Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: 250 953-4956 Toll Free: 1-888-953-4986 (within BC) Facsimile: 250 953-3195 Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 Website: www.hprb.gov.bc.ca Email: hprbinfo@gov.bc.ca DECISION NO. 2015-HPA-016(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, (the Act ) 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: Karima Bawa, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on June 17, 2015 APPEARING: For the Complainant: Self-represented I STAGE 1 HEARING [1] The review of the Inquiry Committee s disposition was based solely on the record of investigation provided by the College and submissions received from the Complainant. II INTRODUCTION [2] On the morning of Saturday, March 22, 2014, the Complainant suffered a loss of vision and attended the emergency room ( ER ) at the hospital where the Registrant was the attending ER physician on duty (the First Hospital ). The Complainant had lost most of the vision in his left eye. While at the ER, the Complainant was examined by a medical student and the Registrant. During that time, the Complainant told the Registrant about his history with a vitreous detachment. The Registrant did not treat the Complainant and suggested to the Complainant that he see an eye specialist on Monday. The Registrant also did not refer the Complainant to an eye specialist at another ER as he requested. [3] The Registrant states that she was concerned that the Complainant had a possible detached retina and hence she discussed his case with the on-call ophthalmologist who told her that he would urgently see the patient on Monday (March 24, 2014) at 8 AM in his office and that he would arrange for any necessary treatment or surgery at that time. The Registrant states that she advised the Complainant about this
DECISION NO. 2015-HPA-016(a) Page 2 plan for follow-up with the on-call ophthalmologist. When the Complainant was dissatisfied with this course of action and requested to see another ophthalmologist that day, she discussed with him the option of presenting himself to the ER of another hospital for assessment. [4] The Complainant states that he was not advised about the Registrant s consultation with and referral of his care to an ophthalmologist. Instead the Complainant states that he was told to see his optometrist on Monday morning. [5] After leaving the hospital, the Complainant consulted with a family member and later that day, went to the ER at a second hospital (the Second Hospital ). The ER physician at the Second Hospital advised the Complainant to return to that hospital eye clinic later that same evening. At the eye clinic, the Complainant was diagnosed with a detached retina and a gas was injected into his eye that night. The following day, Sunday, March 22, 2014, the Complainant returned to the same eye clinic and underwent laser surgery to reattach his retina. The Complainant states that he was advised by the doctors that he saw at the Second Hospital that waiting until Monday for treatment could have resulted in the Complainant suffering from a complete loss of vision. III SUBMISSIONS OF THE COMPLAINANT [6] In his complaint to the College, the Complainant states: On the morning of March 22nd 2014 I went to the [First Hospital] Emergency for treatment of my left eye. That morning as I was going to work I lost most of the vision in my left eye. After waiting two and a half hours I was examined and questioned by a medical student and [the Registrant]. I had told [the Registrant] about my vitreous detachment in late January. After briefly examining me [the Registrant] asked for my optometrists name which I provided. [The Registrant] then left, returned minutes later, and told me not to worry about my eye and that I should visit my optometrist early Monday morning. I told her that I was worried since I was near blind in my left eye and I wasn t returning home until I saw a specialist. I asked her if she, [the Registrant], could send me to an eye specialist at another hospital. She bluntly told me no that she didn t know of any eye specialist in the entire lower mainland! I told her that since she is a Doctor she might be a little more plugged into the medical system then I was. She then suggested I might find someone to examine and treat me at [AB Hospital] and that if they didn t have an eye specialist that I should then go to the [CD Hospital] and if they didn t have a specialist there that I should go to [EF Hospital]. I told her that I had a problem with her suggestion of spending two or three hours at each hospital until I located an eye specialist. I was at the [First Hospital] Emergency for a reason. As I was leaving the hospital I called my sister who had a tear in her retina the year before. I hung up from the call and within a few minutes she returned my call and said she had found an eye specialist at the [the Second Hospital]. (Note my sister is not a doctor). I then made a bee-line to [the Second Hospital]. After being examined by the Doctor in Emergency I was given the address and a time, 7:00pm to see a specialist at the [Second Hospital] Eye Clinic. The Doctor who examined me that evening told me that she was very concerned about me from the description the Doctor in Emergency gave her about my loss of sight. Within a few minutes she confirmed that I had a
DECISION NO. 2015-HPA-016(a) Page 3 detached retina! An hour after that another Doctor at the Eye Clinic confirmed that I had a detached retina and ejected a gas into my eye. The following day (Sunday) I returned to the Eye Clinic at [the Second Hospital] for almost 30 minutes of laser surgery to reattach my retina. I was told by both these doctors that if I had taken the advise of the Doctor at the [First Hospital], to wait until Monday morning, that I could have permanently lost the sight in my left eye! They said the best thing I did was ignore the Doctor at the [First Hospital]. [7] In his letter of February 12, 2015 to the Review Board, the Complainant expresses doubt about the veracity of the Registrant s response to the College where she claims to have contacted the on-call ophthalmologist. He also cites various medical references which outline the importance of urgent treatment for retinal detachment. [8] In his letter to the Review Board dated June 17, 2015, the Complainant again makes many of the same points made in his February 12 th letter, sets out a number of questions for consideration and asks that the Review Board take disciplinary measures against the Registrant for gross incompetence for misdiagnosing a detached retina and refusing to treat a medical emergency. He also asserts that [the Registrant s] report from the [First Hospital] is riddled with mistakes: (a) vitreous detachment. no retinal detachment (000013) (b) DIAGNOSIS "no retinal detachment (000013) (c) 2 months post eye surgery (000014) I did not have surgery 2 months prior. (d) no retinal detachment (000014) (e) [the Registrant] did not diagnose a retina detachment no retinal detachment (000019 & 000020). IV RESPONSE FROM THE REGISTRANT [9] In response to the Complainant s submissions to the College, the Registrant states: [The Complainant] was seen and assessed by myself on Saturday March 22, 2014 at approximately 1300HR. Given his history, I was concerned with regards to a possible retinal detachment to the left eye. I discussed and referred his case to the ophthalmologist on call. He advised me that he would urgently see the patent on the following Monday March 24, 2014 at 8AM in his office and that he would arrange for any necessary treatment or surgery at that time. [The Complainant] was informed of this plan for follow-up with [the ophthalmologist on call] on Monday morning. He was not pleased with this and requested to see another ophthalmologist that same day. Unfortunately, there is no direct referral process from the [First Hospital s] Emergency Department to other sites with ophthalmology coverage. Should a patient wish for another opinion from another hospital, he or she will need to present themselves to another emergency department for assessment. This alternate option was provided to the patent.
DECISION NO. 2015-HPA-016(a) Page 4 [The Complainant s] provisional diagnosis was to rule-out a retinal detachment and as such, I had consulted and arranged for the necessary follow-up with an ophthalmologist. With respect to the timelines for follow-up, I defer that to my specialist consultant. In acknowledging [the Complainant s] experience and complaints, my department is reviewing other possible avenues for ophthalmology referral. This case has reminded me that a patient s understanding of the medical journey is sometimes, as important as the end result. I hope that clarification about the events surrounding his care, and the process by which a patient accesses medical care within our current system has been helpful to [the Complainant]. It has been and continues to be my goal to provide medical care with empathy and effective communication. V APPLICABLE LAW A. Legislation [10] My mandate in reviewing the decision of the Inquiry Committee is governed and limited by the Act to considering the adequacy of the investigation and the reasonableness of the disposition. Specifically, section 50.6(5) of the Act states as follows: On a 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. B. The Adequacy of the Investigation [11] The role of the Review Board in assessing the adequacy of the investigation is to determine whether the Inquiry Committee s investigation provided it with sufficient information to assess the complaint made against the Registrant. The test is one of adequacy; not perfection. Adequacy does not require that the investigation has to be exhaustive. Also it is not the role of the Review Board to reinvestigate the complaint or to substitute its decision for that of the Inquiry Committee. [12] The test for assessing what constitutes an adequate investigation was set out in Review Board Decision No. 2009-HPA-001(a) to 0004(a) as follows: [97] A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain key information that would have affected the Inquiry Committee s assessment of the complaint. [98] The degree of diligence expected of the College what degree of investigation was adequate in the circumstances may well vary from complaint to complaint. Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to
DECISION NO. 2015-HPA-016(a) Page 5 the College will all be relevant factors in determining whether an investigation was adequate in the circumstances. C. The reasonableness of the Disposition [13] The test for determining whether a disposition is reasonable was set out in Review Board Decision No. 2014-HPA-068(a) as follows: [16] The test the Review Board has traditionally applied to determine reasonableness is whether the Inquiry Committee s disposition falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained. I see no basis to depart from this view. I only note that the range of acceptable and rational solutions and what is sufficient justification, transparency and intelligibility in a particular case is a question to be determined by the Review Board on a case by case basis, applying its expertise and specialized role in good faith, and not simply by comparison to how a generalist court might apply the test on judicial review. [17] The Review Board is not to decide whether the Inquiry Committee s decision was right or wrong, and administrative law does not require that the disposition be one that the Review Board would have made. Rather, as mentioned above it must be a disposition that is supported by the evidence from the investigation, and one that fits within the range of acceptable and rational outcomes. VI STAGE 1 OR STAGE 2 [14] This complaint has been referred to a Stage1 hearing. At this stage, the options available to me are to: (a) confirm the Inquiry Committee s disposition under section 50.6(8)(a) of the Act if the application for review can be fairly, properly and finally adjudicated on the merits without the need from 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. VII ANALYSIS A. The Adequacy of the Investigation [15] The investigation into this complaint was not perfect in that the Inquiry Committee does not appear to have verified with the ophthalmologist on call, the Registrant s version of events in so far as they relate to her interactions with him. Also the disposition letter of January 15, 2015 (the Disposition Letter ) does not specifically identify and address potential inaccuracies in the Registrant s report as set out in paragraph [8] above.
DECISION NO. 2015-HPA-016(a) Page 6 [16] With respect to confirmation of whether the Registrant spoke to the ophthalmologist on call, the Inquiry Committee specifically relied on notes in the ER chart as confirmed by the following statement in its Disposition Letter: This conversation between the ophthalmologist and [the Registrant] was documented by [the Registrant] on your ER chart. While it would have been preferable for the Inquiry Committee to seek independent confirmation from the ophthalmologist on call about his conversation with the Registrant, in my view in the present circumstances, it was entirely reasonable for the Inquiry Committee to rely on the Registrant s notes on the Complainant s ER chart which reflect the conversation as described in the Registrant s response to the College. [17] As to the issue of potential discrepancies in the ER chart, while the Inquiry Committee does not reference the specific language contained in the ER chart, it is clear from the language in the Disposition Letter that the Inquiry Committee reviewed the ER chart. Furthermore, in my view, the existence of any potential inconsistencies as asserted by the Complainant did not warrant a further investigation as: (a) the Inquiry Committee s determination was not focused on whether the Registrant correctly or incorrectly diagnosed a retinal detachment: Our review is to determine whether the care provided to you by [the Registrant] met the standard expected of an emergency physician. The records of [the Registrant] indicate she was suspicious that your vision loss represented a retinal detachment. She discussed your symptoms with the ophthalmologiston-call, who provided an appointment for 36 hours later. This was reasonable management. (b) the Registrant does not contend that she diagnosed a retinal detachment. She specifically states that: [The Complainant s] provisional diagnosis was to rule-out a retinal detachment and as such, I had consulted and arranged for the necessary follow-up with an ophthalmologist. It is to be noted that the notations in the ER chart in fact support the Registrant having considered the issue of whether the Complainant had a retinal detachment. [18] The question before me is did the Inquiry Committee, conduct an adequate investigation? While in my view, there were some shortcomings in the investigation as identified at paragraph [15], the test I am to apply is one of adequacy not perfection. The investigation did not have to be exhaustive and complete to be adequate. What is required is that the Inquiry Committee took reasonable steps to obtain the key information that would enable it to assess the complaint. [19] Having reviewed the information and submissions, in my view, the Inquiry Committee took reasonable steps to obtain the key information that would enable it to assess the complaint and that its investigation was adequate since in investigating the complaint, the Inquiry Committee: (a) reviewed the Complainant s letter dated April 30, 2014;
DECISION NO. 2015-HPA-016(a) Page 7 (b) sought and reviewed the response to the complaint from the Registrant wherein she detailed her recollection of the consultation with the Complainant and provided an explanation for her actions; (c) sought and reviewed the hospital records at the hospital where the Registrant attended to his care; (d) sought and reviewed the medical records of the Second Hospital where the Complainant was treated; and (e) provided the Registrant s response to the Complainant and invited further submissions from the Complainant should he wish to provide for their consideration any new facts believed to be of particular significance to the issues at hand. B. The Reasonableness of the Disposition [20] In this case, the Disposition Letter: (a) outlines the information that was obtained and reviewed by the Inquiry Committee; (b) summarizes the Complainant s basis for the complaint; (c) summarizes the response of the Registrant; (d) sets out the Inquiry Committee s analysis of the care received by the Complainant; and (e) provides reasons for the Inquiry Committee s conclusion that the Registrant met the standard of care expected of an ER physician. [21] Notably, the Disposition Letter specifically addresses the Complainant s concern that had he waited until the Monday to be treated that he would have permanently lost his vision as follows: We understand you were advised that if you had waited until Monday, you may have permanently lost your vision. However, it is common practice to defer treatment of retinal detachment for a few days. We draw the analogy of appendicitis: immediate surgery is recommended for the treatment of appendicitis, but in reality this surgery is delayed by hours, and not infrequently, by days. [The Registrant] managed you appropriately by discussing your care with an ophthalmologist. Different ophthalmologists will have a slightly different approach to the urgency of assessing patients with a suspected retinal detachment. The ophthalmologist was reasonable in providing you with an appointment within 48 hours. Our review has concluded that [the Registrant] provided reasonable and appropriate emergency medicine care. It is understandable that you felt otherwise, and we hope that this review has provided you with some measure of understanding. While your condition required ophthalmological intervention, a delay of 36-48 hours was not unreasonable, and reflects standard practice.
DECISION NO. 2015-HPA-016(a) Page 8 [22] The Disposition Letter also specifically addresses the Complainant s concern that the Registrant did not advise him about the arrangements she had made for him to see an ophthalmologist on Monday morning as follows: We note from your complaint that you understood your Monday morning appointment to be with an optometrist rather than an ophthalmologist. We ask that [the Registrant] consider that her communication with you in this regard, left you with a misimpression, which may have contributed to your dissatisfaction with her care. [23] Prior to issuing its Disposition Letter, the College also provided the Registrant s response to the Complainant and invited further submissions from the Complainant should he wish to provide for their consideration any new facts believed to be of particular significance to the issues at hand. [24] Having reviewed the information and submissions, the question before me is whether the disposition is supported by the evidence and if the disposition by the Inquiry Committee fits within the range of acceptable and rational outcomes. My role is not to decide whether the Inquiry Committee s decision was right or wrong. [25] I find that this was a reasonable disposition which was acceptable and rational and in the context of the record is sufficiently justified, transparent and intelligible to be sustained and finally adjudicated on its merits without the need for further submissions from the College or the Registrant. VIII DECISION [26] I find that in this matter there has been an adequate investigation and that the disposition of the Inquiry Committee was reasonable. I confirm the disposition of the Inquiry Committee. [27] In making this decision, I have considered all of the information and submissions before me, whether or not they are referred to in these reasons. Karima Bawa Karima Bawa, Panel Chair Health Professions Review Board September 16, 2015