Indexed as: Ontario (College of Optometrists of Ontario) v. Miller,

2020 ONCO 1

Panel: Ms. Ellen Pekilis, Chair Dr. Jenna Astorino

Mr. Bashar Kassir Dr. Kamy Morcos Dr. Christopher Nicol

The College of Optometrists ) Ms. Julia Martin

of Ontario ) Counsel for the College

) of Optometrists of Ontario

and - )

Dr. Gregory Miller ) Self-represented

) Ms. Julie Maciura

) Independent Legal Counsel

This matter came before a Panel of the Discipline Committee of the College of Optometrists of Ontario (the “College”) on December 4, 2019, at Victory Verbatim, 222 Bay Street, Suite 900, Toronto, Ontario.

The purpose of the hearing was to consider what penalty would be most appropriate in relation to findings of professional misconduct made by the Panel against Dr. Gregory Miller (the “Member”) in a decision dated August 27, 2019. The Panel made findings of professional misconduct pursuant to clause 51(1)(c) of the Health Professional Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, more particularly contrary to paragraphs 1.14 and 1.39 of Ontario Regulation 119/94, in relation to his care of Ms. X.

The five members of the Discipline Panel referred to above were in attendance, as well as Dr. Gregory Miller; Ms. Julia Martin, counsel for the College, accompanied by Ms. Maureen Boon, Registrar; and Ms. Julie Maciura, independent legal counsel to the Discipline Panel.

The hearing was called to order at approximately 9:50 a.m. on December 4, 2019. The Chair introduced the Panel and the other people present in the room.

The Chair reminded the participants that a publication ban with respect to the identity of Ms. X remained in force.

Evidence of College on Penalty

College counsel tendered a brief of documents that included the Member’s prior history with the College and it was marked as Exhibit 21.

That prior history included three Complaints Committee decisions, one Inquiries, Complaints and Reports Committee (“ICRC”) decision and two Discipline Committee decisions. The Complaints Committee and ICRC decisions relate to communication issues with patients (as well as one clinical issue regarding prescribing for hyperopia and binocular vision problems) and College counsel suggested that these matters show that the Member has clearly been warned about his communication with patients in the past. Despite prior warnings, he engaged in similar behaviour in this case, with respect to his comments to Ms. X about vision therapy.

The Discipline Committee decisions were from 1979 and 2003. College counsel suggested that the Panel should not put weight on the 1979 decision since it was so old and the only penalty ordered was a reprimand. The 2003 decision related to a breach of an undertaking by the Member that he had given to the College. The Panel in that case was concerned about the apparent lack of respect exhibited by the Member for the profession and its self-governing policies. The Member received a recorded reprimand and was ordered to pay costs to the College of $1,000.

Additionally, there was a more recent Discipline Committee decision tendered as part of the documents brief but the Member is appealing that decision and the penalty was stayed pending the appeal; as such, College counsel submitted that the Panel should not put weight on that decision since it is under appeal.

Evidence of the Member on Penalty

The Member tendered a letter from the College with respect to his Quality Assurance obligations and asked that it be admitted into evidence. After hearing submissions from College counsel and advice from independent legal counsel and after having considered the very clear confidentiality provisions in the Health Professions Procedural Code, particularly subsection 83.1(6) which says

that “Quality assurance information is not admissible in evidence in a proceeding”, the Panel ruled that it could not accept the letter into evidence.

The Member also tendered a copy of his curriculum vitae as evidence and it was marked as Exhibit 22. He was then sworn in as a witness so that he could give evidence about his experience and credentials, in particular with respect to his role in assessing insurance claimants. Dr. Miller gave evidence with regard to what he sees as the distinction between oculo-visual assessments in the Optometric Practice Reference as compared to assessments done pursuant to section 44 of the Statutory Accident Benefits Schedule under the Insurance Act. Dr. Miller stressed that in his view they are very different things and it is impossible to compare them.

The Member provided what he viewed as context with respect to his prior history and said that he had not really made mistakes in those cases but that the problems were essentially a lack of communication by the patients.

College counsel cross-examined the Member. He agreed that he no longer worked as an assessor for the Optometry Examining Board of Canada and has not been able to do that as a result of the current disciplinary processes against him. He did not agree with the suggestion made by College counsel that the reason he is no longer able to be an assessor is that it is important that people assessing potential new members of the profession have a strong reputation that is not tarnished by professional misconduct.

The Member did agree with College counsel that one of the issues about which he was repeatedly warned in his previous College cases was communication with patients.

Submissions of the College on Penalty

College proposed the following Order in this case:

That Dr. Miller is required to appear before the Discipline Committee to receive a reprimand.
That Dr. Miller pay costs to the College in the amount of $ 50,000 payable to the College of Optometrists of Ontario within 30 days of the date of the decision of the Discipline Committee.
That the Registrar be directed to suspend Dr. Miller’s certificate of registration for a period of two months.
That the Registrar be directed to impose the following specified terms, conditions and limitations on Dr. Miller’s certificate of registration:

a. That Dr. Miller be required to complete two and a half days of practice coaching with a practice coach who is chosen by the Registrar at his expense within two months of the date of this order as follows:

i. One full day (minimum 6 hours) working with the coach on the following areas of practice:

I. Recordkeeping; and

II. Posterior segment examination.

ii. One full day (minimum 6 hours) discussing the issues in clause i, above, with respect to the services he provided to Ms. X.

iii. One half day (minimum 3 hours) of follow-up coaching within six months of the coaching referred to in clauses i and ii., to assess Dr. Miller’s understanding and implementation of the issues raised in the first two days of coaching.

b. That Dr. Miller be required to complete 6 hours of coaching with a communications coach chosen by the Registrar at his own expense within two months of the date of this order to work on the proper communication with patients including communications regarding treatment options and appropriate communications with patients regarding professional colleagues.

c. That Dr. Miller be required to undergo a practice inspection of 20 files which were completed within 9 months of the completion of the coaching, including 3 insurance assessments, if any have been completed in this time. The inspection will be at Dr. Miller’s expense by a College-appointed inspector and shall be restricted to the issues for which he received coaching. Any deficiencies found in the practice inspection may result in a report to the Inquiries, Complaints and Reports Committee (“ICRC”).

d. At the conclusion of the coaching periods referred to above, the practice coaches shall send a report to the Registrar indicating whether, in the opinion of the coach, Dr. Miller understands the issues covered by the coaching and whether he has implemented improvements to his practice, as recommended by the coach. In the event of a report from the practice coach that is not acceptable to the Registrar, Dr. Miller shall repeat the practice coaching period once more under the same conditions as above within twelve months of the date of this order. If the repeat coaching results in reports from the coaches that are unacceptable, the Registrar may report the matter to the ICRC.

College counsel submitted that when the Panel considers the appropriate penalty, it needs to consider the different audiences for the penalty: the public, profession, and the Member himself.

The purpose of penalty is to protect the public; to deter the profession from this type of behaviour in the future; to deter the Member specifically from future similar conduct and finally to rehabilitate the Member. College counsel submitted that specific deterrence is very important in

this case given the evidence in Exhibit 21, as the Member has on four previous occasions been warned or participated in training regarding the manner in which he communicates with patients: that he must be respectful, professional and that he should have proper comportment with his patients and yet that is still not happening.

Similarly College counsel submitted that there are concerns about the Member’s clinical skills reflected in his two Discipline cases and also in this case, and as such, the penalty needs to address, particularly for the Member, the fact that he does not understand his need to comply with obligations as an optometrist.

College counsel submitted that the Panel needs to take into account aggravating and mitigating factors in this case and in her submissions an important aggravating factor is Dr. Miller’s background, which consists of a whole volume of cases involving his conduct from 2006, 2008, 2009, 2012 and 2015.

College counsel submitted that the way the issues have been dealt with previously is not working, as the Member does not appear to be receiving the message he is being given because he is not changing his ways.

College counsel submitted that the Panel could see from her cross-examination of the Member that his refusal to answer questions and his continued position that someone he assesses (under the Statutory Accident Benefits scheme) and someone who is a patient, are totally different and that he does not have to identify conditions of the eye in the former but instead can treat those two people differently.

College counsel suggested that the Member does not listen and that through his history, and in the current case, he shows arrogance towards the authority of the College. He believes he knew better with respect to the issues in this case and that it is the College that is always getting it wrong. In her submission, that hasn’t changed at all through the years.

In College counsel’s submission, without respect for the regulator, professional regulation will fall apart. Members are required to comply even if they don’t like the rules or don’t agree with them, and if they don’t comply they must be sanctioned and rehabilitated and if they can’t be rehabilitated then they can’t be members.

Counsel suggested that another aggravating factor is the nature of the conduct; failure to identify a dangerous condition of the eye is very significant. That should be basic for any optometrist; when someone with the condition that Ms. X had is in an optometrist’s chair they should see it and document it.

The conduct is serious. The communication part and the comment the Member made about vision therapy are rendered more serious given his background which consists of a long history of problematic communication issues with patients.

College counsel suggested that a mitigating factor might be the fact that the conduct only related to one client.

With respect to the costs request, College counsel entered a Table of Partial Costs Incurred that was entered as Exhibit 23. She submitted that the hearing costs outlined in the estimate are essentially up to date but they do not take into account the hearing itself and so once those

additional costs are factored in, the investigation and hearing in the matter would be over

$100,000. The College is not seeking a full recovery but is asking for less than 50% from the Member.

College counsel presented a few prior cases to show what penalties had been ordered in the past for similar conduct, pointing out that some of the cases involved Agreed Statements of Facts and Joint Submissions on Penalty, which means that the College would have agreed to a lesser penalty in those cases because it was able to forego the expense and uncertainty of a contested hearing. While not binding, counsel submitted that the Panel could refer to the cases to see what range of penalties has been given in the past for this type of conduct.

Ontario (College of Optometrists of Ontario) v Angelone, 2015, ONCA 3 dealt with a standard of practice at issue involving treatment of children and also an allegation of incompetence. The order included a reprimand, costs, continuing education and a condition that he not treat children under eight years of age.

Ontario (College of Optometrists of Ontario) v Tepperman, 2019 ONCO 2 was also a standards and record keeping case involving one patient. That member received a reprimand and was required to participate in practice coaching and costs of $7,500.

Neither of those cases involved an unprofessional conduct allegation and neither of those two optometrists had the background that the Member does.

Ontario College of Optometrists v Charron (2013, unreported) was a College case regarding a finding of unprofessional conduct for rude remarks made by the member (including posting a sign in his clinic saying “refugees stay for free; you and me pay the fee”). The matter proceeded by way of an ASF and JSP and the penalty ordered was a reprimand and conditions imposed on his certificate; he was also required to take the ProBE course and ordered to pay costs of $15,000.

Ontario (College of Physicians and Surgeons of Ontario) v Ponnampalam, 1993 ONCPSD 28 was a CPSO case; the similarity with this case is that the physician had chronic communication issues. The Panel ordered a reprimand and a fine of $5,000.

Counsel submitted that the fact that the panels in these cases did not order suspensions should not be of concern to the Panel, as the facts of this case, and in particular the Member’s extensive prior history, mean that it warrants a suspension.

Submissions of Member on Penalty

The Member submitted that the Panel should not order any penalty at all and that he found the process very frustrating because it was like the parties were “speaking two different languages”. He reiterated his position that assessments under the Statutory Accidents Benefits scheme are unrelated to his optometry practice. As such, he submitted that coaching would not assist because the person would be coaching him on the wrong thing. He suggested that the College’s proposed penalty was severe and misguided and would not solve any problems. He submitted that all the penalty will accomplish is removing him from the insurance industry and will cause difficulties for future optometrists who work in the insurance industry.

The Member submitted an alternative proposal in terms of penalty and that would be to establish a working relationship with the College to help it understand the meaning of a third party in-person medical evaluation and report. The Member submitted that his eight years of experience in this work would allow him to help the College develop a guide or policy as other professions have, such as the College of Physicians and Surgeons of Ontario, with respect to third party assessments.

Reply Submissions of the College

College counsel submitted that the Member has missed the point and wants to bring the focus back to saying that people being assessed are not his patients, despite the Panel having already found that the Member owed Ms. X a duty to both observe and record her serious eye condition. The fact that this was done pursuant to an independent medical assessment has already been taken into account by the Panel and in that respect, there were no findings on certain allegations, i.e., the Panel found that the Member was not required to refer Ms. X to another professional because he was aware that she was already seeing an ophthalmologist.

College counsel submitted that the Member missed a serious eye condition and/or he did not properly record it in his chart. He was acting as an optometrist at the time and he did not do his job properly. The outcome could have been dire for this patient had she not been in the care of others.

In College counsel’s submission, the Member’s suggestion that the College needs a guide to third party examinations and that he will enlighten the College in this regard is an incredible display of arrogance on his part.

College counsel submitted that the Member’s claim that optometrists would no longer be involved in the Statutory Accident Benefits Schedule scheme is simply not true. Optometrists can be involved but they have to act with integrity and honesty and in accordance with the standards of the profession while doing so.

The College’s proposed penalty addresses the findings made by the Panel. In order for the Member to truly be affected by a penalty it needs to include a suspension this time.

College counsel submitted that rehabilitation in this case will be difficult because the Member has demonstrated zero insight.

Decision on Penalty and Costs

After considering its findings, the evidence before it, and the submissions of the parties, the Panel made the following order as to Penalty and Costs:

Dr. Miller is required to appear before the Discipline Committee to receive a reprimand.
Dr. Miller is required to pay costs to the College in the amount of $ 50,000 payable to the College of Optometrists of Ontario within 30 days of the date of the decision of the Discipline Panel.
The Registrar is directed to suspend Dr. Miller’s certificate of registration for a period of two months, to commence on a date acceptable to the Registrar.
The Registrar is directed to impose the following specified terms, conditions and limitations on Dr. Miller’s certificate of registration:

a. Dr. Miller is required to complete two and a half days of practice coaching with a practice coach who is chosen by the Registrar at his expense within two months of the date of this order as follows:

i. One full day (minimum 6 hours) working with the coach on the following areas of practice:

I. Recordkeeping; and

II. Posterior segment examination.

ii. One full day (minimum 6 hours) discussing the issues in clause i, above, with respect to the services he provided to Ms. X.

b. Dr. Miller is required to complete 6 hours of coaching with a communications coach chosen by the Registrar at his own expense within two months of the date of this order to work on the proper communication with patients including communications regarding treatment options and appropriate communications with patients regarding professional colleagues.

c. Dr. Miller is required to undergo a practice inspection of 20 files which were completed within 9 months of the completion of the coaching, including 3 insurance assessments, if any have been completed in this time. The inspection will be at Dr. Miller’s expense by a College-appointed inspector and shall be restricted to the issues for which he received coaching. Any deficiencies found in the practice inspection may result in a report to the Inquiries, Complaints and Reports Committee (“ICRC”).

event of a report from the practice coach that is not acceptable to the Registrar, the Registrar may report the matter to the ICRC, and

e. Dr. Miller must provide to the Registrar proof of having registered for the ProBE Ethics and Boundaries Program within six months of the date of the Panel’s order and provide proof to the Registrar of having attained an "unconditional pass", within one year from the date of the panel’s order.

Reason for Decision on Penalty

The Panel believed that the Penalty Submissions by the College fulfilled the various principles of sanction.

In considering the seriousness of this case, the Panel determined that the Penalty Submission was generally fair and reasonable.

Upon reviewing the College’s Penalty Submission against examples of disciplinary penalties imposed in other cases, the Panel concluded that the Submission on Penalty was within the range of penalties assessed in past cases dealing with similar seriousness of conduct, taking into account both the aggravating and mitigating factors.

The Panel considered the mitigating factors. Only one patient was affected by the current situation and the events (particularly the unprofessional comments) were not the most serious type of conduct.

The Panel also considered the aggravating factors. The Member failed to identify swelling of the optic nerve in Ms. X. He either did not test, or he tested incompetently or did not record his findings. In any event, the result could have endangered the health of Ms. X.

The Member has been involved in a very lengthy pattern of complaints and discipline cases. These suggest that previous approaches have been insufficient to meet the principle of rehabilitation and specific deterrence. Further, the panel accepts the submissions of College counsel that the Member’s pattern of behaviour demonstrates arrogance towards the authority of the College. He believes that he knows better than the College. The findings about unprofessional comments are rendered more important by his long history of complaints and discipline.

Further, the Panel considered the four factors put forward by College Counsel on Penalty and the particular circumstances of this situation. Rehabilitation of the member is addressed through the courses he must take, in which he must achieve an unconditional pass. Public protection is addressed through the combination of the suspension, coaching and practice inspection. Deterrence of both the specific member and the profession at large will be addressed by a combination of all of these elements of the penalty plus an additional reprimand and the costs. However, the Panel felt that given the Member’s lengthy non-compliance, complaint and

discipline history, he needed a professional ethics course by which he could demonstrate that he understood that he must comply with the governance requirements of the College.

The Panel felt that it was appropriate to order the Member to pay $50,000 in costs, which represents only a portion of the costs expended by the College in the investigation, prosecution and hearing of this matter. A costs order is intended not to punish the Member, but to allocate fairly the costs of the proceeding, which would otherwise be borne by his peers through their College dues.

The Member was not prepared to receive his reprimand at the conclusion of the hearing and so that will have to be scheduled after the conclusion of any appeal or expiry of the appeal period.

Dated this 6th day of January 2020, at Toronto_________, Ontario.

(Signed)

Ms. Ellen Pekilis, Chair

On behalf of

Dr. Jenna Astorino

Mr. Bashar Kassir

Dr. Kamy Morcos

Dr. Christopher Nicol