Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: 250 953-4956 Facsimile: 250 953-3195 Toll Free: 888 953-4986 (within BC) Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 DECISION NO. 2009-HPA-0071(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 and Surgeon REGISTRANT BEFORE: Lorianna Bennett, Member DATE: Conducted by way of written submissions concluding on August 23, 2010 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Lara Zee, Counsel Penny A. Washington, Counsel DECISION ON THE MERITS I DECISION [1] Upon reviewing the decision of the College Inquiry Committee and considering the application made by the Complainant under s.50.6 of the Health Professions Act R.S.B.C. 1996 c.183 as amended (the Act ) to the Health Professions Review Board (the Review Board ), it is my decision that the disposition of the College Inquiry Committee is confirmed. II INTRODUCTION AND BACKGROUND [2] In an application for review dated November 30, 2009 and received by the Review Board on December 2, 2009, the Complainant requested a review of the decision of the Inquiry Committee of the College (the Inquiry Committee ) in regards to the Registrant.
DECISION NO. 2009-HPA-0071(a) Page 2 [3] In her application, the Complainant states that she needs to know if there are policies and/or protocol regarding lack of treatment should patients be elderly. More specifically, she finds Vancouver General Hospital ( VGH ) ought to be at least somewhat responsible for the early death of her elderly father as they discharged him from their emergency department while he was not well at the time. [4] Following the death of her late father, the Complainant filed complaints with the College against four registrants who were involved with either the direct care or care review of her father. One of those registrants is the subject of this review. [5] The Inquiry Committee investigated the Complainant s complaints with respect to all of the registrants. In response to the complaint against this particular registrant, the Inquiry Committee concluded that the Registrant s conduct in the circumstances was reasonable, and that the Registrant was not in breach of any ethical standard or professional misconduct in dealing with the situation as he did. [6] The Complainant, presumably dissatisfied with the decision of the Inquiry Committee, asks the Review Board to conclude that the Inquiry Committee s investigation was not reasonable. [7] The Complainant s original complaint to the College is dated May 6, 2009, and it follows the passing of the Complainant s elderly father on July 30, 2007 at Mount Saint Joseph Hospital ( MSJH ). [8] The Complainant s father was 95 years old with a history of various medical conditions, most notably heart disease, anemia, congestive heart failure and hypertension. [9] The Complainant s father medical history includes multiple admissions to VGH and MSJH on various occasions. [10] By way of further background, on July 29, 2007, the Complainant s father was brought to VGH Emergency department at approximately 7:30 pm where he was assessed by the Senior Resident and the staff emergency physician. [11] The assessment included a chest x-ray, an electrocardiogram and blood test. The diagnosis was recurrent chest pain, renal insufficiency and anemia. [12] The Complainant s father was held overnight, and the next morning a staff member called the Complainant to pick up her father. He was discharged into the care of the Complainant at 11:15 am. [13] The Complainant alleges that this discharge was against her will, that her father was too sick to leave, and that he ought to have remained admitted. She says that the VGH discharge nurse indicated that she would discharge her father home in a taxi if the Complainant did not attend by a certain time to retrieve him. The Complainant complied, albeit reluctantly. [14] Later that evening, the patient (still unwell) was taken by ambulance to MSJH where he was re-admitted and sent for x-rays. The Complainant states that she directed
DECISION NO. 2009-HPA-0071(a) Page 3 her father be transported to MSJH as opposed to VGH because she did not want to run the risk that VGH would not admit him, particularly given her experience with the discharge nurse earlier the same day. [15] At MSJH, the Complainant s father was diagnosed with untreated pneumonia and renal failure. He expired the same day, on July 30, 2007. [16] Almost two years later, on May 1, 2009, the Complainant filed a complaint with the College in regards to four of the registrants of VGH who were either involved with the treatment and/or administrative review of her late father and in particular during the days of his most recent admission. [17] With regard to this Registrant, the Complainant (in her complaint form to the College) states: no Dr. around, the head nurse, [ ],sending my father home, while he is having pains I beg nurse to let my dad stay he is very sick that day, or he will be send home in a taxi and we been discharge by force. [18] The College investigated the complaint and, on October 26, 2009 wrote a 10 page letter to the Complainant disposing of her complaint. [19] In response to the complaint relating to the Registrant, the College concluded: [the Registrant] did not directly treat your father while he was hospitalized His involvement was to review the complaint which you put forward and his involvement was to advise the Director of Medical Affairs which was summarized in a letter to you dated December 11, 2007. [20] The Complainant wrote to this Review Board on November 30, 2009 requesting a review of the Inquiry Committee disposition. In the letter attached to her application, the Complainant states: My main concerns and complaint is that my father would have rather died on the operating table knowing that something was at least attempted to be done rather than no treatment at all. He suffered for seven years without any real treatment and his pain was ignored time and time again upon admissions. My father did not have a heart attack but rather chest pains and that was my concern. [21] In her statement of points to the Review Board, the Complainant speaks to her belief that the poor medical management of VGH and the treatment and/or direction provided by the four registrants resulted in the premature death of her late father, and accordingly she disputes the College s disposition of her complaint. [22] Following the process of written submissions to the Review Board, the Complainant filed a sur-reply which was received by the Review Board on September 24, 2010. [23] In her sur-reply, the Complainant reiterates her position that she feels the investigation was inadequate as none of her questions were answered. She says that
DECISION NO. 2009-HPA-0071(a) Page 4 her issue is not with all the doctors treatments as they were excellent in what they do providing care and quality treatment. Her issues can be summarized as follows: (a) When the discharge nurse called her (on July 29, 2007), she wanted the Complainant to pick up her father by 10:00 am. The Complainant could not be there that early, and the discharge nurse advised that if the Complainant did not arrive by 10:00 am, she would send the Complainant s father home by taxi. (b) The discharge nurse was going to send her father home in pain. The Complainant requested oxygen for her father to which the discharge nurse argued with her and then responded that it would cost $500. It wasn t until the discharge nurse called the oxygen therapy department to check on the patient s oxygen requirement that she was finally compliant. (c) The Complainant was begging the discharge nurse to allow the patient to stay in emergency given his ongoing pain, but the discharge nurse did not allow this. (d) The Complainant s father was forcibly discharged, despite his ongoing pain. [24] In her sur-reply, the Complainant again reiterates her concern saying: sending my dad home with severe pain, neglect, and being ignored by the nurse who documented his pains, then being discharged are my issues. These are my main concerns that are not being addressed or answered. [25] In a letter of direction dated October 14, 2010, the Review Board asked the College and the Registrant for submissions on the sur-reply. [26] In response, the Registrant submitted that the sur-reply should not be considered at all as the deadline for reply submissions concerning this application had long passed. The Registrant also noted that part of the enclosures accompanying the sur-reply refer to allegations against a nurse employed by VGH, which allegations are outside the mandate of the College and therefore out of the purview of this review. [27] The Review Board has considered the sur reply and the response submissions of the Registrant in making its decision. [28] Turning now to the statement of points, the College points out that the Registrant did not provide any clinical care to the Complainant s father, and that his involvement was limited to his administrative role in reviewing the file and assisting VGH with a written response of December 11, 2007 to the Complainant s concerns. [29] The College further contends that the Inquiry Committee s investigation with respect to the Registrant was adequate and its disposition reasonable. [30] In his statement of points, the Registrant identifies that he was the medical director of the Emergency Critical Care and Trauma Department at VGH and had no personal involvement in the care of the Complainant s late father. He confirms what has already been noted by the College, that he simply participated in the review of the case
DECISION NO. 2009-HPA-0071(a) Page 5 which was conducted by the administration of VGH in response to letters written by the Complainant setting out her concerns about her father s care and unfortunate death at the age of 95. [31] The Registrant adopts the factual background laid out by the College, together with the College s submissions regarding the adequacy of the Inquiry Committee s investigation and the reasonableness of its disposition. III ISSUE [32] The main issue on this application is to determine whether the investigation conducted by the Inquiry Committee was adequate and, whether the disposition of the Inquiry Committee was reasonable. IV DISCUSSION AND ANALYSIS A. Application for Review on the Merits [33] The Review Board s powers on a review are set out in s. 50.6(8) of the Act which states that the Review Board may do one of the following on completion of a review of an Inquiry Committee disposition: (a) (b) (c) confirm the Inquiry Committee s disposition; direct the Inquiry Committee to make a disposition that could have been made by the inquiry Committee in the matter or send the matter back to the Inquiry Committee to reconsider the matter with specific directions. [34] The Review Board has no authority to make a finding of misconduct or discipline a member of any college (2009-HPA-0034(a) at para. 45). [35] It must be understood that in order for the Review Board to either direct the Inquiry Committee to make a different disposition or send the matter back to the Inquiry Committee to reconsider the matter, the Review Board must first make a finding that the disposition of the Inquiry Committee was either inadequate or unreasonable. These limits to the Review Board s jurisdiction are set out in s. 50.6(5) of the Act which reads: (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) (b) the adequacy of the investigation conducted respecting the complaint; and the reasonableness of the disposition. [36] Section 50.6 (6) adds that the review is conducted on the record, meaning that it is not a trial de novo. Therefore, the review is necessarily limited to a reconsideration of the issues, with a view to determining whether the investigation was adequate and whether the decision was reasonable.
DECISION NO. 2009-HPA-0071(a) Page 6 [37] The standard which the Review Board must apply when considering what is reasonable and/or adequate has been previously addressed by the Review Board in 2009-HPA-0001(a)-0004(a) para. 89: The Legislature s choice of the words reasonable and adequate make clear that the Legislature has not tasked the Review Board with the role of determining whether the Inquiry Committee has made the ideal disposition or conducted the perfect investigation. A disposition will only be unreasonable and an investigation will only be inadequate if it falls below the appropriate standard of review. [38] Put another way, in considering the standard of review the Review Board considers whether the Inquiry Committee has taken reasonable steps to investigate and obtain key information from relevant sources. This standard obliges the Inquiry Committee to conduct an investigation with a degree of due diligence whereby the Inquiry Committee considers and attempts to obtain evidence from those Registrants that are the subject of the complaint, as well as from relevant collateral sources. In doing this, the Inquiry Committee should strive to gather information that is directly relevant to the subject Registrant and the particular complaint filed. It is reasonable to assume that the more serious the complaints, the higher the degree of due diligence expected by the Inquiry Committee. [39] Equally important (although not mandated) is the ability of the Inquiry Committee s to identify and if possible, elaborate on the steps it has taken in the investigative process. As noted in 2009-HPA-0044(a) para 64: The College contends that it took reasonable steps to obtain the key information necessary to properly investigate the complaint. In reviewing its disposition, however, I note that the Inquiry Committee did not elaborate on the regulations, policies, codes of conduct etc. upon which it relied. Had it done so, the Inquiry Committee s reasoning may have been clearer to all parties and in particular to the Complainant who lacked understanding of the College s investigative process. [40] Having said all of this, the degree of due diligence will vary for each complaint, but regardless of the complaint, the test for due diligence is not one of perfection. In other words, a perfect investigation is not required. [41] In this review, both the College and the Registrant take the position that the investigation was not only adequately conducted but also that the disposition was reasonable. [42] The College not only identifies but elaborates on all of the steps taken by the Inquiry Committee during the investigative process. The Registrant adopts the College s submissions. [43] The Complainant takes the position that the investigation was inadequate presumably because none of her questions (relating to the manner in which her late father was discharged from VGH on July 29, 2007) were answered.
DECISION NO. 2009-HPA-0071(a) Page 7 [44] Specifically, the Complainant is dissatisfied with the disposition of the College Inquiry Committee because it did not address the actual issue which according to the Complainant is: My issue is that I am looking for the answer to as why he was discharged home by the discharge nurse when he was in severe pain. I would also like to know where in your policies it states that a patient can be flagged from ER what are the circumstances for this to occur. [45] As noted above, the Registrant had no personal involvement in the care of the Complainant s late father. His involvement was limited only to a review of the case which was conducted by the administration of VGH in response to letters written by the Complainant setting out her concerns about her late father s care and unfortunate death. [46] Upon receiving the Complainant s letter of complaint on May 6, 2009, the College took the following steps in response: (a) Within two weeks, the College acknowledged receipt of the Complainant s letter and advised her that it would be seeking comments from the physician[s] named in her complaint. (b) The College further advised the Complainant that, in order to conduct a more thorough review, it would like to receive comment from the treating physician at MSJH. (c) The College requested that the Complainant sign and return an enclosed consent form authorizing the release of that information. (d) By letter dated May 19, 2009, the College wrote to the Registrant asking for his comments with respect to the statements contained in the letter. In addition, the College asked the Registrant to provide any additional comment that he felt might be of assistance to the College in resolving the matter. (e) On May 19, 2009, the College sent similar letters to three other registrants at VGH who were involved either directly or indirectly with the care of the Complainant s late father. (f) By letter dated May 19, 2009, the College wrote to the Records Administrator at MSJH seeking hospital records for the Complainant s late father from June to July 2007. (g) By letter dated May 19, 2009, the College wrote to the Records Administrator at VGH seeking hospital records for the same period of time. (h) By letter dated June 23, 2009, the College wrote to the attending physician at MSJH requesting a summary of his attendance upon the Complainant s late father as well as a copy of any relevant medical records. (i) The College received and considered the responses received from the Registrant and from the three other registrants at VGH. (j) The College received and considered the medical information received from both hospitals for the period of June to July 2007.
DECISION NO. 2009-HPA-0071(a) Page 8 (k) The College received and considered the response received from the treating physician at MSJH and his summary of attendance upon the Complainant s late father. [47] I note that the Complainant does not appear to take any issue with the fact that the above noted steps were, in fact, taken by the College s Inquiry Committee. [48] The Registrant s response to the College was dated June 10, 2009. Therein, the Registrant confirmed his limited involvement in the care of the Complainant s late father. [49] He states his thoughts on the case are summarized in the letter of December 11, 2007 from Vancouver Coastal Health to the Complainant. [50] He reiterates that he had no personal involvement with the patient and, as such, has no office notes, consultations or operative reports. He concludes his letter by stating, please feel free to contact me if you have any questions or if you think I can be of help resolving this issue. [51] The letter of December 11, 2007 from Vancouver Coastal Health to the Complainant was written in response to a letter written by the Complainant to the Registrant on September 17, 2007. [52] That letter addresses the very concerns that the Complainant raises in her sur- reply. Specifically, the letter states: your father, was brought to Vancouver General Hospital Emergency Department at 7:30 PM on July 29, 2007 [your father] was very clear, as he had been on previous admissions, that he wanted to be treated at home rather than being hospitalized. The diagnosis was recurrent chest pain, renal insufficiency and anemia. As it was about midnight, we followed our usual protocol, which is to hold elderly patients overnight to ensure their supports are in place the next day rather than have them go home when family might not be available [your father] was discharged home with you at 11:15 AM on July 30. The geriatric nurse specialist [ ] also assessed your father on the morning of July 20 th and was aware that although he wanted to go home [sic] he was fearful of being alone and was reluctantly willing to consider long term placement When you arrived to collect your father you spoke with [geriatric nurse specialist] about him needing home oxygen he was going home with oxygen. Please be assured your father s discomfort was not being ignored. The Emergency Physician knew he had recurrent chest pain related to his critical multi-vessel coronary artery disease [he] had a chest x-ray, an electrocardiogram and blood tests done to see if anything else was going on which might have been responsible for his recurrent chest pain but the Emergency Physician, in his judgment, considered that [your father s] heart condition was responsible for his pain We did not believe he had pneumonia
DECISION NO. 2009-HPA-0071(a) Page 9 [53] The Complainant is, understandably, extremely upset at the loss of her father and the circumstances under which his passing occurred. [54] The Complainant has a background in nursing. She has provided volumes of medical records which, in her educated opinion, suggest that several other factors played a role in her father s medical condition, and that these other factors if properly addressed, would have avoided her father s ultimate and untimely death. [55] I have reviewed and considered all of the medical information provided by the Complainant and contained in the record. However, it is not within the ability or authority of this Review Board to interpret this medical information nor is it within the ability or authority of this Review Board to make any findings of fact on the information or on the actual cause of death. [56] Rather, the Review Board s role and jurisdiction is limited to assessing whether the College Inquiry Committee s investigation was adequate, and whether the Inquiry Committee s disposition was reasonable in concluding that the Registrant was not in breach of any ethical standard or professional misconduct. [57] In consideration of the undisputed facts surrounding the steps taken by the College to investigate the complaint, I am satisfied that the College adequately conducted its investigation. There is nothing in the information and record before me to suggest that the College failed to exercise due diligence, or that it did anything short of a full investigation into this complaint. [58] Turning now to the reasonableness of the disposition, I refer to the decision of McKee v. Health Professions Appeal and Review Board, [2009] O.J. No. 4112 (Ont. S.C.J.) (QL) which both the Registrant and College have referenced. In that case, the Ontario Superior Court considered the role of that jurisdiction s analogous committee when it concluded that the Board s jurisdiction was within the range of reasonable. At paragraph 44, the Court held that where the committee s disposition was within the range of reasonable the review board had no jurisdiction to interfere with it. [59] It is in the context of McKee (supra) that I must consider the reasonableness of the College s disposition. [60] From his review of the hospital records, the Registrant has determined that the Complainant s father was appropriately assessed by the treating physicians and that his discharge was in accordance with the plan that had previously been discussed, and agreed to, with the Complainant s father during a family meeting in which a translator was used. [61] There is no evidence anywhere in the record to suggest that the Complainant and/or her father were treated with discrimination of any kind. [62] Further, with its Statement of Points and in answer to the Complainants question regarding the policies followed by VHG, the Registrant has provided a copy of the Respectful Workplace and Human Rights Policy that VGH adopts, in addition to a copy
DECISION NO. 2009-HPA-0071(a) Page 10 of its statement of the rights of patients entitled Partners in Care: expectations and responsibilities. [63] Ultimately, and despite her complaint form to the College received May 9, 2009, the Complainant is not critical of the Registrant. [64] She has made no complaint with respect to the particular conduct of this Registrant. She has made no complaint with respect to any clinical or other decisions he has made in connection with her father s care. [65] To the contrary, the Complainant states in her sur-reply my issue is not with all the doctors treatments as they were excellent in what they do providing care and quality treatment. I infer that when she makes this statement, she is including reference to the Registrant. V CONCLUSION [66] Given that the Complainant has alleged no particular complaint against the Registrant, and given the undisputed facts surrounding the investigation as they exist in this case which I have summarized above, I am satisfied the College s disposition was reasonable. [67] In summary, and for all of the reasons set out above, and applying the standards of review to the written submissions provided by all parties, I find the Inquiry Committee s investigation was adequate and the disposition of the investigation reasonable. [68] In making this decision, I reiterate that I have considered all of the information and submissions before me, whether or not they are referred to in these reasons. Lorianna Bennett Lorianna Bennett, Member Health Professions Review Board March 7, 2011