Sinopoli v. Walling, 2009 HRTO 50

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Sinopoli by his Litigation Guardian

Vanina Sinopoli

Complainant

-and-

Ontario Human Rights Commission

-and-

Marvlyn Walling

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: January 16, 2009

Citation: 2009 HRTO 50

Indexed As: Sinopoli v. Walling

APPEARANCES BY

Joseph Sinopoli by his Litigation Guardian ) On his own behalf

Vanina Sinopoli, Complainant )

Ontario Human Rights Commission ) Brian Smith, Counsel

Dr. Marvlyn Walling, Respondent ) Anne E. Posno, Counsel

INTRODUCTION

1This case is about whether the respondent, Dr. Marvlyn Walling, a physician licensed to practice family medicine in Ontario, discriminated against the complainant, Joseph Sinopoli, on the basis of his disabilities contrary to the Human Rights Code, R.S.O. 1990, c. H. 19 as amended (the “Code”), when she refused to accept him as a new patient.

BACKGROUND

2Mr. Sinopoli incurred a severe brain injury approximately 20 years ago as the result of a motor vehicle accident. He requires 24 hour personal support and is unable to walk, talk or eat. The complainant lives with his mother, Vanina Sinopoli, who is responsible for arranging all his care.

3In August 2003 Dr. Walling opened a practice as an associate physician at the Creditview Medical Clinic (the “Clinic”), a partnership founded by Doctors Sheppard and Clarkson. She has a roster of about 1000 patients, many of whom have significant disabilities and complex medical histories.

4In 2004 Mrs. Sinopoli was seeking a new family doctor for both herself and the complainant. Dr. Walling was accepting new patients into her practice at that time. Dr. Walling accepted Mrs. Sinopoli as a patient. She indicates that she did not accept the complainant.

5The Ontario Human Rights Commission (the “Commission”) and the complainant maintain Dr. Walling’s refusal to accept the complainant as a patient amounted to discrimination in the provision of services on the basis of disability contrary to sections 1 and 9 of the Code. Dr. Walling refutes this allegation and submits her decision not to accept the complainant as a new patient was entirely unrelated to his disability. Rather, the complainant was not accepted as a new patient because she does not provide medical services to her patients in the form of house calls and Mrs. Sinopoli expected house calls for the complainant.

THE EVIDENCE

Nature of Respondent’s Services

6The Clinic comprises six physicians two of whom did make house calls for their patients. This service was limited to long-standing or palliative care patients and was not expected to form part of the cross-coverage arrangements among the six physicians.

7I am satisfied the evidence established Dr. Walling does not make house calls for any patient as part of the medical care she provides. Dr. Walling testified one of the reasons she does not make house calls is that, as a young woman, she feels particularly vulnerable and fears for her security and safety when attending on patients in their homes. The only exception occurred when a VON nurse pleaded for her to attend to a patient who had just been discharged home after a lengthy period of hospitalisation. Dr. Walling made the house call on that single occasion but in the company of the Clinic’s office manager.

8I am also satisfied, based on Dr. Walling’s uncontradicted evidence, that Dr. Walling, with one exception, accepted every potential patient that sought her service. The exception related to an individual who had no disabilities and who was already a patient at the Clinic under the care of one of Dr. Walling’s colleagues.

COMPLAINANT’S EXPERIENCE OF HOUSE CALL SERVICES

9Both the complainant and his mother were previously patients of Dr. Grbac. Dr. Grbac provided regular house call services to the complainant for the first two years of their relationship, however, I am satisfied based on both Mrs. Sinopoli’s evidence and Dr. Grbac’s clinical notes those services ended in 1993. The evidence is equally clear the complainant never attended at Dr. Grbac’s office for medical services. Between 1993 and 2004, with two exceptions, Dr. Grbac provided medical services to the complainant over the phone and by writing prescriptions. While not an ideal arrangement it appears to have been satisfactory to Mrs. Sinopoli.

NEW PATIENT INTERVIEW MARCH 2, 2004

10Mrs. Sinopoli contacted the Clinic and was given an appointment to meet with Dr. Walling for a new patient interview on March 2, 2004. She may have been aware at the time she approached the Clinic that one of the physicians in the Clinic, Dr. Clarkson, provided house calls because he was the family physician for her friend whom, she testified, had a son “like Joseph” and that he was “very good to the son”.

11There was some dispute whether Mrs. Sinopli or another person made inquiries of Clinic staff concerning house calls for a bedridden son, in advance of arranging her interview but resolving that dispute is not necessary to decide the issues before me.

12The Clinic’s new patient process involved first, the completion of several information gathering forms. Then the physician would interview and obtain additional social and medical history and other information. The physician would also describe procedures for cross-coverage and other matters. Finally, a new patient declaration would be signed by both the patient and the physician. Where the physician considered it appropriate, a request to transfer medical records would be made to former medical service providers.

13Dr. Walling and Mrs. Sinopoli had very different versions of their discussion during the March 2, 2004 meeting. Mrs. Sinopoli testified she told Dr. Walling that she was looking for a family doctor for her son who had been in a serious car accident, had a brain injury, and was unable to walk, talk or eat, but was generally healthy. She emphasised she asked Dr. Walling to come to their home once in order to see the complainant in his home environment and testified that Dr. Walling replied that she did not make house calls. Although she did not remember Dr. Walling saying so exactly, Mrs. Sinopoli believed that both she and Joseph were accepted as new patients.

14Dr. Walling agrees Mrs. Sinopoli advised her she was also looking for a family doctor for her son during the meeting. Dr. Walling testified she told Mrs. Sinopoli that, since her son was an adult, he would have to come to the Clinic to see her. According to Dr. Walling, at that point Mrs. Sinopoli explained her son was “bedridden”, that his former doctor, Dr. Grbac, made house calls and that she required his doctor to make house calls as Dr. Grbac had done in the past. Dr. Walling testified she told Mrs. Sinopoli she did not perform house calls, it was not a service she provided to her patients and she would not be able to accept the complainant as a patient.

15Of the two versions of the meeting on March 2, 2004 I prefer Dr. Walling’s. Mrs. Sinopoli failed to make any reference to Dr. Grbac’s alleged practice of making house calls in her examination in chief, only admitting this had been discussed when pressed during cross-examination. Further, she adamantly denied using the term “bedridden”. However, she agreed on cross-examination that her objective in this conversation was to have Dr. Walling accept the complainant as a patient without having to bring him to the Clinic. Moreover, the characterisation of the request as a single home visit for the purpose of assessing the complainant in his home environment is not recorded in Mrs. Sinopoli’s Commission interview or articulated in the complaint. The complaint notes only

I asked her [Dr. Walling] if she made house calls and she said that she did not. (emphasis mine)

EVENTS FOLLOWING THE MARCH 2004 MEETING

16In early June 2004, the complainant’s pharmacist called Mrs. Sinopoli asking if the complainant had a family doctor who could complete a renewal form. Mrs. Sinopoli identified Dr. Walling as the complainant’s doctor. The pharmacist called back and advised that Dr. Walling was not the complainant’s physician. Dr. Walling recalls telling a staff member to tell the pharmacist that she could not complete the form because the complainant was not her patient.

17Mrs. Sinopoli called Dr. Walling on June 15, 2004, and left a message asking her to come to the house as a courtesy to fill out the required renewal form. Dr. Walling testified that she instructed the Clinic’s office manager to return the call and advise Mrs. Sinopoli the complainant was not her patient and that she did not perform house calls. Mrs. Sinopoli acknowledged receiving this call.

JUNE 22, 2004 MEETING

18On June 22, 2004, the complainant, Mrs. Sinopoli and Ms. Miller, the complainant’s long-standing personal care worker, attended at the Clinic. Mrs. Sinopoli had made an appointment with Dr. Walling to renew her own prescriptions and to have Dr. Walling meet the complainant. On arrival at the Clinic, all three were directed into an examining room to wait for Dr. Walling.

19Dr. Walling was unable to identify the staff person who made the appointment for the complainant. She testified that she only became aware of his attendance when she was ready to treat Mrs. Sinopoli as her next patient. She entered the examination room feeling very uncomfortable and could not understand why the complainant had been given an appointment particularly when Mrs. Sinopoli had advised her that he was bedridden.

20Other than agreeing that Mrs. Sinopoli’s medical needs were addressed at the start of the visit, the evidence with respect to the June 22nd meeting was hotly disputed.

21Mrs. Sinopoli testified that when Dr. Walling entered the room, she walked right past the complainant and did not say hello to him. She considered this behaviour rude. Dr. Walling testified she had greeted everyone when she entered the examining room. On cross-examination, Ms. Miller accepted that Dr. Walling probably did greet everyone in the room, including the complainant.

22Mrs. Sinopoli testified Dr. Walling started the discussion by saying that she could not accept the complainant as a patient because she did not perform house calls. Dr. Walling maintains she started the discussion by saying Clinic staff had already told Mrs. Sinopoli several times that she would not accept the complainant as a patient because she did not provide house calls.

23Mrs. Sinopoli testified she told Dr. Walling house calls were not required and Dr. Walling’s response was to the effect of, “What are you going to do, bring him here every time he needs to see me?” According to Mrs. Sinopoli, when she indicated she was prepared to do so Dr. Walling just repeated she would not take the complainant as a patient. Mrs. Sinopoli acknowledged she got upset at this point and raised her voice. She remembers saying “What am I supposed to do, take him to Emergency all the time?” and that Dr. Walling shrugged her shoulders in response. She also recalled Dr. Walling saying “I’m sorry”, to which she responded “No, you’re not”.

24Dr. Walling’s testimony was that she told Mrs. Sinopoli she was surprised the complainant had been brought to the Clinic. At this Mrs. Sinopoli got very angry and started shouting and yelling. Dr. Walling became frightened and felt she needed to leave the room. When she opened the door her colleague, Dr. Sheppard, was standing in front of her. They watched while all three left the Clinic. Mrs. Sinopoli continued to yell while she was leaving.

25Ms. Miller testified Mrs. Sinopoli clearly wanted Dr. Walling to take the complainant as a new patient and that Dr. Walling refused because she believed house calls were involved. Mrs. Sinopoli did offer to bring the complainant to the Clinic for appointments and told Dr. Walling house calls were rarely needed. In Ms. Miller’s view, the complainant’s family doctor should be expected to make house calls when they were needed. She characterized Mrs. Sinopoli’s outburst at the end of the meeting as “dramatic”.

26Dr. Sheppard’s note of this incident, made November 22, 2004, reads in part:

I was working in my office on 22/6/04 when I became aware of an angry outburst from the next office.

I was concerned for my colleague Dr. Marvlyn Walling trying to deal with this irate patient.

I walked to the office of the office manager’s office and informed her I was going to intervene.

I returned down the hall and just prior to arriving at the office the door burst open and the irate female patient emerged with an adult male in a wheelchair. The verbal barrage continued as she and her son exited the office.

Dr. Walling was obviously shaken by this encounter but she had remained composed and had not raised her voice in response,

I have not witnessed such a virulent attack on a colleague in thirty-two years of practice.

I encouraged Dr. Walling to write this female patient a termination letter immediately.

27On June 23, 2004, Mrs. Sinopoli called Dr. Clarkson in the hope that he would take her and the complainant as patients. She testified she wanted Dr. Clarkson as a family physician because he was the family physician for her friend who had a son like Joseph and that he was very good to the son. Under cross-examination she acknowledged that at the time of calling Dr. Clarkson she knew he provided house calls to her friend’s son. Dr. Clarkson charted the following note of his conversation:

I returned call Mrs. Sinopoli placed to me. I informed given the complete breech with Dr. Walling and nature of cross coverage, her next MD should come from a group other than us here. Mrs. Sinopoli continues very hostile to Dr. Walling and plans complaint. That emphasizes break down in trust. Mrs. S gives a different version of her understanding of original contract for care with Dr. Walling than does this office staff. I did not debate merits of her case or even imply that I knew nature of contract for Dr. W. point of view.

The issue is not will Dr. Walling continue as MD?; Mrs. Sinopoli does not wish that, but whether there is an extended duty of care from Dr. W’s associates to now take this patient + family on? I say “no” because

i. cross-coverage issues

ii. acceptance of a patient by an MD in this clinic does not place a duty of care on the other MD’s – except for cross-coverage. Beyond that a Dr. – patient relationship is to be mutually accepted.

28A few days after talking to Dr. Clarkson, Mrs. Sinopoli received a registered letter from Dr. Walling terminating the doctor-patient relationship. The letter reads in part:

This letter is to confirm our conversation during your office visit today. I am not able to take your son, Joseph as a patient. Your reaction to this situation was totally uncalled for and excessive and will not be tolerated in this office. You must establish yourself with another Family Physician.

I will take care of your emergency needs until July 22nd, 2004.

29Mrs. Sinopoli testified she was not surprised when she received this letter given her conversation with Dr. Clarkson and she had decided not to use Dr. Walling anymore in any event.

SUBSEQUENT EVENTS

30Since June 22, 2004, the complainant has been a patient of Dr. Racanelli and, subsequently, Dr. Wong. Dr. Racanelli saw the complainant four times and one of those visits was as a house call. Dr. Wong has seen the complainant at his office on two occasions. The complainant has received eight house calls from MedVisit, a service that arranges for doctors to make house calls on demand. Mrs. Sinopoli testified that Dr. Wong does not know that she uses MedVisit. She uses MedVisit when the complainant has an infection or she feels that he should be seen in his own home.

31Since June 22, 2004, the complainant has also made nine visits to the office of Dr. Lang, a specialist, and has been seen at hospital on five occasions.

EVIDENCE OF DR. MCCOLL

32The Commission called an expert witness, Dr. Mary Ann McColl, to provide background and contextual information concerning the difficulties that adult Ontarians with disabilities generally experience in attempting to access primary care in the province. There was no dispute as to Dr. McColl’s expertise or the relevance of her opinion evidence.

33Dr. McColl testified that volume-driven compensation systems, such as fee-for-service or capitation models, generally result in family medicine practices that make fewer accommodations and provide a diminished standard of care than systems where physicians are paid a salary. Moreover, volume-driven compensation systems, combined with an excess of demand for family physicians, lead to the practice of “cherry picking”. Where, driven by a system which compensates on the basis of the volume of services rendered, financial incentives exist to screen out patients who are likely to be time-consuming and therefore an economic liability. Family practitioners interview prospective patients for the purpose of eliminating those whose needs are likely to require more than the eight to ten minutes allocated per appointment in a typical efficient practice. Dr. McColl identified persons with complex disabilities as among the persons who might be “selected out” in this manner.

34In Dr. McColl’s opinion the new patient advance interview method heightens the risk of unequal treatment and discrimination. In her view, the use of advance interviews can be a barrier to accessing primary health care and should be discouraged. In her view taking a “first-come-first-served” approach and accepting all newcomers removes the risks of unequal treatment and discrimination that arise with the advance interview model.

ANALYSIS

35There is no dispute that the provision of medical care by Dr. Walling is a “service” as defined in s. 1 of the Code or that the protections offered by s. 1 of the Code apply to existing patients of Dr. Walling as well as persons, like the complainant, seeking to become Dr. Walling’s patients.

36The Commission does not argue that the refusal to perform house calls is an improper limitation on the service Dr. Walling provides as a family physician. Rather, it argues:

(1) that Dr. Walling improperly considered a prohibited ground of discrimination, disability, when making her decision to not accept the complainant as a patient;

(2) that Dr. Walling’s decision not to employ a “first-come-first-served” approach with potential patients, and instead to follow a process that gathers medical and other personal information before advising whether the potential patient has been accepted as a patient, is itself discriminatory regardless of how that medical and other personal information is ultimately used; and,

(3) that at the June 22nd meeting it was incumbent on Dr. Walling to canvass alternatives for the complainant in that, for example, Dr. Walling should have indicated to Mrs. Sinopoli there was a possibility the complainant might be accepted as a patient, subject to a further discussion of his needs or that she would accept the complainant as a patient subject to a condition that he would be referred elsewhere on any occasions when house calls were required and that the failure to take such steps gives rise to an inference that Dr. Walling did not want to accept the complainant as a patient for reasons relating to his disabilities.

PROHIBITED GROUNDS

37When in 2004, Mrs. Sinopoli faced the need to find a new physician it made abundant sense to attempt to find someone who provided house calls. She was used to the service as it had been provided by her former physician Dr. Grbac. She has availed herself of the service with health care providers up to the present time. Getting the complainant to office visits was not a simple procedure and required two adults to manage the transportation of the complainant and his wheelchair.

38In the circumstances, I am satisfied that Mrs. Sinopoli wanted Dr. Walling to perform house calls and, indeed, used all the arguments available to her such as the purported practice of Dr. Grbac and the overstated inability of the complainant to move in an attempt to persuade Dr. Walling to provide the desired service.

39As I have indicated, I am persuaded that Dr. Walling does not make house calls for any patient as part of the medical services she provides. In my view, Dr. Walling’s decision not to provide medical care to the complainant was in response to Mrs. Sinopoli’s expectation that she provide house calls. I find that the complainant’s disability was not a factor in this decision.

FIRST COME-FIRST SERVED

40The Commission submits that Dr. Walling’s failure to use a “first-come-first-served” approach with potential patients and to instead use an interview process for admitting new patients is contrary to the principles of the Code. It argues that an interview process that gathers medical and other personal information before advising whether the potential patient has been accepted is itself discriminatory, regardless of how that medical and personal information may later come to be used.

41The Commission was unable to point to any cases that considered whether physicians or other healthcare providers breach human rights legislation by asking questions of potential patients that directly or indirectly classify them on the basis of prohibited grounds.

42The Commission argued that, at least in the employment context, sections 5(1), 23(2) and 23 (3) of the Code when read together establish that employers cannot ask questions of job applicants that would allow the applicants to be directly or indirectly classified by prohibited grounds of discrimination. It cited Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.) where the Tribunal held that the Ontario Provincial Police had violated the complainant’s rights simply by asking questions during a job interview about her age, marital status and family status, notwithstanding having agreed with the respondent that its decision not to hire the complainant was entirely non-discriminatory.

43The Commission acknowledged that the principles concerning improper inquiries are rooted in s. 23(2) of the Code and therefore are arguably limited to the social area of employment. However, it submits that this limitation was implicitly rejected by the Tribunal in the housing case of Albena St. Hill v. VRM Investments Ltd., 2004 HRTO 1 (“St.Hill”).

44In St. Hill the complainant was seeking rental accommodation for herself and her eight-year old daughter. The respondent asked her to fill out a tenancy application that, among other things, asked for the names and ages of all intended occupants. She did not list her daughter on the form, based on her belief that past landlords rejected her applications upon learning that she was a single mother of a young child. The respondent rented her the apartment, and then cancelled the arrangement after subsequently learning she had a young daughter.

45The Tribunal found that the landlord refused to rent the apartment to the complainant because she had a young daughter and that the complainant’s right to equal treatment with respect to occupancy of accommodation without discrimination because of family was infringed. It went on to find that “in this case the mere asking of the question as to the age of the prospective co-occupant was prima facie an act of discrimination under s. 2(1) of the Code.” (at p. 7.).

46The Commission argues that, given St. Hill, the prohibition on asking questions about Code grounds can apply to a social area other than employment. It argues that there is no principled reason why it should not extend to those seeking to receive a service, particularly, medical service.

47I note, however, that the Tribunal in St. Hill remarked:

I point out that no evidence was called or submissions made by way of denial of the proposition that the simple asking of the question as to the age of the prospective co-occupant is discrimination under s. 2(1). (para. 33).

48More important, from my point of view, is the Tribunal’s comment:

Perhaps, I should add that I can think of situations where the mere asking of the question would not amount to discrimination under section 2(1) of the Code. A landlord might be able to establish that he regularly rented to mothers or fathers or couples with a child and that the application form was one habitually used without in fact leading to discrimination. (para. 32).

49Thus, even if I were to use St. Hill to extend the prohibition on asking questions relating to Code grounds to the provision of services and in particular medical services and if I were to find, which I do not, that the new patient interview process employed by Dr. Walling did indeed include questions that were related to Code grounds, I must still determine if the asking of those questions in fact lead to discrimination. I find that they did not.

50The uncontradicted evidence is that Dr. Walling accepted every potential patient that sought her service with the single exception noted earlier. In these circumstances, I find that the new patient interview process “was one habitually used without in fact leading to discrimination”. Dr. Walling was not prepared to provide house calls to any of her patients. Her decision not to provide medical care to the complainant was in response to Mrs. Sinopoli’s expectation that she provide house calls. The complainant’s disability was not a factor in this decision.

51While there is no doubt that the issue of general access barriers to care faced by disabled persons is a very real concern, Dr. McColl was addressing systemic or policy barriers arising out of the fee-for-service OHIP compensation system and faced by disabled adults generally. However, I am not called upon to address systemic issues relating to access to health care by disabled persons generally.

52This case requires a determination as to whether one family physician, operating in a clinic, violated the Code by not accepting as a new patient one disabled adult person. Dr. McColl opined that while the new patient interview process provides an opportunity for family doctors to screen out and discriminate against adults with disabilities, I would point out that an opportunity to discriminate does not, in fact, constitute discrimination in any particular case.

53Thus, even if I were to find that the new patient process employed by Dr. Walling amounted to a type of advance interview that Dr. McColl discourages, I must still determine if, on the facts, discrimination contrary to the Code occurred. As I have found that disability was not a factor in Dr. Walling’s decision not to accept Joseph as a patient, I am led to conclude that there was no discrimination in these circumstances.

DRAWING AN INFERENCE

54The Commission proposes that I draw an inference that Dr. Walling did not want to accept the complainant as a patient for reasons related to his disabilities because she did not assess the complainant’s needs to determine whether she could take him on as a new patient when he was present during the June 22nd meeting.

55In the particular circumstances of this case, I am not prepared to make such inference. It was Mrs. Sinopoli’s expectation that Dr. Walling make house calls that prompted Dr. Walling to refuse the complainant as a new patient. Home visits were of great convenience to Mrs. Sinopoli. Canvassing the complainant’s needs would have been pointless in light of Mrs. Sinopoli’s expectation that Dr. Walling would make house calls.

56Moreover, in my view, Mrs. Sinopoli’s angry outburst at the June 22nd meeting where she stormed out of Dr. Walling’s office effectively precluded any rational assessment respecting the complainant’s care. The basis of any relationship was at that point undermined beyond repair both from Dr. Walling’s point of view, who issued a letter of termination, and from Mrs. Sinopoli’s point of view who, on the next day, deciding to never again use Dr. Walling, sought the services of Dr. Clarkson.

CONCLUSION

57For these reasons I find that Dr. Walling did not violate the Code. The complaint is dismissed.