Health Professions Review Board

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: Facsimile: Toll Free: (within BC) Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 DECISION NO HPA-0147(a) In the matter of an application under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, for review of a complaint disposition made by an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of BC COLLEGE AND: A Physician REGISTRANT BEFORE: Barbara Cromarty, Member DATE: Conducted by way of written submissions concluding on November 16, 2011 APPEARING: For the Complainant: Dr. J. Francois Thériault, Advocate For the College: For the Registrant: Shaleen Kanji, Counsel Nevin Fishman, Counsel PRELIMINARY DECISION ON THE APPLICATION TO DISMISS AND ON THE ADMISSION OF NEW EVIDENCE I DECISION [1] Upon considering the preliminary application made by the Registrant for summary dismissal pursuant s.31(1)(c) (d) and (f) of the Administrative Tribunals Act, SBC 2004 c.45 as amended (the ATA ) it is the decision of the Health Professions Review Board (the Review Board ) that the summary dismissal application is dismissed. [2] Upon considering the application of the Complainant to introduce new evidence that was not part of the record, pursuant to s.50.6(7) of the Health Professions Act, RSBC 1996, c.183 as amended, (the Act ), I have concluded that the Review Board will receive some of the evidence as set out in this decision. II INTRODUCTION AND BACKGROUND [3] The Registrant is an Ophthalmologist in private practice in the Okanagan.

2 DECISION NO HPA-0147(a) Page 2 [4] The Complainant was a patient of the Registrant in 2008 having had cataract extraction surgery performed on both of her eyes at the Registrant s clinic. She filed her initial complaint dated July 30, 2009 to the College regarding the Registrant s conduct received by the College on August 10, The Complainant made allegations that the Registrant failed to inform her of the purpose and the alternatives to eye surgery at his private clinic. Then she was told the procedures could not be performed in the public facility, when they could be. She also alleged that she was charged an inappropriate amount of money for the cataract extraction and astigmatism correction. In addition, she alleged that the Registrant actually failed to perform astigmatism correction surgery, a procedure which she consented to and which she paid for. Finally, that she was wrongly referred by the Registrant to a specialist in Vancouver B.C. causing unnecessary travel expenses for her. [5] In its letter dated August 3, 2010, the College reported its disposition to the Complainant. The College advised the Complainant that it was not critical of the Registrant s care of the Complainant as she had received good ophthalmologic care and that the surgical results met with the expected standards. The College advised that it was unable to substantiate her complaint. [6] On September 18, 2010 the Complainant applied to the Review Board seeking a review of the College s decision and a review of its disposition of her complaints against the Registrant. [7] In her submissions to the Review Board she alleges that the College s investigation was inadequate and that its disposition was unreasonable. The Complainant makes a number of specific allegations respecting the College s investigation, in particular: that it failed to discover that the medical records provided by the Registrant appeared altered and were different than the records he provided to her; that it failed to recognize the insignificance of the Complainant s pre-operative corneal astigmatism making surgery unnecessary; that it failed to address the issue of the Registrant s advice to the Complainant that the astigmatism correction was not available in a public facility when in fact, it was; that it failed to address the composite fee complaint properly; that it failed to address the Registrant s non-compliance with College policy regarding the composite fee; that it failed to address the fact that astigmatic keratotomy was not planned or performed despite the consent forms signed by the Complainant indicating this; that it failed to examine the Complainant to verify her claims; that it failed to address the fact that the left incision increased rather than decreased her astigmatism; that it failed to address the lens implant mark-up complaint that the fee charged and the mark-up by the Registrant was not in compliance with College conflict of interest policy; and that it failed to have a person appointed to the Inquiry Committee panel with the expertise to properly consider the Complainant s allegations, such as an Ophthalmologist. III ISSUES [8] The issues to be determined on this preliminary application are: (a) whether the Review Board should summarily dismiss this application for review commenced under s.50.6 of the Act by the Complainant;

3 DECISION NO HPA-0147(a) Page 3 IV (b) whether the additional evidence that the Complainant seeks to introduce is necessary for the full and fair disclosure of all matter related to the issues under review and whether it ought to be admitted. RELEVANT LEGISLATION, BYLAWS AND POLICY [9] With regards to the summary dismissal application, for convenient reference, the relevant legislation under the ATA is reproduced below: 31 Summary dismissal (1) At any time after an application is filed, the tribunal may dismiss all or part of it if the tribunal determines that any of the following apply:. (c) the application is frivolous, vexatious or trivial or gives rise to an abuse of process; (d) the application was made in bad faith or filed for an improper purpose or motive;. (f) there is no reasonable prospect the application will succeed; A. Additional Evidence [10] The Act, the Health Professions Review Board Rules of Practice and Procedure (the Rules ) and the ATA all have provisions which deal with the admissibility of evidence which did not form part of the original Record. [11] Section 50.6(7) of the Act provides that a review board may hear evidence that is not part of the record as reasonably required by the review board for a full and fair disclosure of all matters related to the issues under review. [12] In addition, s.40(1) of the ATA states that The tribunal may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. [13] The Rules under the Act provide: Rule 12 Review on the Record (1) An application to the review board on a registration review or a complainant disposition review will be conducted as a review on the record, subject to any additional information or evidence that was not part of the record that the review board accepts or requires from a party as reasonably require to a full and fair disclosure of all matters related to the issues under review. Rule 51 Admission of Additional Information and Evidence

4 DECISION NO HPA-0147(a) Page 4 (1) The review board is not bound by the legal rules of evidence and may admit any information or evidence it considers relevant to the matter before it and appropriate in the circumstances. (2) On a registration review or complaint disposition review, the review board may consider information or evidence in a review that was not part of the record where reasonably required by the review board for a full and fair disclosure of all matters related to the issues under review. (3) All documents and submissions delivered to the review board in advance of a hearing will be considered information that the review board may consider in its decision-making process. (5) A party objects to the review board considering such additional information or evidence, or a portion of it, the review board may make a decision on that question at the time of the objection, either prior to or at the hearing, or it may receive the information or evidence and consider the objection in the course of rendering its decision on the case. V DISCUSSION AND ANALYSIS [14] With regards to the Registrant s application for summary dismissal pursuant to s.31(1)(c)(d) and (f) of the ATA, the Registrant argues that the application is frivolous, vexatious and an abuse of process; that it was made in bad faith or for an improper purpose or motive; and that it has no reasonable prospect of success. The Registrant requests that the application should be dismissed summarily. I am mindful of the comments with regards to the test for a summary dismissal application as set out in Review Board Decision No HPA-0052(a) wherein the Review Board provides a comprehensive and detailed analysis with regards to summary dismissal applications before it. [15] In her submissions to the Review Board, the Complainant raises a number of allegations respecting the College s investigation as set forth in paragraph [7] above. As a result, she argues, the College s investigation was inadequate and its disposition of her complaint was unreasonable. [16] As stated, the Registrant submits that the application of the Complainant is frivolous, vexatious and is an abuse of process; that it was made in bad faith; and that there is no prospect it will succeed. The basis for the application pursuant to section 31(1)(c) and (d) of the ATA is the language used by the Complainant in her complaint. More specifically, it is the language used by the Advocate who prepared the submissions on behalf of the Complainant put before the Review Board. The Registrant submits that the submissions are extreme exaggerations, reckless overstatement and venomous. Therefore, that it has been clearly brought for no other purpose than to harass, annoy, embarrass and abuse the Registrant and not for an assertion of legitimate rights. It is of note that the original complaint to the College, in addition to the Form 3 dated September 18, 2010 submitted to the Review Board were prepared by the Complainant herself. They contain none of the language complained of by the Registrant. While the submissions presented through the Advocate to the Review Board

5 DECISION NO HPA-0147(a) Page 5 do contain language that is derogatory of the Registrant, these are isolated phrases in fairly lengthy submissions which are otherwise articulate, comprehensive and properly written. While the use of such language is not to be condoned and is not helpful to the Complainant or the Review Board, it cannot, where there may be a valid complaint be the justification for refusing to hear the application. I note that the Registrant responded somewhat in kind, although to a lesser degree with personal comments against the Advocate. Notwithstanding the unfortunate use of language, I am satisfied that the complaint was made in good faith by the Complainant and that it is not frivolous, vexatious, trivial or an abuse of process. [17] I disagree that there is no reasonable prospect of success in this matter. While it is not the role of the Review Board, at this preliminary stage, to make a finding on the Complainant s allegations, the concerns raised by the Complainant do warrant a hearing by the Review Board. I am not satisfied that the prospect of success is unreasonable or that the complaint is bound to fail. [18] The Registrant has not discharged the onus of demonstrating that this matter falls within s. 31(1) of the ATA. The person applying for summary dismissal bears the onus of satisfying the Review Board that summary dismissal is appropriate. If a person relying on s.31(1) of the ATA cannot satisfy the Review Board on a preliminary application that the prospect of success is unreasonable in all of the circumstances, the appropriate decision is to dismiss the application and proceed to a hearing. The Review Board must not use s.31(1) as a pretext to engage in adjudication that is properly undertaken by the hearing panel. [19] Turning to the issue of the Complainant s application to introduce additional evidence. The Complainant has organized the proposed additional evidence into a list titled Form 11, at page 10 of the Statement of Points under the following listings: (1) Relevant medical file of Dr. [A], OD; (2) Complete medical file provide to Mrs. [the Complainant]; (3) Relevant medical file of Dr. [B], MD; (4) Hoffman paper; (5) Dr. Osher article; (6) Alcon lens implant invoice; (7) College Conflict of Interest Policy; (8) Alcon astigmatism calculation; (9) Primer on Astigmatism. [20] In addition, the Complainant requested the admission of additional evidence by way of letter dated November 7, 2011 after receiving a list of members from the College that were on the Inquiry Committee and who had made the determination to dismiss the complaints. The purpose of obtaining the list of members on the Inquiry Committee was so that the Complainant could determine whether or not there was an Ophthalmologist on the Inquiry Committee. The Complainant wishes to provide that information to the Review Board and it forms the basis of her submission that the Inquiry Committee did

6 DECISION NO HPA-0147(a) Page 6 not have the expertise to properly consider and determine her complaints and that the College ought to have appointed an Ophthalmologist to the Inquiry Committee if they wanted to conduct and adequate hearing. [21] The Review Board has examined the issue of the admission of additional evidence in earlier decisions, Review Board Decision No.2009-HPA- 0001(a);0002(a);0003(a) and 0004(a) and in Review Board Decision No HPA- 0102(b);0103(b);0104(b) and 0105(b). The following criteria were established: (1) How relevant is the material to the matters at issue on the review? (2) Would it be fair to all parties to admit it? (3) Does admission of the information render the disclosure more full or complete so as to enable the review board to render a full, fair and proper hearing? [22] The Review Board determined that the weight assigned to each of these criteria would depend upon the evidence in question. [23] Therefore, having considered the relevant legislation and Rules and the abovenoted criteria, I will admit the following additional evidence: (1) Relevant medical file of Dr.[A], OD; (2) Complete medical file provided to [the Complainant]; (3) Relevant medical file of Dr. [B], MD; (4) Alcon lens implant invoice; (5) The list of members from the College that were on the Inquiry Committee of the College who conducted the hearing. [24] I will not admit the following additional evidence: (1) Hoffman paper; (2) Dr. Osher article; (3) Alcon astigmatism calculation; (4) Primer on Astigmatism; [25] The College Conflict of Interest policy is not additional evidence as that term is used in a section 50.6(7) application and I do not need to rule on this. Legislation, bylaws and policy are not evidence and the Complainant is entitled to use and reference legislation, by-laws and policies in her submissions. [26] The relevant medical file of Dr. [A], OD, the complete medical file provided to [the Complainant], the relevant medical file of Dr. [B] MD, the Alcon lens implant invoice and the list of members from the College that were on the Inquiry Committee are admitted. This information may be necessary for the full and fair disclosure of all matters under this review and have relevance to the determination of the issues of whether the investigation was adequate and the disposition reasonable. In addition, admitting this evidence is not prejudicial to the Registrant or to the College.

7 DECISION NO HPA-0147(a) Page 7 [27] Furthermore, with regards to the three medical files, the Complainant was not aware until she filed her application for review with this Review Board what the Registrant s submission were to the Inquiry Committee and what were the contents of her medical file the Registrant had provided to the Inquiry Committee. This information was not provided to her by the College. Therefore, the Complainant did not know, nor could she have known that there was a difference or discrepancy in her medical file that the Registrant had provided to her and that which he had provided to the College s Inquiry Committee. This difference or discrepancy extends to correspondence or documents in Dr. [A] records and Dr. [B]. Therefore, she cannot be faulted for not providing these documents at the time of that investigation before the Inquiry Committee. [28] With regards to the Hoffman paper, the Dr. Osher article, the Alcon Astigmatism calculation and the Primer on Astigmatism this new evidence is in the nature of expert opinion evidence. The Alcon Astigmatism calculation was completed by completing the personal information of the Complainant through an online website and printing out the results of the calculations done and is in the nature of expert opinion evidence but was not properly produced as such. In any case, the Review Board does not find this evidence is reasonably required for the Review Board to render a full, fair and proper decision. The Primer on Astigmatism is again in the nature of expert opinion evidence and the last three pages of this document is opinion evidence given specifically in regards to the Complaint, however it is not clear who the author of this opinion is. In any event, I find that it is not reasonably required to consider this evidence in order to render a full, fair and proper decisions on the issues at hand. The same analyses applies to the Hoffman paper and the Dr. Osher article. VI CONCLUSION [29] The Registrant s application for summary dismissal is dismissed. [30] I will admit some of the new evidence as stated above. [31] In making these decisions, I have considered all of the information and submissions before me, whether or not they are specifically referred to in these reasons. Barbara Cromarty Barbara Cromarty, Member Health Professions Review Board January 18, 2012