appeal audit rulings on their billing.

What's more, new data from the Ontario Ministry of Health suggests more doctors are trying to avoid the audit system and the stiff penalties altogether, by settling as soon as OHIP deems they are billing beyond the average for their specialty.

This is called direct recovery. It allows OHIP to recover overpayments directly from physicians without engaging the MRC process. In a typical direct recovery case, overpayment is identified using OHIP claims records exclusively; a review of patient records is not required.

In the 1998-99 fiscal year, 54 doctors opted for direct recovery, paying about $878,000 back to the province. By 2001-2001, under the effect of the new audit rules, 385 doctors chose to pay immediately without arguing their case, paying back $6,247,214.

This is money in addition to the $5.5 million recovered through the audits. So Ontario is getting back over $11 million from doctors for the 2001-2002 fiscal year.

Direct recovery information

Typically, a direct recovery is initiated where the amount of payment for incorrect claims can be determined from the claims data, without a review of patient service records. A provider who disputes a direct recovery may request that the Medical Review Committee review the matter.

Because a recovery may take place during more than one fiscal year, the Ministry does not track the number of physicians who made a payment during a fiscal year.

The table below shows direct recovery activity for the most recent four fiscal years.