College of Audiologists and Speech-Language Pathologists of Ontario v. Katie Zartman, 2013 ONCASPD 1

Date: April 30, 2013

BETWEEN:

COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO

-and-

Panel Members:

Present:

Sandra Singbeil Debra Zelisko Karen Bright Scott Whyte

Ms. Rebecca Durcan Ms. Katie Zartman Mr. Alan Bromstein

Chair, Speech-Language Pathologist Audiologist

Speech-Language Pathologist

Public Representative

Counsel for the College

Not Represented by Counsel

Independent Legal Counsel to the Panel

Hearing Date: March 25, 2013

DECISION AND REASONS

This matter came on for a hearing before a panel of the Discipline Committee ("Panel") on March 25, 2013 at the College of Audiologists and Speech-Language Pathologists of Ontario ("College") at Toronto.

The Allegations

The allegations against Katie Zartman, Speech-Language Pathologist ("Member), as stated in the Notice of Hearing (Exhibit #1) were as follows:

"1. Katie Zartman is a Speech-Language Pathologist registered with the College of Audiologists and Speech-Language Pathologists of Ontario (CASLPO). At all material times, Ms. Zartman was employed as a Speech-Language Pathologist at the Hamilton Health Sciences Centre (HHCS) in Hamilton, Ontario.

In respect of her patients R.B. and F.D., Ms. Zartman:

a. failed to provide comprehensive clinical non-instrumental swallowing assessments, substituting instead a swallow screening protocol;

b. based management and intervention decisions on inadequate assessments;

c. failed to obtain, or document obtaining, informed consent for swallowing screenings, assessments and interventions;

d. failed to document, or failed to explain her findings as a result of the swallowing assessment to R.B.; nor did she explain them to his family;

e. failed to monitor and oversee the outcome in regard to patient R.B. as the result of her management recommendations;

f. failed to document her involvement with R.B. involving all steps of swallowing intervention;

g. put R.B. at risk because of her failure to comply with the above-noted standards of practice of the profession.

Ms. Zartman thereby engaged in professional misconduct within the meaning of paragraph 2 (failing to maintain a standard of practice of the profession), 19 (failing to keep records as required) and paragraph 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of O. Reg. 749/93 under the Audiology and Speech-Language Pathology Act, 1991."

Member's Plea

The Member admitted all of the allegations. The Panel conducted a plea inquiry and was satisfied that the Member's admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts (Exhibit #2) which provided as follows:

In respect of her patients R.B. and F.D., Ms. Zartman:

a. failed to provide comprehensive clinical non-instrumental swallowing assessments, substituting instead a swallow screening protocol;

b. based management and intervention decisions on inadequate assessments;

c. failed to obtain, or document obtaining, informed consent for swallowing screenings, assessments and interventions;

d. failed to document, or failed to explain her findings as a result of the swallowing assessment to R.B.; nor did she explain them to his family;

e. failed to monitor and oversee the outcome in regard to patient R.B. as the result of her management recommendations;

f. failed to document her involvement with R.B. involving all steps of swallowing intervention;

g. put R.B. at risk because of her failure to comply with the above-noted standards of practice of the profession.

Ms. Zartman thereby engaged in professional misconduct within the meaning of paragraph 2 (failing to maintain a standard of practice of the profession), paragraph 19 (failing to keep records as required) and paragraph 37 (engaging in conduct or performing an act, relevant to the practice of the profession, that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of O. Reg. 749/93 under the Audiology and Speech-Language Pathology Act, 1991."

The Panel also received as part of the Agreed Statement of Facts

(i) a copy of an excerpt from the investigator's interview with Sue Bramburger, Chief Speech-Language Pathologist at the Chedoke site of the Hamilton Health Sciences Centre;

(ii) a copy of an excerpt from the Member's response to (among other things) the investigator's interview with Sue Bramburger;

(iii) a copy of the pertinent excerpts of the patient chart in respect of R.B.;

(iv) a copy of the pertinent excerpts of the patient chart in respect of F.D.;

(v) a copy of the expert report of Catriona M. Steele, Ph.D., S-LP(C), dated February 5, 2012; and

(vi) a copy of the Member's response to the expert report of Catriona M. Steele, Ph.D., S-LP(C), dated February 5, 2012.

DECISION

The Panel considered the Agreed Statement of Facts (Exhibit #2) and found the Member to have committed acts of professional misconduct as defined by paragraphs 2 (failing to maintain a standard of practice of the profession), 19 (failing to keep records as required) and paragraph 37 (engaging in conduct or performing an act, relevant to

the practice of the profession, that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional) of section 1 of 0. Reg. 749/93 under the Audiology and Speech-Language Pathology Act, 1991 ("Professional Misconduct Regulation"). In particular, the Panel found finds that the Member, in respect to her patients R.B. and F.D.:

a. failed to provide comprehensive clinical non-instrumental swallowing assessments, substituting instead a swallow screening protocol;

b. based management and intervention decisions on inadequate assessments;

c. failed to obtain, or document obtaining, informed consent for swallowing screenings, assessments and interventions;

d. failed to document, or failed to explain her findings as a result of the swallowing assessment to R.B. and failed to explain them to his family;

e. failed to monitor and oversee the outcome in regard to patient R.B. as the result of her management recommendations;

f. failed to document her involvement with RIB. involving all steps of swallowing intervention;

g. put R.B. at risk because of her failure to comply with the above-noted standards of practice of the profession.

Reasons for Decision

The Panel deliberated and after due consideration of all of the facts and the Member's admission to the allegations, unanimously decided to accept the Agreed Statement of Facts as presented which substantiated the findings of professional misconduct made by the Panel.

The Panel accepted the expert opinion provided by Catriona M. Steele ("Ms. Steele") who opined that the Member failed to maintain the standards of practice of the profession by not providing appropriate swallowing assessments for Mr. R.B. and Ms. F.D; by the Member providing recommendations for pureed food intake for Mr. R.B. without prior observation of tolerance of this texture in her assessment; and by not monitoring the implementation of management recommendations for that patient.

The Panel also accepted the expert opinion provided by Ms. Steele who stated that the Member failed to keep records as required by failing to document that informed consent was obtained for either Mr. R.B. or Ms. F.D. In this regard, the Panel accepted the expert opinion of Ms. Steele and found that there was very limited chart documentation of the Member's involvement with Mr. R.B. prior to the videofluoroscopy and that the Member's documentation practices failed to meet the standards of care expected of a member engaged in the practice of speech-language pathology.

With regard to paragraph 37 of section 1 of the College's Professional Misconduct Regulation, the Panel accepted the expert opinion provided by Ms. Steele that the Member failed to adequately consider the safety of her patient during assessment to a degree that is entirely unacceptable.

Penalty and Costs

Counsel for the College advised the Panel orally that a Joint Submission as to Penalty ("JSP") had been agreed upon and requested that the Panel make the following Order:

Requiring the Member to appear before the Panel to be reprimanded which will be recorded on the Public Register.
Directing the Registrar to suspend the Member's Certificate of Registration for a period of two (2) months, one (1) of those months to be suspended (not to be served) provided the Member successfully completes, at her own expense, a course in Dysphagia and a course in Record Keeping, each to be approved by the Registrar. The suspension shall be served at such time as shall be determined by the Registrar.
Directing the Registrar to impose on the Member's Certificate of Registration the following terms, conditions, and limitations:

a. The Member shall successfully complete before a date to be set by the Registrar, at her own expense, a course in Dysphagia and a course in Record Keeping each approved by the Registrar; and

b. The Member's practice shall be monitored by another member of the College approved by the Registrar once per week for three (3) months [a total of twelve (12) visits], such monitoring to focus on dysphagia assessment and record keeping. The costs of the monitoring shall be borne by the Member to a maximum cost of $250 per monitoring visit.

In addition to the above penalty, Counsel for the College advised that the parties had also agreed that the Member should reimburse the College for $2,500 of the costs and expenses incurred in relation to this Hearing and the investigation leading to the referral of the allegations.

Counsel for the College stated that a number of factors should be considered in arriving at an appropriate penalty, and they include:

Specific deterrence
General deterrence
Public Protection
Remediation

Counsel for the College submitted that the Panel should accept the JSP because:

The penalties properly consider all of the factors to be considered in arriving at an appropriate penalty (specific and general deterrence, public protection and remediation).
This is the Member's first time before a panel of the Discipline Committee.

The Member co-operated with the College during the investigation and during the Hearing.

PENALTY AND COSTS DECISION

The Panel deliberated and unanimously accepted the intentions expressed in the JSP. It should be noted that the Order on Costs was altered at the request of the parties to reflect modification of the Joint Submission such that the amount of costs being agreed to was reduced from $2,500 to $2,000. In addition, the wording of paragraph 1 of the Order on Penalty was modified slightly with the consent of the parties in order to be consistent with the provisions of the Health Professions Procedural Code of the Regulated Health Professions Act, 1991. The Order on Costs was also modified with the parties' agreement to reflect when the Member would be required to pay those costs.

With the full agreement of both parties, the Panel made the following Order in Respect of Penalty:

Requiring the Member to appear before the Panel to be reprimanded.
Directing the Registrar to suspend the Member's Certificate of Registration for a period of two (2) months, one (1) of those months to be suspended (not to be served) provided the Member successfully completes, at her own expense, a course in Dysphagia and a course in Record Keeping, each to be approved by the Registrar. The suspension shall be served at such time as shall be determined by the Registrar.
Directing the Registrar to impose on the Member's Certificate of Registration the following terms, conditions, and limitations:

a. The Member shall successfully complete before a date to be set by the Registrar, at her own expense, a course in Dysphagia and a course in Record Keeping each approved by the Registrar; and

In respect of costs, the Panel made the following Order with the parties' agreement:

The Member shall reimburse the College for $2,000 of the costs and expenses incurred in relation to this Hearing and the investigation leading to the referral of the allegations; and

$1,000 of those costs shall be paid within thirty (30) days of today's date (March 25, 2013) and the remaining $1,000 within three (3) months of today's date (March 25, 2013).

Reasons for Penalty and Costs

The Panel considered the submissions made by Counsel for the College on Penalty and Costs. The Member did not specifically comment on the submissions of the College but it was clear from what she did say that she was in full agreement with the ultimate disposition. The Panel believed that the main purpose of the penalty decision was to protect the public by ensuring that the high professional standards as set out by the College of Audiologists and Speech-Language Pathologists of Ontario are met and maintained by the professional membership. The Panel agreed that the reprimand component of the penalty would serve multiple purposes including specific and general deterrence, public protection and ensuring the high professional standards of the profession are followed by both the Member and the members at large as well as demonstrating to the public the College's commitment to ensuring that these standards are met. The Panel agreed that the suspension component of the penalty was adequate as the Member had been co-operative and acknowledged her mistakes. The Panel felt that the remedial component and the monitoring requirement of the penalty addressed both the need to upgrade the Member's skills and to further ensure the safety of the public.

Accordingly, the Panel accepted the Joint Submission as to Penalty and Costs with the alterations referred to above.

The Member waived her right of appeal and Counsel requested that the reprimand be made in a public forum which was agreed to by the Member. The Panel delivered the reprimand (on March 25, 2013).

I, Sandra Singbeil, Speech-Language Pathologist, sign this Decision as Chairperson of this Discipline Panel and on behalf of the Panel members.

Date: