Charles Smith: Ontario Pathologist goes free?

August1991 · November 13, 2007

A pathologist makes grievous errors and many people find themselves falsely accused of horrendous crimes, found guilty and sent to prison. The State separates innocent wives from innocent husbands after they have just lost a child.

It is hard to imagine a worse crime. And what happens to the person apparently responsible for this?

His lawyer offers this statement:

"Dr. Smith sincerely regrets these mistakes and apologizes to all who may have been affected by his errors. Dr. Smith wishes to emphasize that any such mistakes were made honestly and without any intention to harm or obstruct the pediatric death investigations in which he was involved," Ortved read.

CBC

WTF? Could a drunk driver have his lawyer read such a statement and then walk away from the accident?

In an interview with CBC News, Mullins-Johnson said he hoped the inquiry would eventually lead to a criminal conviction for Smith or others involved in the errors that "destroyed" his life.

Hoped?

The stated goal of the inquiry which begins Monday morning in Toronto and is headed by Justice Stephen Goudge is to "restore and enhance" public confidence in pediatric forensic pathology in Ontario.
The broad mandate to look at "systemic" problems has raised concerns that the inquiry will not uncover exactly what was going on when Dr. Smith played such a prominent role in suspicious child deaths throughout the 1990s.

Canwest

There is something unnerving when bureaucrats hide behind "public investigations" and "enquiries" to determine "systemic" problems. If someone steals a car, we don't set up an enquiry to determine the "systemic" problems in the automobile transportation sector to restore confidence in the public's trust in car locks. We charge someone with a crime.

Drunk drivers generally don't set out to kill people in car accidents. If it happens, the drunk is usually apologetic afterwards - from within a jail cell. This case seems no different with the possible exception that Charles Smith was a government employee. As such, he seems to get clemency.

Our criminal justice system is designed to deal with these kinds of cases. This should be a criminal case now.

Edited November 13, 2007 by August1991

geoffrey · November 13, 2007

This should be a criminal case now.

Let's leave the State (mostly) out of it. The families should sue this guy for every last penny, in fact, the government shouldn't be paying settlements... this pathologist should.

Most cases of professional negligence have serious civil implications. I'd just rather see the families get something from this guy than the State getting it all and nothing going to those that suffered because of either his irresponsibility or wilful acts.

Now, if he intentionally lied and manipulated evidence to convict these people, then ok. Criminal charges may be warranted. But can we start jailing people for being incompetent?

Matters of professional judgement are immune from criminal action in my profession... and civil as well to a large extent. That is, if I screw up or make a poor choice, I'm ok, as long as I acted reasonably. You can't be faulted for judgement calls, only carelessness or fraud.

Was he incompetent or careless? Or was this "fraud", a deliberate attempt to jail innocent people?

Edited November 13, 2007 by geoffrey

Higgly · November 13, 2007

Let's leave the State (mostly) out of it. The families should sue this guy for every last penny, in fact, the government shouldn't be paying settlements... this pathologist should.

Good one. So after he's gone bankrupt from compensating one person for one year spent in jail, what then? This guy was working for the state, who was responsible for hiring him, paying him, and overseeing his work. This is like the Walkerton case in my books. Lack of management oversight is very likely a big part of the problem here and if so, the state pays. Big time.

Hopefully all the death penalty advocates who frequent MapleLeafWeb are paying attention here. Many of the falsely convicted (as far back as 20 years ago) were convicted of murder, including the murder of children.

A key question is whether the problem was with Smith or with the science. If it is Smith who was at fault, then there needs to be a determintion as to whether he was incompetent or sociopathic. If the science is at fault, then we have a whole different kettle of fish and the possibility that there are many, many hundreds more convictions at stake wherever the same science was used. All you CSI fans, take note.

This is just part of the problem. There are also many problems caused by bad cops, bad crown attorneys and bad lawyers. If somebody bought a car that was as unreliable as our justice system, they'd be in the dealership demanding a refund.

August1991 · November 13, 2007

Good one. So after he's gone bankrupt from compensating one person for one year spent in jail, what then? This guy was working for the state, who was responsible for hiring him, paying him, and overseeing his work. This is like the Walkerton case in my books. Lack of management oversight is very likely a big part of the problem here and if so, the state pays. Big time.

The problem there Higgly is that if the State pays, then it means that you and I pay. Why should taxpayers pay for something that was not their fault?

The politicians suffer no penalty out of this.

A key question is whether the problem was with Smith or with the science. If it is Smith who was at fault, then there needs to be a determintion as to whether he was incompetent or sociopathic. If the science is at fault, then we have a whole different kettle of fish and the possibility that there are many, many hundreds more convictions at stake wherever the same science was used. All you CSI fans, take note.
This is just part of the problem. There are also many problems caused by bad cops, bad crown attorneys and bad lawyers. If somebody bought a car that was as unreliable as our justice system, they'd be in the dealership demanding a refund.

And if GM had to pay refunds, GM would have an incentive to change how it manufactures cars.

The purpose of a fine or a jail penalty is to create an incentive. If the government just pays out compensation to the families involved, there is no incentive on the part of any bureaucrat or politician to change their behaviour. It's not a cost to them.

A state employee can create unimaginable suffering for an innocent person and the employee walks away by simply apologizing. Everyone debates the "systemic" problem. What kind of incentive does that create for other state employees?

Most cases of professional negligence have serious civil implications. I'd just rather see the families get something from this guy than the State getting it all and nothing going to those that suffered because of either his irresponsibility or wilful acts.
Now, if he intentionally lied and manipulated evidence to convict these people, then ok. Criminal charges may be warranted. But can we start jailing people for being incompetent?

Matters of professional judgement are immune from criminal action in my profession... and civil as well to a large extent. That is, if I screw up or make a poor choice, I'm ok, as long as I acted reasonably. You can't be faulted for judgement calls, only carelessness or fraud.

Your situation is different Geoffrey. If a client doesn't want your advice, the client is free to go elsewhere.

Even in the case of a dentist or a medical doctor, the patient usually bears some burden of the choice of treatment.

Charles Smith was acting with the authority of the State. In my mind, this problem goes well beyond this particular case and involves many other civil servants who do not face an adequate incentive structure to induce proper behaviour.

----

Civil servants themselves would say that they are acting in the interests of the State and hence they should not bear the burden of personal liability. On the contrary, I think civil servants should understand that they are subject to both criminal and civil penalties for their behaviour while working as civil servants.

Edited November 13, 2007 by August1991

geoffrey · November 13, 2007

Good one. So after he's gone bankrupt from compensating one person for one year spent in jail, what then?

These guys carry insurance. Beyond that, like August said, you and I shouldn't have to pay for this man's negligence.

This guy was working for the state, who was responsible for hiring him, paying him, and overseeing his work. This is like the Walkerton case in my books. Lack of management oversight is very likely a big part of the problem here and if so, the state pays. Big time.

Yes, you do have a responsibility for the actions of your employees, and this man was a State employee. Good point.

...there is no incentive on the part of any bureaucrat or politician to change their behaviour. It's not a cost to them.

Nor is there an incentive amongst doctors/pathologists to correct their ways.

Your situation is different Geoffrey. If a client doesn't want your advice, the client is free to go elsewhere.

True, in some cases. When Arthur Anderson botched the Enron audit, a few were charged that were directly related to the fraud, but most of the auditors faced no consequence. They erred in professional judgement, but followed reasonable procedures... a more competent person may have caught irregularities and have reported them.

Charles Smith was acting with the authority of the State. In my mind, this problem goes well beyond this particular case and involves many other civil servants who do not face an adequate incentive structure to induce proper behaviour.

How do you create an incentive structure for a pathologist?

Civil servants themselves would say that they are acting in the interests of the State and hence they should not bear the burden of personal liability. On the contrary, I think civil servants should understand that they are subject to both criminal and civil penalties for their behaviour while working as civil servants.

I tend to agree.

Edited November 13, 2007 by geoffrey

guyser · November 13, 2007

These guys carry insurance. Beyond that, like August said, you and I shouldn't have to pay for this man's negligence.

I believe they do not carry E&O insurance due to the employer being the govt. I am still checking.

geoffrey · November 13, 2007

I believe they do not carry E&O insurance due to the employer being the govt. I am still checking.

Actually, you may be right (not to mention your the insurance guy).

If he was a government employee (which I think he was, not a contractor), that does make the government liable for his actions, insurance or not, anyways.

old_bold&cold · November 13, 2007

It is very evident that this guy was incompetent and yes he should have to bear a large part of the blame. But he also worked in the capacity of the government, that also should have had precautions in place to control things long before they went on for so many years. So unfortunately yes that will mean that we the public will be on the hook for all the payouts in this. I would though say that we should take into account a value say $500.000.00 per every year the person was jailed and $100,000.00 for every year they lived outside of jail. Maybe that would be make things better and I would rather it be offered without them seeking the damages we all know thay deserve.

As for Smith goes, what would be an appropriate sentece for him and what punishment would be suitable. He should be made penniless and yes I think he needs to atone for his deeds. We would need to learn a lot more as to what drove him in his decisions and then maybe we can then find a sentence fitting his crimes.

Edited November 13, 2007 by old_bold&cold

Wilber · November 13, 2007

Being a civil servant has nothing to do with anything when it comes to criminal negligence or any other crime. If the evidence of a crime isn't there, you can't convict. The civil side is more interesting. The state would surely be liable in this case and it shouldn't make the victims have to fight for compensation. I don't think the good doctor should be isolated from his responsibility either.

August1991 · November 16, 2007

Being a civil servant has nothing to do with anything when it comes to criminal negligence or any other crime. If the evidence of a crime isn't there, you can't convict.

Wilber, I'll assume that you are a good person who means well. (Your posts imply that.) If you drive a car recklessly and by chance kill someone, you are guilty of manslaughter and you will go to prison. How is your situation any different from a civil servant?

A civil servant has the power of the state just as you have the power of a motor vehicle.

Edited November 16, 2007 by August1991

Wilber · November 17, 2007

Wilber, I'll assume that you are a good person who means well. (Your posts imply that.) If you drive a car recklessly and by chance kill someone, you are guilty of manslaughter and you will go to prison. How is your situation any different from a civil servant?
A civil servant has the power of the state just as you have the power of a motor vehicle.

August, for you to convict someone of a crime, first you have to prove that what happened was a crime under the law. If the Crown has enough evidence to charge Smith with criminal negligence, deliberately fabricating evidence or some other charge, they should do so, if they don't, they can't. The fact he was a civil servant has nothing to do with whether he is a criminal or not.