Complainant v. The College of Physicians and Surgeons of British Columbia

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of British Columbia DECISION NO HPA-143(a) December 2, 2016 In the matter of an application (the 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, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT BEFORE: Brenda L. Edwards, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on November 9, 2016 APPEARING: For the Complainant: Self-represented DECISION ON AN APPLICATION FOR REVIEW I INTRODUCTION [1] On July 20, 2016, the Review Board received a letter from the Complainant in which he stated that he had received a June 25, 2016, decision from the College of Physicians and Surgeons of British Columbia that he believed was unreasonable. He attached a copy of that decision. The Review Board has accepted that letter under the Health Professions Act (the HPA ) as if it were an Application for Review of a Disposition by an Inquiry Committee (an "Application for Review") which is the form that a Complainant is typically expected to file with the Review Board when seeking a review of a complaint disposition made by an Inquiry Committee. [2] On August 16, 2016, the Complainant filed a Statement of Relief Sought after Completion of a Review of a Disposition by an Inquiry Committee on which he indicated in the appropriate places on the form that he sought three forms of relief: (a) a direction from the Review Board that the Inquiry Committee take appropriate action to resolve the matter between him and the Registrant; (b) a direction from the Review Board to the Inquiry Committee to request, in writing, that the Registrant undertake or consent to specified action;

2 (c) send the matter of my complaint back to the Inquiry Committee for reconsideration with such directions as the Review Board determines are appropriate. [3] On September 21, 2016, in response to a request from the Review Board, counsel for the College provided a copy of the investigative record and disposition of this matter (the "Record"). [4] On September 27, 2016, the Chair of the Review Board wrote the Complainant, counsel for the College and counsel for the Registrant and directed that the matter proceed to Stage 1 of the hearing process stream under the Review Board s Rules 31(1)(c) and 43. The Chair also directed the Complainant to provide the Review Board and counsel for the College and the Registrant with a Statement of Points for the review and any additional documents in support of his case by October 14, 2016, or, if he wished to rely solely on his Application for Review and did not intent to file a Statement of Points, he was to advise the Review Board and the others of that decision by the same date, i.e. October 14, [5] On October 19, 2016, the Chair of the Review Board wrote the Complainant noting that he had not complied with the Review Board's letter of September 27, The Chair ordered that, within 21 days of the date of the letter, the Complainant either provide his Statement of Points or written confirmation that he intended to rely solely on his Application for Review or provide the Review Board with a signed withdrawal notice. [6] On November 9, 2016, the Complainant faxed a notice to the Review Board indicating that he intended to rely solely on his Application for Review. [7] On November 10, 2016, the review of this matter was assigned to me by the Chair of the Review Board for a "Stage 1 hearing." At a Stage 1 hearing I may decide to: (a) confirm the Inquiry Committee disposition under s.50.6(8)(a) of the HPA if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or (b) determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant. [8] I am satisfied that this matter may appropriately be dealt with at Stage 1, that is to say based solely on the Record and the Complainant's Application for Review. II BACKGROUND [9] On October , the Complainant, a 52 year old man, was injured when a pressure cooker that he was standing near exploded. He was taken by ambulance to the emergency room of a local hospital (the "Local Hospital"). [10] The Registrant was the emergency room physician on duty at the Local Hospital on October 12, 2014, when the Complainant arrived with thermal burns from the

3 explosion. The Registrant charted the Complainant's age and noted that there had been no flames or fire from the explosion. The Complainant reported that he had not lost consciousness and had no complaints other than his skin symptoms. He reported a medical history that included Crohn's disease. The Registrant examined the Complainant and charted the burns which he described as primarily to the abdomen with no clinical evidence of intra-abdominal injury. The Registrant noted that approximately 15% of the Complainant's body was subject to first degree burns and less than 5% had second degree burns (he drew a depiction of the burns on the chart and specified on the drawing that approximately 15% were first degree and 2-3% second degree). The possibility of third degree burns was considered but not substantiated by the colour of the skin. [11] The Complainant was given a tetanus shot, intravenous morphine and Gravol while at the Local Hospital. Nursing staff cleaned and dressed his wounds. The Registrant provided the Complainant with a prescription for morphine using the prescription template of another physician. The Registrant advised the College that he had forgotten his own special narcotics prescription pad so asked his colleague to loan him a pad and the Registrant substituted his name for that of the other physician. The Complainant attempted to fill the prescription but a pharmacy declined to fill it given the change to the prescription form. The Complainant obtained a second prescription for morphine from another physician on October 13, [12] The Registrant telephoned a plastic surgeon at a larger urban hospital who advised that the Complainant could be safely assessed as an outpatient at that hospital's burn clinic (the "Burn Clinic"). The two physicians discussed and agreed on the choice of treatment that the Registrant proposed for the Complainant at the Local Hospital. The Complainant was given the phone number of the Burn Clinic and instructed to call on October 14, 2014, (the next workday) to ensure that he had an appointment and follow-up within 48 hours. The Registrant faxed the Complainant's information from the Local Hospital to the Burn Clinic. [13] The Complainant did not change his dressings and did not attend the Burn Clinic on October 14, Instead, the Complainant returned to the emergency department of the Local Hospital on October 14, 2014 complaining of severe pain, swelling to his penis and numbness in his groin region. Another emergency physician examined the Complainant, noted the swelling to the penis but the burn area remained unchanged. The Complainant's burns were redressed at the Local Hospital and he was advised to attend the Burn Clinic the following day. [14] On October 15, 2014, the Complainant re-attended the emergency department of the Local Hospital and reported that he had called the Burn Clinic and had been provided with an appointment for the following week. An emergency physician at the Local Hospital called a plastic surgeon at the Regional Hospital and the Complainant was, subsequently, provided with an appointment at the Burn Clinic for the following day, i.e. October 16, [15] The Complainant's hospital records from the Regional Hospital indicate that he attended the Burn Clinic on October 16, 2014, and was assessed by a plastic surgeon as having burns to 16.5% of his body. His dressings were changed and he was given a follow-up appointment at the Burn Unit for October 22, 2014.

4 [16] On October 20, 2014, the Complainant re-attended at the emergency department of the Local Hospital where his dressings were changed and he was instructed to keep his appointment at the Burn Clinic on October 22, On October 22, 2014, the Complainant was seen at the Burn Clinic where it was noted that the majority of his burns were healed but the lower abdomen and pelvic area had not healed properly and skin graft surgery was scheduled for the following date. The surgery took place as planned on October 23, 2014 and the Complainant was discharged from the Regional Hospital on October 28, [17] On October 6, 2015, the Complainant filed a complaint with the College seeking "compensation for pain and suffering" as a result of the Registrant's "unprofessional" treatment of him on October 12, III DECISION [18] In reaching my decision, I considered all the information that was before me whether specifically referenced in this decision or not, including the Complainant's July 20, 2016, Application for Review and the 251-page Record. IV APPLICABLE LEGISLATION [19] The HPA governs the College's oversight of applications for registration and the supervision of registrants. It also provides for the investigation of complaints regarding the conduct or competence of registrants. In addition, the HPA provides the Review Board with authority to review Inquiry Committee dispositions of complaints. [20] The HPA provides in section 32(1) that a person who wishes to make a complaint against a registrant is to deliver the complaint in writing to the registrar of the College (the "Registrar"). Section 32(2) of the HPA requires that the Registrar deliver a copy of the complaint to the Inquiry Committee together with the Registrar's assessment of the complaint and any recommendations that the Registrar has for disposing of the complaint. The Registrar may dismiss a complaint without referring it to the Inquiry Committee in certain situations which are provided for in section 32(3). 32 (3) Despite subsection (2), the registrar, if authorized by the board, may dismiss a complaint, or request that the registrant act as described in section 36(1), without reference to the inquiry committee if the registrar determines that the complaint (a) is trivial, frivolous, vexatious, or made in bad faith, (b) does not contain allegations that, if admitted or proven, would constitute a matter subject to investigation by the inquiry committee under section 33(4), or (c) contains allegations that, if admitted or proven, would constitute a matter, other than a serious matter, subject to investigation by the inquiry committee under section 33(4). [21] The HPA requires that the Registrar deliver a written report to the Inquiry Committee about the circumstances of any disposition made under s.32(3), and if the

5 Inquiry Committee approves of the proposed disposition it is considered to be a disposition by the Inquiry Committee. [22] The Registrar disposed of the complaint in this matter under s.32(3)(c) of the HPA. [23] Under s.50.6(1) of the HPA, a person may apply to the Review Board for a review of the disposition of the Inquiry Committee. The Complainant applied for such a review. [24] Section 50.6(5) sets out the responsibility of the Review Board when conducting a review: 50.6 (5) On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. [25] Section 50.6(8) sets out the powers of the Review Board after completing the review: 50.6 (8) On completion of its review under this section, the review board may make an order (a) confirming the disposition of the inquiry committee, (b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (c) sending the matter back to the inquiry committee for reconsideration with directions. [26] My task, on behalf of the Review Board, as described in s.50.6 (5) of the HPA, is to review the College's disposition of the complaints and to consider one or both of the adequacy of the investigation and the reasonableness of the disposition. The Complainant has not taken issue with the adequacy of the investigation. In his Application for Review letter to the Review Board he submits only that as he has a different view of the facts, he believes the disposition is unreasonable. [27] I will set out the investigation process of the Registrar in so far as it is necessary to provide context to the Inquiry Committee's disposition. V THE INVESTIGATION PROCESS The Complaint: [28] As mentioned on October 6, 2015, the Complainant filed a complaint with the College seeking "compensation for pain and suffering" as a result of the Registrant's "unprofessional" treatment of him on October 12, The Complainant submitted that the Registrant told him that he had "only 1st and 2nd degree burns" and that he was

6 treated with gauze and sent home. He further alleges that when his wife asked the Registrant whether he was going to check the Complainant's head and body as he had been thrown across the room in the explosion, the Registrant replied "No. He's okay he can go home. What for?" The Complainant alleged that the Registrant did not examine his penis. [29] The Complainant further alleged that he returned to the hospital on October 14, 2014, and saw another physician who told him that his burns were serious and he should have gone to the Burn Unit of the Regional Hospital right away. The Complainant alleges that the emergency physician noticed that the Complainant's penis was affected. The Complainant says he went to the emergency department at the Regional Hospital and was admitted right away. He also noted that he was unable to fill the prescription that the Registrant had given him because the Registrant had used another physician's prescription pad. The Complainant asserted that he had to undergo skin graft surgery and that he lost time off work and now was coping "with the aftermath", all of which he attributes to the Registrant's "negligence." He questions why he did not receive appropriate treatment from the Registrant. The investigatory process [30] On October 16, 2015, the Clinical Manager, Complaints and Investigation Department of the College (the "Clinical Manager") wrote the Complainant acknowledging receipt of his complaint and advising him that the College would provide a copy of his complaint to the Registrant and seek his response and that it might make further inquiries after that such as obtaining copies of his medical records, hospital charts etc. The Clinical Manager wrote the Registrant on the same date and provided him with a copy of the complaint and sought his response. [31] On October 23, 2015, the Registrant provided his response to the complaint. He acknowledged treating the Complainant at the Local Hospital on October 14, 2014, for thermal burns from a pressure cooker explosion. He described the wounds in detail and the treatment that he ordered after consulting with a plastic surgeon at the Regional Hospital. The Registrant advised the College that the Complainant was provided with the telephone number for the Burn Clinic to call on October 14, 2014 to ensure that he had a follow-up appointment within 48 hours. The Registrant further explained that he discussed oral analgesia with the Complainant who requested hydromorphone for pain. The Registrant stated that, as he infrequently prescribed controlled narcotics, he did not have a "triple prescription pad" with him and so he borrowed a triplicate template from his colleague to write the prescription. The Registrant apologized for the fact that the Complainant was not able to fill this prescription in a timely manner and said, in hindsight, he could have asked his colleague to write the prescription. He stated that he cared very much about the Complainant's concerns and wished him well. [32] On November 2, 2015, the Clinical Manager requested copies of the hospital records for the Complainant for October 2014 from the Local Hospital and the Regional Hospital, including the "Burns Clinic". On November 19, 2015, the Regional Hospital provided the records sought and on December 10, 2015, the Local Hospital did the same.

7 [33] On April 6, 2016, the Clinical Manager provided the Registrant's response to the complaint to the Complainant. [34] On June 8, 2016, a Panel of the Inquiry Committee met and considered a draft disposition letter prepared by the Senior Deputy Registrar (the "Registrar"). The Inquiry Committee approved of the draft disposition letter and authorized the Registrar to send the disposition letter to the Complainant. The final disposition letter, as approved by the Inquiry Committee was dated June 22, 2016, and was sent to the Complainant. VI REASONABLENESS OF THE DISPOSITION: [35] The scope of my authority under the HPA is clear; it is not for me to substitute my decision for that of the Inquiry Committee simply because I might have reached a different conclusion. Rather, my mandate is limited to determining whether the disposition that the Inquiry Committee arrived at was "reasonable" in the circumstances and, if it was, I am to confirm that disposition. That said, as a member of a specialized administrative tribunal, I am entitled to determine the degree of deference that it is appropriate for me to afford the Inquiry Committee s disposition in the circumstances, bringing to bear my own expertise as an administrative decision-maker. [36] In this case, I have afforded a high degree of deference to the Inquiry Committee as the disposition deals only with the exercise of medical expertise and judgment. [37] I accept that when assessing the "reasonableness" of a disposition, I must ask myself whether the decision falls within the range of acceptable outcomes that are defensible having regard to the facts and the law: Dunsmuir v. New Brunswick 2008 SCC 9 at para. [47]. [ [38] The Supreme Court of Canada in Dunsmuir, supra provided further guidance to reviewing courts (and bodies such as the Review Board) when it held that: (R)easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process: at para. [47] [39] The Review Board in Decision No HPA-088(a) at para. [12], noted some of the key factors that should be present in a "reasonable" disposition: A reasonable disposition should be transparent (clear as to how the Inquiry Committee arrived at its conclusion), intelligible (clearly expressed, easy to understand) and justified (the reader should be able to understand the factual and legal foundation for the Inquiry Committee s conclusion). [40] The Registrar who reviewed the complaint, the Registrant's response and the hospital records is a medical doctor. The Inquiry Committee that approved of the Registrar's proposed disposition consisted of a panel of individuals including both physicians (representing various medical specialties) and public representatives. In my view, both the Registrar and the Inquiry Committee were well qualified to assess whether the Registrant s conduct met the clinical standards expected of physicians who are registrants of the College.

8 [41] In order to be considered "reasonable," an Inquiry Committee disposition must reflect an appropriate level of investigation and, more importantly, the disposition has to be supported by the evidence before it: Review Board Decision No HPA-056(a). [42] In this instance, the evidence before the Inquiry Committee was that the Registrant provided emergency care to the Complainant on a single date, October 12, The Inquiry Committee had before it a detailed description of the clinical care that the Registrant provided to the Complainant and the treatment that he ordered after consulting with a plastic surgeon at the Burn Clinic. The Registrant's response to the complaint was consistent with information contained in the hospital records provided by the Local Hospital. The Inquiry Committee also had information before it indicating that the Complainant did not attend to the Burn Clinic as he was directed by the Registrant but, instead, returned to the emergency department of the local hospital on two consecutive days. The Inquiry Committee was aware that the emergency room physicians at the Local Hospital repeated the Registrant's advice to the Complainant to attend the Burn Clinic each time he attended the local hospital. The Inquiry Committee was aware that the Complainant attended the Burn Clinic on October 16, 2014, and that the Burn Clinic assessment was consistent with the Registrant's diagnosis. [43] The Inquiry Committee's 6-page disposition letter fairly summarized the complaint and the Registrant's response to the complaint. It then set out the information that it gleaned about the Complainant's treatment by the Registrant and others from the hospital records provided by the Local Hospital and the Regional Hospital, including the Burn Clinic. Next, the Inquiry Committee set out the expectations that the College has for an emergency physician and detailed how the Registrant's clinical care met those expectations. As a result the Inquiry Committee concluded that the Registrant's care of the Complainant was "appropriate emergency medical care" and there was no evidence that the Registrant's clinical care negatively impacted the outcome of the Complainant's burns. There was a clear and logical progression to the disposition and it was written in language that a layperson could understand. [44] I can find no fault with the Inquiry Committee's analysis or with its disposition of the complaint under s. 32(3)(c) of the HPA. [45] After considering all of the above, I am satisfied that the Inquiry Committee's disposition was sufficiently transparent, intelligible and justifiable. In other words, it was reasonable. VII CONCLUSION [46] I have concluded that the disposition of this complaint by the Inquiry Committee was reasonable and I am exercising my authority under s.50.6 (8)(a) of the HPA to confirm it. Brenda Edwards Brenda Edwards Health Professions Review Board