Indexed as: Makerewich, L. (Re) THE DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO IN THE MATTER OF a Hearing directed by the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario pursuant to Section 26(1) of the Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended. B E T W E E N: THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO - and - DR. LEONARD MAKEREWICH PANEL MEMBERS: DR. W. KING (CHAIR) M. FORGET DR. P. POLDRE S. BERI DR. S. KAPOOR Hearing Date: December 12, 2012 Decision Date: December 12, 2012 Release of Written Reasons: March 27, 2013
2 DECISION AND REASONS FOR DECISION The Discipline Committee (the Committee ) of the College of Physicians and Surgeons of Ontario heard this matter at Toronto on December 12, 2012. At the conclusion of the hearing, the Committee stated its finding that the member committed an act of professional misconduct and delivered its penalty and costs order with written reasons to follow. THE ALLEGATIONS The Notice of Hearing alleged that Dr. Makerewich committed an act of professional misconduct: 1. under clause 51(1)(a) of the Health Professions Procedural Code (the Code ), which is Schedule 2 to the Regulated Health Professions Act, 1991, in that he has been found guilty of an offence that is relevant to his suitability to practise; and 2. under paragraph 1(1)33 of Ontario Regulation 856/93 made under the Medicine Act, 1991( O. Reg. 856/93 ), in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. RESPONSE TO THE ALLEGATIONS Dr. Makerewich admitted the allegations in the Notice of Hearing. FACTS The following facts were set out in an Agreed Statement of Facts which was filed as an exhibit: Background 1. Dr. Makerewich is a 64 year old Otolaryngologist and a Diplomate of the American Board of Sleep Medicine in practice at Niagara Snoring & Sleep Centre ( NSSC ), an independent health facility located in Niagara Falls. He obtained his
3 medical degree from the University of Toronto in 1972, and has been a member of the College of Physicians and Surgeons of Ontario (the College ) since 1978. 2. The College retained a medical inspector to review Dr. Makerewich s practice at NSSC. 3. Dr. Makerewich was assisted in his sleep assessments by Mr. X, Ph.D. Mr. X is not a physician and not permitted to practise medicine in Ontario as he is not a member of this College. In the course of his interview of Dr. Makerewich on May 28, 2010, the College s medical inspector acknowledged that Mr. X, Ph.D. DABSM [Diplomate of the American Board of Sleep Medicine] has as much knowledge and experience if not more than any sleep medicine physician that the medical inspector was acquainted with. 4. The medical inspector stated during the interview of May 28, 2010: that after reviewing the patient charts provided to him, that in his opinion the quality and detail of charting history, test results, examination, diagnosis and therapeutic recommendations was exemplary. Dr. Makerewich s Practice of Billing for a Special Surgical Consultation (A935A) 5. Dr. Makerewich s practice of billing special surgical consultations (billing code A935A) for patients seen in conjunction with Mr. X, Ph.D. was first raised with him by the College during his interview with the College medical inspector on May 28, 2010. 6. The Physician s Schedule of Benefits for a special surgical consultation A935A states: SPECIAL SURGICAL CONSULTATION Definition/Required elements of service: A special surgical consultation is rendered when a surgeon provides all the appropriate elements of a regular consultation and is required to devote at least fifty minutes exclusively to the consultation with the patient. [emphasis added]
4 [Commentary: The calculation of the 50 minute minimum excludes time devoted to any other service or procedure for which an amount is payable in addition to the consultation.] 7. Dr. Makerewich advised the medical inspector that he calculated the total time of the 50 minutes required for a A935A special surgical consultation as including the time spent by Mr. X, Ph.D. in assisting in the sleep assessment. 8. In his report dated July 15, 2010, the medical inspector opined that Dr. Makerewich s care met the standard of practice, but that his practice of billing for a special surgical consultation (A935A) was inappropriate as Dr. Makerewich did not himself personally spend the 50 minutes of time required by the Schedule of Benefits with the patient, as required by the Schedule of Benefits, but instead delegated part of this time to Mr. X. The medical inspector concluded: Following a review of all material described previously, it appears that Dr. Makerewich consistently and inappropriately [according to the requirements of the Physicians Schedule of Benefits] billed a Special Surgical Consultation [A935A] for all sleep consultations. Guilty of an Offence Relevant to the Practice of Medicine 9. On December 17, 2010, Dr. Makerewich was found guilty of knowingly receiving payment between January 16, 2006 and December 1, 2008 for insured services that he was not entitled to receive, contrary to section 43(1) of the Health Insurance Act, R.S.O. 1990, C.H. 6, thereby committing an offence pursuant to s. 44 of the Health Insurance Act. 10. Dr. Makerewich admitted that he submitted billings to OHIP, which OHIP paid, in respect of seven patient visits for two different patients which did not meet the requirements in the schedule of benefits because in each of these instances, he did not have a direct physical encounter with the patient or did not perform a physical examination. These patients were seen by Mr. X during their visits. Therefore, the
5 specific requirements of the OHIP service code were not met. The total billings at issue in the plea of guilty were $436.25. 11. It was agreed on Dr. Makerewich s guilty plea that: [T]he general practice in Dr. Makerewich s office was that, in each instance in which Mr. X, Ph.D., participated in an encounter with a patient, the patient would be seen initially by Mr. X, who would take a detailed history of the sleep complaint from the patient, and the patient would be subsequently seen by Dr. Makerewich. However, in respect of the patient visits [in respect of which the plea of guilty was made] the above general practice was not complied with in that the patient did not have a direct physical encounter with Dr. Makerewich, and/or Dr. Makerwich did not perform a physical examination on the patient. In each instance, however, Mr. X consulted with Dr. Makerewich concerning the patient, Dr. Makerwich made the diagnosis, and Dr. Makerewich signed any prescriptions given to the patient. 12. Copies of documents relating to the regulatory proceedings are attached as follows: (a) Information (Tab 1) [to the Agreed Statement of Facts]; (b) Agreed Statement of Facts (Tab 2) [to the Agreed Statement of Facts]; (c) Transcript of Guilty Plea dated December 17, 2010 (Tab 3) [to the Agreed Statement of Facts]. Incorrect Information Provided to the Court 13. The charges against Dr. Makerewich, to which he plead guilty (as set out above), were laid in June 2009. At the regulatory hearing in December, 2010, Dr. Makerewich advised the Court, that shortly after the charges were laid in this case, Dr. Makerewich substantially modified his practice and his OHIP billing practices to ensure that they conformed with the requirements set out in the Health Insurance Act and Regulations,
6 and that he ceased billing service code A935A for patients jointly seen with Dr. [X]. In fact, this was not correct, as Dr. Makerewich continued this practice until May 27, 2010. 14. In correspondence of September 19, 2011, counsel for Dr. Makerewich clarified when and why Dr. Makerewich stopped billing A935A billing codes. The correspondence referred to Dr. Makerewich s interview by the medical inspector on May 28, 2010 and stated that: [The medical inspector] expressed the view that, on his interpretation of the Schedule of Benefits, to bill an A935A code, a physician needed to spend 50 minutes or more with the patient himself or herself, and that none of this time could be delegated. Dr. Makerewich indicated that he disagreed, and had been interpreting the Schedule of Benefits to permit billing of this code when a portion of the time was delegated to [Mr. X] Ph.D. Based on [the medical inspector s] view of the matter, Dr. Makerewich decided it would be prudent to no longer bill A935A for patients seen in conjunction with [Mr. X] Ph.D. and he stopped doing this effective June 1, 2010. 15. A copy of the correspondence of September 19, 2011 is attached at Tab 4 [to the Agreed Statement of Facts]. ADMISSION 16. Dr. Makerewich admits the facts in paragraphs 1 to 15 above and admits that he has committed an act of professional misconduct, in that he has been found guilty of an offence that is relevant to his suitability to practice and that he engaged in disgraceful dishonourable or unprofessional conduct.
7 FINDINGS The Committee accepted as true all of the facts set out in the Agreed Statement of Facts. Having regard to these facts, the Committee accepted Dr. Makerewich s admission and found that he committed an act of professional misconduct, in that he has been found guilty of an offence that is relevant to his suitability to practise; and in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. PENALTY AND REASONS FOR PENALTY Counsel for the College and counsel for the member made a joint submission as to an appropriate penalty and costs order. The Committee was mindful of the law that a joint submission should be accepted unless to do so would be contrary to the public interest and bring the administration of justice into disrepute. After careful consideration, the Committee concluded that the proposed penalty would not be contrary to the public interest, and would not bring the administration of justice into disrepute. The relevant penalty principles considered by the Committee were specific and general deterrence, protection of the public, rehabilitation of the member, maintaining the integrity of the profession, and public confidence in self-regulation. In this era of fiscal constraint for escalating health care costs, the Committee wanted to ensure that the penalty would convey the message to all College members that improper billing of the Ontario Health Insurance Plan will not be tolerated as it is a breach of trust and has serious consequences for the sustainability of the overall health care system. The Committee considered aggravating and mitigating factors. Aggravating factors included the fact that there was not one, but three separate offences in this case: First, Dr. Makerewich has been found guilty under the Health Insurance Act for improperly billing for seven patients visits for which he did not have a direct physical encounter. Second,
8 Dr. Makerewich improperly billed for the special surgical consultation, A395A. He did not meet the criteria for this code which required that he spend the entire 50 minutes with the patient. Finally, during the regulatory proceeding, Dr. Makerewich incorrectly informed the court that he discontinued inappropriately billing the A935A after charges were laid in June 2009, when, in fact, he continued this practice of inappropriately billing A935A until May 27, 2010. Mitigating factors were substantial. Avoiding the costs and time of a contested hearing by having a joint submission with agreed facts was a mitigating factor. In addition, the Committee was informed that there was no evidence of intentional dishonesty or intent to deceive by Dr. Makerewich. The Committee heard that Dr. Makerewich s inappropriate billings were an aberration as opposed to a pattern. Further, after the interview with the College medical inspector on May 28, 2010, Dr. Makerewich immediately modified his practice, and discontinued billing the A935A billing code. During this same interview on May 28, 2010, the College medical inspector also stated that Dr. Makerewich s standard of care was exemplary, and, therefore, patient care was never put at risk at anytime as a result of these offences. In the regulatory proceedings, Dr. Makerewich pled guilty and paid a $10,000 fine for receiving payment of $436.25 for insured services he was not entitled to receive. Finally, Dr. Makerewich had no discipline history before the College, nor any prior offences under the Health Insurance Act. The Committee reviewed whether the proposed penalty was consistent with the penalties ordered in six previous cases cited in a Book of Authorities filed by the College with the Committee. These cases dealt with various forms of inappropriate billing of the Ontario Health Insurance Plan. While the Committee was not bound by these prior cases, they were used as a guide. After lengthy deliberation, the Committee concluded that the proposed penalty was within the range of previous penalties for similar cases, albeit at the higher end of that range. College members have a responsibility to know, understand, and adhere to the Ontario Schedule of Benefits when billing for services. Improper billing ultimately compromises patient care by limiting the availability of OHIP funds. Furthermore, appropriate guidelines and regulations for delegation must be followed as physician extenders are used more frequently in the health care system.
9 The Committee found that the penalty and costs order jointly proposed was consistent with the public interest, and appropriate in the circumstances of this case. ORDER Therefore, having stated the findings in paragraph 1 of its written order of December 12, 2012, the Committee ordered and directed, on the matter of penalty and costs, that: 2. the Registrar suspend Dr. Makerewich s certificate of registration for a period of two (2) months commencing immediately. 3. Dr. Makerewich attend before this panel to be reprimanded. 4. the Registrar impose the following term, condition and limitation on Dr. Makerewich s certificate of registration: (i) Dr. Makerewich must successfully complete, at his own expense, Collegefacilitated instruction in Ethics within one year from the date of this Order. 5. Dr. Makerewich pay costs to the College in the amount of $3,650.00 within thirty (30) days of the date of this Order. At the conclusion of the hearing, Dr. Makerewich waived his right to an appeal under subsection 70(1) of the Code and the Committee administered the public reprimand.