ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR R.S.J., LANE AND J. deP. WRIGHT
B E T W E E N : )
DR. GEORGE DOUGLAS GALE ) Jerome R. Morse for the Appellant
Appellant )
- and - )
COLLEGE OF PHYSICIANS AND ) Shaun Nakatsura for the Respondent
SURGEONS OF ONTARIO )
Respondent ) Heard: February 13 and 14, 2003
1Dr. Gale appeals from the decisions of the Discipline Committee of the respondent dated February 5, and March 15, 2002. The February decision found him guilty of twelve counts of professional misconduct and the March decision revoked his certification and ordered him to pay $30,000 in costs.
2Dr. Gale is a certified anaesthetist who practices at the Rothbart Pain Management Clinic, a facility owned solely by Dr. Peter Rothbart. He has extensive experience, having worked as a staff anaesthetist at a teaching hospital in the Toronto area for many years. He held an academic post and was then involved in teaching residents and training for the specialty of anaesthesia. Dr. Gale is on staff at the clinic, along with several other anaesthetists and physicians, and treats patients with chronic non-cancer pain (CNCP). Most of the clinic’s patients have been referred to it because their pain has proved intractable to treatment elsewhere.
3Although Dr. Gale and the clinic offer several modalities of treatment, Dr. Gale and Dr. Rothbart have found that the pain of some patients can be alleviated by the administration of repeated nerve blocks, i.e., injections of local anaesthetic to block pain impulses. For some patients, the administration of the nerve blocks, which is by needle, is or can become painful and the only way repeated nerve blocks can be administered to them is under sedation, ranging from light sedation to light general anaesthesia. The use of heavy sedation or light general anaesthesia (“HS/GA”) in association with certain nerve blocks is a matter of medical controversy.
4When a nerve block is given under HS/GA, an anaesthetist administers the HS/GA and another physician inserts the needle(s) for the nerve blocks. Since 1996, Dr. Gale has actually administered HS/GA relatively infrequently and none of the issues in the case relate to the technique of administration of HS/GA by him. Rather the issue is the decision to use HS/GA with respect to six particular patients, and generally in the practice to an extent alleged to be unwarranted.
5Another charge related to the prescription of high doses of opioid analgesics, another modality of treatment Dr. Gale offers to patients with intractable pain. This modality has become widely accepted in the past 5-7 years. There are, however, issues raised as to the management of particular patients for whom opioids were prescribed.
6On May 14, 1998, KR, a 32 year old woman patient in the clinic, was given HS/GA by Dr. Thomas Dignan as a preliminary to the administration of a nerve block by another physician. Dr. Gale was not involved in this procedure. In the recovery room after the procedure, KR suddenly went into cardiac arrest. The recovery room nurse reported the patient as without pulse or blood pressure. Dr. Dignan attended and led the resuscitation effort. Dr. Gale was with another patient and attended as soon as he could. Other doctors and nurses were also involved in the efforts to revive KR. The resuscitation failed and KR died. The Coroner’s report expressed concern that there was a significant delay in commencing cardiac massage which delay may have contributed to the death of the patient.
7Following the death of KR, the respondent College appointed Dr. Claire Dionne, an anaesthesiologist who practised pain management at the Sunnybrook Pain Clinic, to conduct an investigation into the death of KR and also Dr. Gale’s practice, during which she interviewed Dr. Gale. The investigation led to charges in relation to the unsuccessful resuscitation of KR and also to charges based on the use of HS/GA in six patient files. None of these latter patients had made any complaint about Dr. Gale’s treatment of them and none testified in this case.
8Dr. Gale was charged under regulations made under the Medicine Act, 1991, with failing to maintain the standard of practice of the profession, prescribing drugs for an improper purpose, unprofessional conduct and with incompetence in connection with the fatal cardiac arrest of KR. Dr. Gale neither administered the nerve blocks nor the HS/GA to KR, but came voluntarily to assist Dr. Dignan, who was leading the resuscitation team in the recovery room.
9The main witness for the College was Dr. Claire Dionne who testified on the resuscitation, the use of HS/GA and the several other issues. She was critical of Dr. Gale on every count. The Committee accepted the evidence of Dr. Dionne over that of Dr. Gale and noted that the defence experts often supported Dr. Dionne's evidence when they were challenged on cross-examination1. Some defence experts were considered less impartial due to their relationships with Dr. Gale. The Committee “noted the absence of empathy for the patients” and noted the overwhelming tendency to use many drugs and a ‘conveyor belt type’ of practice in the Plain Clinic in the administration of the nerve blocks2. Essentially, the Committee held that because there was an alternative approach to administering the blocks, which did not involve the use of HS/GA, performing nerve blocks on three particular ganglions using HS/GA fell below the standards of practice.
10The Committee concluded that Dr. Gale “displayed a lack of knowledge, skill and judgment and disregard for the welfare of his patients that demonstrates that he is unfit to continue to practice.”3 The Committee found Dr. Gale guilty on all charges. In the penalty phase, it revoked his Certificate of Registration.
11On this appeal, the appellant submitted that the Committee was unreasonable in that it, inter alia, rejected the evidence of seven defence expert witnesses who testified that they could find no breach of medical standards and that the criticisms of Dr. Dionne were not only erroneous, but, in some instances, unreasonable. The appellant contended that the Committee rejected the defence experts as biased or unreliable when it had no grounds to do so; that it simply ignored the evidence of an eminently qualified defence expert when there was nothing on which to base even an unreasonable rejection of her evidence; and that it committed numerous palpable errors in its reasons going to the heart of the merits of the charges.
12The appellant further submitted that the conduct of the Committee in the course of the hearing, as well as in the serious errors in its reasons, gives rise to a reasonable apprehension of bias.
13Moreover, the appellant submitted, several of the specific allegations which the Committee sustained against Dr. Gale were not made at the outset of the hearing or even in Dr. Dionne’s evidence in chief; the allegations of which Dr. Gale was found guilty were those made by the prosecutor in his closing submissions after it became apparent to him that several of the original allegations could not be sustained.
14Finally, it was submitted that some of the matters on which Dr. Gale was found guilty were picayune in that, if they are breaches of medical standards, they were mere charting omissions or slips, certainly not meriting the harsh penalty of total revocation of his registration.4
15There are, therefore, issues before us as to the sufficiency of the evidence of breaches of proper medical practice, both in the administration of HS/GA and in the resuscitation effort; serious errors in the Committee’s reasons, undermining its findings and giving rise to a reasonable apprehension of bias; failure to give proper notice of the matters to be relied on, and a shifting of the allegations as the case proceeded, “the Protean nature of the case”, as the appellant put it; and issues as to the appropriateness of the penalty.
Standard of Review:
16This court has jurisdiction to hear this appeal pursuant to section 70(1) of the Health Professions Procedural Code ("Code"), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O., 1991, C. 18, ("RHPA") which reads:
70(1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practice Committee, other than a hearing of an application under subsection 72 (1), may appeal from the decision of the Board or panel to the Divisional Court.
(2) An appeal under ss. (1) may be made on questions of law or fact or both.
(3) In an appeal under ss. (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.
17In a series of cases, of which Pushpanathan 5 is a prominent example, the Supreme Court has developed the pragmatic and functional approach to determining the standard of review of administrative decisions, and the degree of deference to be accorded to the various tribunals which the courts are called upon to supervise. In this approach, the standard of review is determined by considering four contextual factors -- the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question.
The First Factor: Right of Appeal:
18Applying the first factor to the case at bar, the statutory right of appeal in s.70 is upon questions of law or fact or both. The RHPA does not contain a privative clause to screen the Committee from court scrutiny; instead it grants a very broad right of appeal. This factor tends towards a review on a searching standard.
The Second Factor: The Expertise of the Respondent :
19However, the second factor, the expertise and professional experience of the Committee in discipline matters within the medical profession, tends towards a higher degree of deference, resulting in a standard which the respondent describes as reasonableness6 and the appellant describes as “manifestly unreasonable”.7 The Supreme Court of Canada has determined that disciplinary bodies of self-governing professions should be awarded a large degree of autonomy and their decisions should not be interfered with "unless judicial intervention is clearly warranted."8. Even where, as here, there is a statutory right to appeal, a reviewing court should defer to an administrative body, rendering decisions within the scope of its expertise. In Pezim v. British Columbia (Supt. of Brokers) 9 the court stated:
Consequently, even where there is no privative clause and where there is a statutory right to appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise.
20However, a tribunal may have greater expertise on some questions that come before it than on others. The more the issue falls within the tribunal’s expertise, the greater the deference that will be called for. Where the decision-making body is more expert than the courts and the issue falls within the scope of this greater expertise, a high degree of deference should be afforded10. Thus, the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise: Pushpanathan, supra, at para. 33.
21There are several very different issues before us on this appeal. The first issue, the death of KR, involved the Committee in a close analysis of the evidence as to what happened during the 45 minutes or so when KR’s life hung in the balance. When did Dr. Gale arrive and what was said in his presence? What were the signs of cardiac arrest and when were they there to be observed? Was it apparent, and if so when, that the efforts led by Dr. Dignan were doomed to fail? These are questions of fact to be derived from the evidence. Also at play are issues of professional conduct such as when, if at all, it became Dr. Gale’s duty to intervene and direct the initiation of cardiac massage despite Dr. Dignan’s belief that there was a pulse. While courts are adept at examining and evaluating evidence, this latter sort of question demands the expertise of professionals. To the extent that there are credibility issues, it is only in rare cases that this court will interfere, and then only where there is manifest error. Hearings in this court are not a re-trial.11
22The second kind of issue before us is the group of allegations of failure to meet the standard of practice in two major aspects. The first aspect is whether the apparently widespread use of HS/GA in Dr. Gale’s practice is inappropriate as a matter of proper medical practice, or whether there is a body of responsible medical opinion supporting the use of HS/GA as he uses it. This issue does not really involve fact-finding in the traditional sense, but is more a matter of weighing the opinions of experts as to proper and acceptable medical practice, a matter close to the heart of the expertise of the College.
23The second aspect is the practice of Dr. Gale regarding the prescription of certain drugs, chiefly opioids, for patients whose charts had been reviewed by Dr. Dionne. This is, again, a matter of the expertise of the College. Some of the charges relate to the use of several other drug treatments as to individual patients in allegedly inappropriate circumstances. Here, there is little doubt as to what happened; the issue is the weighing of expert opinion as to the treatment given to each patient.
24These issues thus engage the expertise of the College at the core of the decision-making process, although the second set of issues is more removed from the court’s expertise than the first. These considerations tend towards greater deference for the committee’s decisions.
25The third issue is the allegation of a reasonable apprehension of bias, and the fourth is the failure to give proper notice of the allegations against Dr. Gale. Here, the court owes little, if any deference to the College, for it is the court’s function to enforce the rules of natural justice and procedural fairness. These matters fall squarely within the court’s expertise and not that of the College. Where a tribunal is said to have failed to give a party natural justice, the court does not need to engage in an assessment of the appropriate standard of review, but goes directly to the question whether the rules of procedural fairness or the duty of fairness have been adhered to. The court assesses the specific circumstances and determines what safeguards were required to comply with the duty to act fairly.12
26The fifth issue is the appropriateness of the penalty. This is clearly a matter engaging the heart of the expertise of the respondent and deference is appropriate, although the statute vests in the court the duty to supervise even this aspect of the respondent’s decisions.
27Thus the expertise factor leads to different results depending upon which of the five issues is being considered.
The Third Factor: The Purpose of the Legislation:
28The purpose of the statute is to vest in the College the governance of the profession which includes many functions: the development and administration of ethical and professional standards, assurances of competency through education and standards for qualification, the protection of the public through such standards and through the mechanism of the discipline process. For much of this responsibility, the policy nature of the decisions argues for a high level of deference, but the proceedings of the discipline committees are closer to the judicial role than to the policy-making role, which tends against deference.
The Fourth Factor: The Nature of the Questions:
29Fourth is the nature of the questions to be answered. This discussion has, at least in part, been anticipated in discussing the second factor. The first question is very much like a trial issue; the second partakes to some degree of professional considerations involving analysis of whether proposed new or improved methods of treatment are established as legitimate medicine or are unproven or ineffective. It would be possible to find that different standards of review, different degrees of deference, should be applied to these two questions. However, in the present case they both arise in the discipline context and not, as the second well might, in a non-confrontational setting. That context tends toward a lesser degree of deference. The third and fourth issues do not attract deference, as has been discussed.
30Particular deference must be shown to a discipline committee of a professional body where there is a penalty issue to be decided. Robins J. in Re Takahashi and College of Physicians and Surgeons of Ontario13 noted the following:
The discipline committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee.
31Further, due allowance must be made for the erroneous expression of difficult legal concepts in the course of reasons given by lay tribunals. Decisions of bodies such as the Discipline Committee of the College should be accorded a substantial degree of deference and their decision should not be subject to painstaking scrutiny by this Court. (See Re Del Core and Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 O.R. (2d) 1, at p. 7 per Finlayson J.A.) However, similar deference is not accorded with respect to findings or determinations in questions of law.
32In the light of these authorities, and balancing the factors, the court should review a decision made within the Committee's expertise or a decision on a penalty issue on a standard of "reasonableness."14 The question that we must ask ourselves is whether the Committee, in assessing credibility, finding the facts, applying the standard of proof (clear and cogent evidence) to those facts and formulating an appropriate penalty, acted unreasonably. The issue is not whether we would have done what they did. It is whether what they did is reasonably supported by reasons based on evidence and which can bear a somewhat probing examination.15 In addressing the third and fourth questions, the court will consider whether the respondent has given the appellant procedural fairness.
Part A: The Death of KR:
33The Committee found that there had been an unreasonable delay in the commencement of cardiac massage and that, in the circumstances, Dr. Gale should have taken steps to commence that procedure or to advise Dr. Dignan to do so earlier than he did. The Committee found a professional obligation on Dr. Gale as a qualified member of the resuscitation team to intervene where the team leader was failing to take adequate steps and the patient was deteriorating.16
34It based those findings on evidence which it accepted from Dr. Dionne, Dr. Hew, Dr. Dignan and Dr. Wu, plus evidence on cross-examination of several defence witnesses. It made four important findings that it found established by the evidence:17
(i) There was a significant delay in commencing cardiac massage in circumstances where there were sufficient indicators to make it clear that cardiac massage should have been commenced;
(ii) There was substantial agreement among the experts that in circumstances where KR had a weak pulse and a barely detectable blood pressure, a ‘near cardiac arrest’ situation existed and cardiac massage should have been started immediately;
(iii) A significant number of the expert witnesses testified that a team member should take over a resuscitation from the team leader where the resuscitation was failing as in the circumstances of this case. Some of the experts had themselves taken over during a failing resuscitation.
(iv) Dr. Gale was a senior anaesthetist and was knowledgeable and capable of questioning or advising Dr. Dignan on the difficulties which arose during the resuscitation. He failed to do so.
35The appellant submitted that there were serious errors in the Committee’s approach. It failed to advert to much evidence in its reasons that was seen by counsel as helpful to Dr. Gale and made a number of manifest errors.
36An important example given by counsel is the time of Dr. Gale’s arrival at the emergency. There was conflict in the evidence as to when Dr. Gale actually arrived at the scene. Counsel submitted that the Committee should not have found that Dr. Gale was not credible when he said that he did not arrive until 12:35 pm. He had been attending another patient, along with Dr. Dignan. When the emergency call came, Dr. Dignan left at once and Dr. Gale tended to the patient until she reached the recovery room and he was satisfied as to her condition. The recovery room nurse noted that the other patient arrived at 12:25. Therefore Dr. Gale could not have arrived at the emergency until a few minutes after 12:25, not at 12:17 as a late (after the event) entry on the chart by Nurse Nagel indicated.
37Counsel for the College noted that there was other evidence, some from Dr. Gale himself, that he arrived much earlier. He himself said in a report the same day that he arrived at KR at 12:20 pm and was present when Dr. Dignan started the Ringer’s lactate and administered atropine. In other statements he repeated the 12:20 arrival. He resiled from it only shortly before the hearing, explaining that he had copied the times from the nurses’ notes and only recently realized they could not be right. The nurses’ notes show that Ringer’s was started at 12:25 and the atrophine (sic) was also given then. The evidence was that Dr. Gale ‘bagged’ the patient and this was recorded as ongoing in the nurses’ notes at 12:35, implying an earlier arrival. Nurse Supervisor B. Hann made notes an hour after the event and placed her arrival at approx. 12:20 and found Dr. Gale already there bagging the patient. She then assisted Dr. Dignan by starting the Ringer’s lactate. There was a difficulty with the contemporaneous notes because nurse Nagel became so stressed that she had to be replaced, but Ms. Hann gave a competent explanation of them.18
38In summary, as to the arrival time point, counsel for the College submitted that there was evidence upon which the Committee could rationally arrive at its conclusion. The evidence might well have supported a different finding, but that was not the task of this court.
39There is a significant gap in the Committee’s reasons in this area. It actually never made any finding as to when Dr. Gale arrived. It said that it accepted the evidence of a number of doctors, but there is no unanimity among them. Dr. Dionne stated in reply evidence on this point that whether Dr. Gale arrived at 12:20 or at 12:35 made no difference to her analysis because there was still at least 15 minutes before the cardiac massage was begun, an unreasonable delay in the circumstances. This appears to be the basis upon which the Committee proceeded. It said that Dr. Dionne “credibly called into question Dr. Gale’s suggestion that he had to remain” with his other patient. But it made no finding that he did not in fact remain with that patient. If he did, he did not arrive until 12:35. It was open to the Committee on this evidence to find, as it did, that he was present during an unreasonable delay in commencing cardiac massage, so this omission in the findings does not affect that conclusion. However, we will refer to this point again in dealing with the penalty phase of the hearing.
40A second example put forward by the appellant was the Committee finding, at paragraph 79 of its reasons, that there had been an unreasonable delay in the commencement of cardiac massage. At paragraph 36 of the reasons, the Committee stated that the allegation of falling below the standard of practice attached primarily to the failure to begin cardiac massage in a timely manner.
41It must not be forgotten that the initial call came because the recovery room nurse discovered KR without a pulse and without a pressure. The patient was obviously in distress from the outset.
42Dr. Dionne testified that even if Dr. Gale had not arrived until 12:35, there was still an unreasonable delay in the initiation of massage at 12:51, sixteen minutes later. She also testified that the indications for massage existed when there was no response to the repeat doses of cardiac stimulants in the first 10 minutes of the resuscitation effort. This referred to doses of atropine (2) and of ephedrine at 12:25, adrenaline 1 mg at 12:30 and then adrenaline 1 mg at 12:35. Counsel took issue with this testimony because the chart showed a response, the ECG returned to a healthier rhythm after the large dose of adrenalin was given at 12:35.
43The entire note at 12:35 and that at 12:36 are instructive:
12:35 Adrenaline 1 mgm IV 1/1000 given by Dr. Dignan Patient bagged IV R/L [Ringer’s lactate] infusing ECG returned after adrenalin given - slowed down 12:36 Atropine 0.6 mgm IV given Patient intubated.
44The chart makes it clear that the response to the 12:35 adrenaline was exceedingly short-lived; the ECG rallied but then slowed down and within a minute atropine, another cardiac stimulant, was given. For the adrenaline to act at all there must have been some circulation to deliver the drug to the heart, but the evidence of Dr. Dionne was that the dose of one milligram was so large that anyone with any pulse would have reacted much more vigorously.19 In her cross-examination on this point, Dr. Dionne insisted that there could not be a situation where there was a pulse but no measurable pressure. There was also no reading on the oximeter on the patient’s finger indicating no oxygen present.
45The key point in Dr. Gale’s case is that he heard Dr. Dignan say repeatedly that he felt a pulse. Dr. Dignan agreed in his evidence that he did report a pulse as described by Dr. Gale. It was Dr. Gale’s position that he was entitled to accept that a pulse existed and therefore there was no cardiac arrest and no need for cardiac massage. Dr. Dionne testified that Dr. Dignan’s report of an initial pressure was a very unlikely possibility, but that once he could not obtain a pressure any more, the patient was in near cardiac arrest.20 That situation did not last for 30 minutes, the patient was soon in full cardiac arrest. Dr. Dignan’s ongoing reports of the pulse were not reasonably believable in the light of the absence of a pressure, the absence of evidence of oxygen saturation or digital perfusion, and no response to drugs. The report of the pulse had to be wrong. The patient was in cardiac arrest.
46Nurse Hann testified that Nurse Kwasnicki advised the team of the patient’s vital signs at least every five minutes and perhaps more frequently. Consistently she reported that she could obtain no pressure and no pulse. Dr. Gale himself could obtain no pulse in the patient’s neck or temple. Dr. Powell listened for heart sounds and found none, which she reported to the team.
47The Committee also had available, and accepted, the evidence of Drs. Hew and Wu. Their evidence generally supported the view that there had been unreasonable delay. Dr. Hew was a senior anaesthetist with 30 years experience. He agreed that there had been unreasonable delay in commencing cardiac massage. He testified that if KR had a weak pulse and barely detectable pressure, it was a near cardiac arrest and massage was indicated. He was cross-examined to suggest that his opinion that Dr. Gale should have intervened depended on there being a report of a “weak” pulse, whereas no one testified that Dr. Dignan had reported a “weak” pulse, only a pulse. Dr. Hew pointed out that cardiac arrest occurs when the heart fails to beat or beats too weakly to circulate blood effectively; that and not total absence of heart activity is the prompt for instituting massage.21 One must look to the effectiveness of that pulse, is it actually generating sufficient circulation. The reported pulse was not indicative of a functioning heart given the other evidence.
48Dr. Howard Wu was the physician who administered the nerve block to KR. He was essentially an observer of the resuscitation, standing near the head of the patient. He arrived after the patient had been hooked to the ECG, which had been at 12:20, and Dr. Gale arrived some four or five minutes later, approximately 12:25.22 He said that he had no opportunity to brief Dr. Gale on the kind of nerve block or the nature of the sedation which had been given to KR. He observed the rhythm of the patient’s heartbeat on the monitor and described it as idiosyncratic. He recalled that Dr. Dignan and Dr. Gale commented on it, but could not recall what they said.23 He could not be sure that the monitor revealed an improvement when the medications were given; it changed, but returned to its former state in less than three or four minutes.24
49Dr. H. Koritz was called for the defence. In chief he said that he would not start cardiac massage in the presence of a pulse. If the patient has a pulse, she should also have a pressure; if there was no pressure, there should be no pulse. It would be possible to have a pulse and not be able to get a pressure reading if the cuff was in error or the pulse was so weak it did not create enough pressure on the vessel walls to be read. The oximeter reading showing the absence of oxygen in the blood in the finger revealed that cardiac output was diminished and the patient did not ventilate. It was unlikely that the patient could have a pulse and not show oxygen saturation.25
50In cross-examination, counsel put to Dr. Koritz as a hypothetical, the fact situation derived from the chart, omitting the statements of Dr. Dignan that he felt a pulse. Dr. Koritz said that the patient was in cardiac arrest. Counsel then added the statements of Dr. Dignan that he felt a weak radial pulse at 40 beats/minute. Dr. Koritz agreed that the patient was either in near cardiac arrest or in cardiac arrest. When asked if he would start cardiac massage in that situation, Dr. Koritz said that if you followed the guidelines you probably would not but if nothing else was helping, he would do so. At the least, he would have tried to assess the pulse himself and if he found none, there would be a “full-blown code, cardiac massage etc.”26
51Dr. Paul Westacott was called for the defence. In cross-examination counsel put to him the initial summoning of the doctors because of no pressure and no pulse; no oxygen saturation on the oximeter, to assume that at 12:16 there was a weak pulse of 40 beats/minute and possibly BP of 60/30; no effective reaction to the medications; no response to painful stimuli; and monitoring of the vitals disclosed no pressure and no pulse. On these facts, Dr. Westacott said that cardiac massage should have started at 12:15.27
52Dr. Westacott disagreed with the view of Dr. Hew that Dr. Gale fell below the standard of practice by failing to recognize the need for immediate cardiac massage and failing to intervene to get it started. He disagreed because he felt that Dr. Gale was getting information from Dr. Dignan that there was a pulse and was entitled to rely on his colleague. He agreed that if there was a pulse, there should be a pressure and the nurse’s report of no pressure raised an inconsistency; that the oximeter reading indicated either a weak pulse or no pulse; that the patient was not breathing on her own; and that she was not responding appropriately to the medication. These factors would have raised the question of whether Dr. Dignan was wrong. As a reasonable anaesthetist, he would have said something, such as asking: ‘Are you sure?’ He would have checked the pulse himself, although that may be difficult since bagging the patient required both hands. As time went on with no improvement, he would have pushed the issue with further questions. Finally, he agreed that with no blood pressure, whether there was a weak pulse or no pulse, the prudent thing would have been to start cardiac massage. He also agreed that in assessing whether a physician met the standard of care, it is not a question only of what they believed, but also of what they ought to have believed or known as a competent physician.28
53It is clear that the evidence that cardiac massage was called for in the circumstances did not come only from Dr. Dionne, whose impartiality was attacked before us, but from other doctors as well. There is no need to multiply examples, what has already been referred to illustrates that there was evidence upon which the Committee could reasonably have reached the conclusion that there was no meaningful response to the administration of very large doses of cardiac stimulants and that the circumstances dictated immediate commencement of cardiac massage. It would also not be unreasonable if the Committee accepted that cardiac massage was indicated before 12:35 on the basis of the circumstances that existed from the outset.
54There was also evidence, from Dr. Dionne, Dr. Hew, Dr. Westacott to the extent noted, and others upon which the Committee could reasonably conclude that Dr. Gale fell below the standard of care to be expected from a competent physician in failing to recognize the situation and failing to intervene appropriately. As before, there was also evidence upon which the Committee might have reached a different conclusion, but re-trying the finding of the facts is not the function of an appellate court.
55For these reasons, the appeal against the findings of the Committee that Dr. Gale did not meet the standards of the medical profession in his conduct at the resuscitation must fail. Whether Dr. Gale was responsible for the death of KR, as appears to have been assumed by the Committee in the penalty phase of the hearing, is an entirely different question, which will be dealt with later in these reasons.
Part B: HS/GA:
56Dr. Gale was accused of failing to maintain the standard of practice of the profession in providing HS/GA to six specific patients to whom he administered one or more of three blocks; the stellate ganglion block, the epidural/caudal block and the paravertebral block.
57The clinic employing Dr. Gale and its methods of treatment appear to have been well-known in chronic pain circles. It’s patients came from referrals by physicians both in Ontario and abroad. It has a long waiting list. Perceived difficulties with the administration of HS/GA arose after the clinic came to the notice of the College of Physicians and Surgeons as a result of a referral from the Coroner’s office following the death of the patient, KR.
58Before dealing with the substantive evidence, it should be noted that counsel for the College in his opening submitted that Dr. Dionne would testify that Dr. Gale used some nerve blocks to treat pain when that type of block was not called for. In the end, that allegation was dropped. Counsel further pointed out that the evidence would show that Dr. Gale used nerve blocks with great frequency; that Dr. Dionne did not agree with this practice; but that there was no consensus in the profession on the matter, so Dr. Dionne could not say that Dr. Gale was in breach of the standards of the profession in the frequency with which he used blocks. The frequency with which Dr. Gale used nerve blocks on particular patients was therefore not an issue.
59The concession that Dr. Dionne could not testify that the frequency of use of the blocks was below the professional standard is of some importance for another reason. There is evidence that Dr. Dionne has been vocal about her disdain for the “block docs” and their approach to pain management focusing on nerve block, the antithesis of everything she had been taught. She also presently works with Dr. Faclier, a physician who had engaged in a difference of opinion, indeed a defamation lawsuit, with Dr. Rothbart, the owner of the clinic, over whether the clinic’s use of repeated nerve blocks was ineffective and dangerous. This matter was cross-examined upon, but is not mentioned in the Committee’s reasons. Nevertheless, the Committee would have been aware of the baggage that Dr. Dionne brought with her to the hearing.
60Dr. Dionne’s evidence was that the most probable reason for the death of KR was high spinal shock.29 In injecting the local anaesthetic to block the pain, the needle had come too close to, or into, a nerve root sleeve, and the solution, intended to be outside the sleeve, traveled into the nerve sleeve, then into the cerebrospinal fluid and basically anaesthetized the brain stem. This led to depression of the centres controlling respiratory and cardiac function leading to depression of the patient’s breathing and heart rate, and ultimately to respiratory and cardiac arrest. High spinal shock is a well-recognized, but very rare, complication of paravertebral blocks, which can happen in the best of hands. In other words, KR died from a known complication of the procedure she was undergoing.
61Dr. Dionne testified that the use of the three nerve blocks listed above is accepted by most of the practitioners in the field of chronic pain management. The complaint was not the administration of these blocks but the use of HS/GA prior to administering the block. This was allegedly done to prevent pain and/or anxiety during the administration of the nerve blocks. In Dr. Dionne's opinion little or no sedation should have been used with these patients. Certainly HS/GA should not be used to eliminate pain; the purpose should be to make the pain manageable. Either very light or no sedation was necessary for the blocks in question, and it was preferable to do these blocks without HS/GA so that the patient would be awake and able to communicate with the physician and give early warning if anything went wrong. The concern was that inability to communicate as a result of the HS/GA might lead to difficulties as had probably occurred in the case of the patient KR.
62Dr. Gale’s response was that these patients were invariably difficult cases who had been referred to his clinic by other physicians as a last resort. He argued that by the time that these chronic cases came to him they were often traumatized. He would not recommend HS/GA purely as a preference, but would assess the risks versus the benefits. He takes a humanitarian approach and offers patients pain management, provided after full discussion with the patient and only when it is clear that the patient will benefit from the blocks but will not tolerate the pain associated with administration of the blocks without sedation.30
63Counsel for Dr. Gale submitted that the Committee erred in ignoring a substantial body of medical opinion which supported Dr. Gale’s practices. He also referred to the Committee downgrading the evidence of certain defence witnesses by mistakenly finding them to be friends of or acquainted with Dr. Gale. Nothing in the literature proscribed the use of HS/GA with these particular blocks.
64While these criticisms were to some extent borne out, the Committee could, nevertheless, reasonably conclude that the weight of evidence was that the use of HS/GA was not appropriate in the six cases before it. There was evidence in the cross-examination of Dr. Gale that four of the six patients under review before the Committee received sedation without any reason being charted. One received HS/GA on the first set of nerve blocks, and two on the second set. In none of these cases did the chart reveal any reason for this.
65A review of the literature in evidence leads to the conclusion that there is powerful support for the Committee’s view that it was preferable to do the three blocks without HS/GA so that the patient could tell the physician of any early signs of complications. The leading text in the area31 does not rule out the use of HS/GA32:
The common goal, however, is to either retain the patient’s consciousness (albeit depressed) or have it restored very soon after the procedure has been completed.
but warns repeatedly against having the patient unconscious:
Excessive sedation incurs the risks of airway obstruction or circulation collapse and will also mask the early warnings of complications of the block, such as an unintentional high spinal or epidural block or intravascular injection.33
There should be no local pain during the injection of solution. Pain indicates misplacement of the needle and the injection should stop. *** Maintaining verbal communication with the patient is the simplest, and in some ways the most reliable, method of detecting adverse side effects.34
A cautious anaesthesiologist and a conscious patient usually can detect the prodrome of CNS toxicity before frank seizures occur.35
66Other exhibits contain similar statements:
In adult patients, administration of conscious sedation levels of anxiolysis and injection of 1 per cent lidocains should allow most procedures to be performed with the patient both awake and comfortable. Although it may be customary in some settings to perform regional anaesthesia in the anaesthetized patient, the anaesthesiologist should carefully consider whether the benefits of this approach are greater than the risk of a rare catastrophic, but potentially preventable, outcome.36
67The discipline committee found that Dr. Gale had made extensive use of HS/GA for the three types of nerve blocks in question; that this had been done very early in the patient’s treatment; and that in the cases of the patients mentioned, his notes contained insufficient clinical indications supporting the need for this degree of sedation. It did not accept that there was a need in these particular cases for the use of HS/GA. As has been set out above, great deference must be extended to professional tribunals when they are determining standards to be met by the members of their profession. There was evidence upon which the Committee could come to its conclusion that it was preferable not to use HS/GA in such circumstances, that in the cases of the patients specified, the clinical notes did not contain information which would justify the use of HS/GA, and that in the circumstances Dr. Gale failed to maintain the standard of practice of the profession.
68It follows that the appeal against the Committee’s finding that Dr. Gale did not meet the standards of the profession in the use of HS/GA in the six cases before the Committee must fail.
Part C: Opioids:
69The Committee dealt with Dr. Gale’s use of oral opioids37 in high dosages for four of his chronic pain patients beginning at paragraph 147 of its reasons. It dealt with the evidence as to each of the four and stated that Dr. Dionne had opined that the manner in which Dr. Gale administered the high doses of opioids used for these patients did not meet the standard of practice. Dr. Dionne had said that, at the time of these treatments, there were a few published guidelines in other jurisdictions, although not in Ontario, as to the administration of these opioids. In the case of these four patients there was rapid escalation of dose without proper documentation of the effects and the reason for the increase; lack of documentation on why these drugs were combined with frequent nerve blocks; lack of documentation to explain high levels of sedation; absence of consideration of the advice of experts as to possible development of addiction; absence of documentation of the reason for these increases in the absence of charted information as to patient response.
70It was submitted by the appellant that the Committee misunderstood Dr. Dionne; she had not criticized Dr. Gale for failing to document the levels of pain, restrictions on activities and improvements brought about by the prescribed drugs. Her concerns had been more related to the rapid escalation of doses to high levels, which she saw as indicative of addiction. She did not believe that doses should be elevated until they had the desired effect (“dosing to effect”) in non-cancer patients, rather the aim should not be to eliminate pain, but to reduce it to the point that permits improvement of functioning. She had been contradicted by a paper published by the Canadian Pain Society, which referred to the ‘dosing to effect’ principle as valid for all types of pain management. The Committee had been wrong to attribute to Dr. Watson the evidence that there was a standard of practice requiring the notation of the daily living activities of patients receiving opioids; such a practice only became widespread by 1998 at the earliest, which was after the events of this case. The Committee had also been wrong in stating that the high levels of opioids was not the issue: that was in fact the issue on which Dr. Dionne focused. The documentation issue emerged only after the prosecution realized that it could not succeed on the medical issues because the weight of the evidence supported the use of opioids as Dr. Gale used them.
71The evidence discloses that the use of high doses of opioids for patients with chronic non-malignant pain had been a matter of medical controversy because of the addictive nature of these drugs. According to exhibit 29A, “Evidence–Based Recommendations for Medical Management of Chronic Non-Malignant Pain”38, seven North American jurisdictions published guidelines on the subject between 1993 and 1999, two of which had conducted systematic reviews of the relevant literature. Alberta had published the earliest, in 1993, and it had since been essentially adopted by New Brunswick, British Columbia and Manitoba. A draft report to similar effect was published in Ontario in 1998.
72There was agreement among these guidelines that patients in need of pain control would be unduly disadvantaged by overly restrictive use of opioids based on fear of addiction, but that since they could be abused, there must be comprehensive patient assessment; good documentation, including procedures for assessing pain; documentation of the analgesic effect and any adverse effect; and adequate vigilance to prevent abuse. Check-lists are provided in exhibit 29A for physicians to document adverse effects and changes in the patient’s physical and psychological functioning such as changes in mood, libido, sleep and awakening habits, and activities of daily living, both at home and at work. One of these check-lists is based on one used at the Toronto Hospital as early as 1995.
73Dr. H. Koritz, called for the defence, expressed some concern when he testified in chief, which counsel for the respondent followed up in cross-examination, that the chart lacked explicit indications of how the patient was doing on the drug regime:39
Q. So ADL means activities of daily living, is that right?
A. Yes, sir.
Q. And that is one of the standard measures by which you can tell whether or not a patient is receiving from (sic) [some] effect from the opioid dose?
A. The ADL, the FDL and the so-called visual analog scale where you ask the patient to rate his pain from one to ten.
Q. What was missing was the ADL?
A. I couldn’t find explicitly. However, they can now vacuum-clean better, he can take care of, you know, what he needs to take care of. What was written down so far as I could see in the records was patient so-and-so is doing better, but how he is doing better, that’s what I was missing.
74The Committee heard evidence from four other defence witnesses on this subject. Dr. Peter Watson and Dr. Helen Hays testified only about opioids. Dr. David Buckley testified mainly on HS/GA, but noted that he had not observed anything in the charts, nor in the criticisms by Dr. Dionne, that he felt revealed any breach of professional standards by Dr. Gale in prescribing and charting the use of opioids by his patients40. His report did not refer to the opioid prescription and charting issues; he testified about those at the hearing from his memory of the charts.41 He prescribes opioids in high doses within his own practice. He did not agree with Dr. Dionne on the charting issues.
75Dr. Ellen Thompson, an anaesthesiologist with extensive experience in pain management, testified about nerve blocks, pain management including the use of opioids, and resuscitation. Due to the volume of material, her report did not include a patient by patient review. She agreed that patients taking opioids need to be carefully monitored, but did not agree with Dr. Dionne that the doses had to be kept from creeping up. She described the ‘dose to effect’ principle as the currently accepted way to use opioids in chronic pain patients;42 the report of the patient is the only way we can monitor the effectiveness of the dose and increase it if indicated, subject to the occurrence of side effects that preclude increases. She did not testify as to the adequacy or not of Dr. Gale’s charts.
76Dr. Watson is a neurologist who treats chronic pain patients by pharmacological means, without the use of nerve blocks. He considered the six charts before the Committee from Dr. Gale’s practice, and found them acceptable or better. He was severely criticized by the Committee for defects in his report, including not bringing a copy with him, and not noting incomplete consent forms for the HS/GA. The last-mentioned was quite unfair, as he was not asked to deal with that aspect of the charts. The Committee was critical of him for not documenting the frequencies and escalations of opioid administration in his report. This data was in the charts themselves, which Dr. Watson had in the box.
77Despite these criticisms, which the appellant reasonably described as superficial, the Committee took Dr. Watson seriously. It focused on the evidence that Dr. Watson had, for several years, been following in his practice most of the guidelines for opioid prescription which had only been recently published by the College in exhibit 29A, supra, and that he testified that prudent practitioners were in fact doing so well before that publication.
78Dr. Watson said43 that information as to the patient’s ability to cope with the activities of daily living had been recognized in recent years as a useful thing to document in assessing the efficacy of treatment, but he was not sure when it became a widespread practice. The recording of such information had now become a standard for a reasonable practice, but he was not sure when. It was not eight or nine years ago [from 2001 when he testified] but the last two or three years.
79Dr. Helen Hays, CCFP, FCFP, OC, associate clinical professor of Family Medicine at the University of Alberta, was a member of the committee of the College of Physicians and Surgeons of Alberta which produced the Alberta Guidelines on opioids and chronic non-cancer pain (CNCP) in 1993. She was also a member of the task force of the Canadian Pain Society which developed that Society’s paper on the use of opioids for the treatment of CNCP, exhibit 28, one of the papers reviewed in the production of exhibit 29A referred to above. She is currently a member of the two review committees established to review the Alberta College’s and the Pain Society’s papers. She has thirty years experience as a physician, the last twenty in the areas of palliative care and the treatment of pain, both cancer-related and CNCP. She teaches the management of pain. She gave extensive evidence in support of Dr. Gale’s treatment of the patients whose files were at issue before the Committee. She was taken through the seven files and her attention was drawn to the criticisms leveled by Dr. Dionne and she commented. Almost without exception, she disagreed with Dr. Dionne and, for the most part, this did not change materially when she was cross-examined.
80Specifically, Dr. Hays testified that Dr. Dionne was out of touch with modern thinking on the matter of ‘dosing to effect’ when using opioids.44 The principle of dosing to effect, that is increasing dosages until maximum relief is experienced, or unacceptable side-effects appear, is a principle of pharmacology applied to every other class of medication and is supported by an increasing number of papers, including exhibit 28 and others listed in it, as appropriate for the treatment of CNCP. She agreed that there was still controversy about the use of opioids in this manner, but expressed surprise that anyone working in chronic pain management would hold the view expressed by Dr. Dionne.
81Dr. Hays emphatically rejected Dr. Dionne’s view that chronic depression contra-indicated the use of opioids. In her own practice, she found 100% of her patients presented with depression: their chronic pain itself was the main reason for it. While one also treats the depression with anti-depressants, the true treatment is to relieve the pain.45
82Dr. Hays also testified that what Dr. Dionne was expecting from Dr. Gale was a higher standard of note-taking than was normal and the notes she saw from him were very complete when compared to others she had seen from anaesthetists in her own experience.46 In her view, Dr. Gale’s prescribing practices, amounts prescribed and time line to the next appointment, size of dose and rate of escalation of dosage, were all appropriate.47. She did agree with the need to monitor the patient’s use of and response to the prescribed opioids, but she did not share Dr. Dionne’s view that Dr. Gale fell short in this aspect of his practice.
83During cross-examination,48 Dr. Hays referred to her practice of tending to increase the opioid dosages until the patient felt that there was some improvement in the pain, and agreed that she would chart and record the reasons why the dosage was being increased; there would normally be a note in the chart; she was very careful in those notations. She agreed that in Dr. Gale’s charts there were no specific notations indicating the reasons for medication changes, but said that he recorded the level of pain reported by the patient and that would indicate the need to increase the dose, and that was within a reasonable standard of practice.
84The Committee made no reference to Dr. Hays in its reasons. At paragraph 165, in its findings as to the opioid issue, the Committee referred to the evidence of Dr. Watson, and then said it: “took note of the comments of the other defence witnesses and found that they essentially agreed with the evidence of Dr. Dionne.”
85The appellant submitted that the Committee committed an egregious error in failing to make any reference whatever to the evidence of Dr. Hays. While omissions in the reasons do not necessarily mean that the Committee ignored or simply forgot her evidence, an appellate court is entitled to intervene when it comes to a reasoned belief that this has occurred. Dr. Hays is an eminent pain specialist, yet her evidence is not mentioned at all. She was in the box for an entire day and the appellant submitted that no reasonable basis for ignoring her exists. Not only was she not mentioned, but, assuming she was included in the Committee’s reference to the “other defence witnesses”, it was manifest error to say that she “essentially agreed” with Dr. Dionne.
86The respondent submitted that it is not reversible error not to refer to specific evidence. While not using her name in its findings on the opioid prescribing issue, the Committee said that it paid close attention to the evidence of Dr. Watson and “took note of the comments of the other defence witnesses and found that they essentially agreed with Dr. Dionne.” Counsel submitted that on the issues on which Dr. Gale was convicted, the need to adequately record and monitor the indications for, and the effect of, the increased doses, the other defence witnesses did agree with Dr. Dionne.
87On our review of the evidence, that may be so, as to the effects of the dosages, in the case of Dr. Watson and Dr. Koritz, but the evidence of Dr. Buckley and of Dr. Hays is to the contrary. It is not possible to read the whole of the evidence of Dr. Hays and come to the conclusion that she essentially agreed with Dr. Dionne. As noted above, she disagreed with Dr. Dionne on fundamental points. Taken literally, the Committee’s statement is manifestly wrong. Even confined to the documentation issues, which the Committee did not do, it is wrong. What is the effect of this error?
88In Housen49, the majority in the Supreme Court reversed a ruling of the Saskatchewan Court of Appeal and restored the trial judge’s decision that the defendant municipality had been negligent in the construction and signage of a sharp S-curve on a road at a location where visibility was obscured by uncleared bush. The dissenting minority considered that the trial judge had not expressly considered the conduct of the ordinary motorist and so failed to apply the correct standard of care. The majority judgment, at paragraph 39, emphasized that the failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsider the evidence. It then cited Van de Perre50, discussed below, and concluded that in the absence of a “reasoned belief in this case that the trial judge forgot, ignored or misconceived the question of the ordinary driver,” it would be an error to engage in a re-assessment of the evidence.
89In Van de Perre, Bastarache J., considering a similar question, wrote at paragraph 15:
If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate [page1026] court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6, 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.
16 In the present case, the Court of Appeal considered the decision of the trial judge and decided that it was within the scope of review to examine all the evidence and determine whether the trial judge weighed the evidence improperly. It is in reconsidering the evidence that the Court of Appeal determined that the trial judge had made material errors. As discussed above, this is not the proper method of appellate review
90In Van Mol itself, the majority of the Court of Appeal of British Columbia said:
¶ 13 Sometimes a trial judge may state a piece of evidence in his or her reasons in a way which is clearly incorrect. But much more often the appellant's argument rests on the fact that the trial judge omitted to refer to a piece of evidence that was relevant to a conclusion or finding of fact. Such an omission is not itself an error unless the circumstances are such that the omission must give rise to a reasoned belief that the trial judge must have forgotten, ignored, or misconceived the evidence in a way which affected his or her conclusion.
91In the present case, the Committee has stated Dr. Hays’ evidence incorrectly by lumping her in with other witnesses, all of whom are said, incorrectly, to have agreed with Dr. Dionne.
92The Committee's error goes to the heart of Dr. Gale's defence on the opioids issue. Dr. Hays was his chief witness and she disagreed with Dr. Dionne on virtually every substantive point of criticism as to Dr. Gale's treatment of his patients with opioids. Her evidence as to Dr. Dionne’s being out of touch with developments in opioid therapy has the potential to undermine Dr. Dionne as an expert. Dr. Hays did agree that such patients required careful monitoring, but did not agree that Dr. Gale had fallen short in his charting of those treatments; rather his notes compared favourably with the records of other anaesthetists. It is impossible to read her evidence and come to the conclusion that she generally agreed with Dr. Dionne. The Committee either entirely misunderstood her evidence, or it just did not have that evidence in mind in coming to its conclusions. Either way, the evidence is so central to Dr. Gale's case that failing to deal with it must be regarded as rendering the Committee's decision on the opioids issue unreasonable.
93Accordingly, the Committee decision convicting Dr. Gale on count 10 is set aside. While it might be open to us to review all of the evidence and reach our own conclusion, this is an appeal from a specialist tribunal on a matter within its acknowledged expertise, and it is preferable, in our view, to remit this charge to the College for such further proceedings as it may deem fit, before a Committee differently constituted.
Part D: Administration of High Dosage of Marcaine to P.P.:
94At paragraphs 123 to 128 of its reasons, the Committee found that Dr. Gale had failed to maintain the standards of the profession by reason of administering high doses of Marcaine, a local anaesthetic. In detailing its findings, the Committee referred to a dose recorded on October 22, 1999, as “70 cc. of 0.735% [Marcaine] which was a toxic dose.” There is no such evidence. Dr. Dionne testified that the entry had to be a charting error; it had to be 3.75%. Counsel for the College admitted in argument that the evidence did not support that comment. He sought to persuade us that the other doses, which were accurately described, were also too high, and therefore the finding overall could stand. We cannot agree. The Committee twice referred specifically to the October 22nd entry. There is no way of knowing what its decision would have been if it had not misunderstood this evidence.
95The Committee’s decision on this issue is therefore set aside and the issue remanded to the College for such further action as may be thought advisable.
Part E: Competence and Unprofessional Conduct:
96In paragraphs 167 to 169, the Committee finds Dr. Gale to be incompetent. Paragraph 168 is specifically related to his conduct during the resuscitation where the Committee’s findings of guilt have been sustained. However, the remaining two paragraphs are in general terms and are based upon the totality of the Committee’s findings on the 10 substantive charges. Since the Committee’s findings on two of those charges have been set aside, the general findings of incompetence, and that in paragraph 170 of unprofessional conduct, also based on all the matters, must be set aside and remitted to the College for further consideration.
Part F: Reasonable Apprehension of Bias:
97The appellant submitted that:
… an “informed person, viewing the matter realistically and practically–and having thought the matter through–would conclude that it is more likely than not” that the panel in this case, “either consciously or unconsciously, had minds that were closed or were predisposed” to finding Dr. Gale guilty. Particularly disturbing was the panel’s rejection of the defence witnesses as biased when there was no cogent evidence that they had any relationship with either Dr. Gale or the Rothbart Clinic which could affect their impartiality, coupled with the panel’s total silence on serious matters affecting Dr. Dionne’s credibility. The panel ignored the existence of bodies of professional opinion which support the use of HS/GA with nerve blocks for patients who give their informed consent and which support the principle that “dosing to effect” applies to pain management as well as other areas of medicine. Panel members pursued questions that were rhetorical and berating, as well as questions pertaining to whether there was a financial motive for repeated nerve blocks and HS/GA when those matters had been insinuated, but not squarely raised.
98Most of these matters are dealt with in the substantive review of the reasons above. Two that are not related to the reasons, but to the conduct of the hearing, require to be discussed here. They relate to the questions asked by the Chairperson during the hearing, both as to the manner of questioning (“rhetorical and berating”) and as to the alleged irrelevance and impropriety of the subject matter.
99The first submission as to questioning is set out in paragraph 12 of the factum of the appellant:
Although Dr. Watson, not being an anaesthetist, could not comment on the unsuccessful resuscitation of K.R. and Dr. Gale neither administered nerve blocks nor HS/GA to K.R., with the result that any deficiency in the consents signed by K.R. was irrelevant, the Chair berated Dr. Watson with the following question:
‘You were aware, I assume of the reasons for these proceedings and for getting your opinion, which was the death of a patient. Did not that sharpen your senses or your need to clarify in going through the charts, that you would look to see what information was given as far as consent to procedures?’ 51
100This question was asked at the end of Dr. Watson’s evidence. He had testified to his examination of the charts of certain patients referring, as he did so, to bundles of documents. The Chairperson asked what was in those bundles and Dr. Watson explained that they contained the history, progress notes, consent forms, investigations and specialist consultations. The Chairperson continued, asking if anywhere in the bundles it was set out what information was given to the patient that was necessary for informed consent. Dr. Watson said he did not recall any comments about what was discussed as he was not focusing on that. The Chairperson then asked whether he had not been sensitized by the death of a patient to sharpen his focus as to consent. Dr. Watson asked her to expand on that, and the Chairperson then asked the question to which objection has been taken. Before Dr. Watson answered, she added an important point, saying:
It all depends on what you were asked to do with the charts, of course.
101Dr. Watson then explained that his focus was on responding to Dr. Dionne’s comments about the charts and commenting from his perspective as a neurologist, who does not often get consents for procedures, so he focused on the presence of the form and not its content. The exchange ended amiably with the Chairperson thanking Dr. Watson for his help to the Committee.
102Taken in its context, and reading the full question, the exchange seems unexceptional, with courtesy on both sides. The last part of the question, not included in the complaint, shows a sensitivity on the part of the Chairperson to the position of Dr. Watson as a witness responding to the points that he was asked to comment on. When he stated the focus of his examination, the Chairperson accepted the answer. There was no scolding and no rebuke, the two meanings of ‘berate’ in the Shorter Oxford. We do not find that the question was put in a berating manner showing any animus against the witness or Dr. Gale.
103However, despite the acknowledgement of the Chairperson that ‘it all depended’ on what Dr. Watson was asked to do and his explanation of his focus, as a neurologist called to discuss Dr. Dionne’s report, on other aspects of the chart, this question turns up as a quite unfair criticism of Dr. Watson at paragraph 157 of the Committee’s reasons.
104It was submitted that the question links the death of KR, who was not a patient of Dr. Gale, with Dr. Gale’s practices in obtaining informed consents to HS/GA. There was no issue before the Committee as to any failure of Dr. Gale to obtain such consents. The question is some evidence that the Committee was not clearly dividing the resuscitation issue from issues relating to Dr. Gale’s overall practice, a natural and perhaps inevitable result of their being heard together. There is nothing before us to indicate that the hearing of the two parts of the case together was ever objected to, and the question does not appear to indicate any bias against Dr. Gale.
105The second incident of alleged berating was set out in paragraph 26 of the factum of the appellant. It arose over the issue of the relationship at the resuscitation between Dr. Gale and Dr. Dignan, who was leading the effort to revive KR. Was Dr. Gale ‘senior’ to Dr. Dignan? The latter had admitted in evidence that he was actually leading the resuscitation team; that KR was his patient; that he felt competent to lead; that he felt that Dr. Gale would have thought him competent; and that he was making the decisions. It was Dr. Gale’s expressed view that he was not entitled to overrule Dr. Dignan in the circumstances as they existed that afternoon. Counsel for the appellant submitted:
Despite Dr. Dignan’s admissions, the Chair, at the end of Dr. Gale’s evidence, asked him in a berating manner why he kept denying he had any power over Dr. Dignan. She also asked, rhetorically, whether she “had it wrong” that “there’s a gut instinct in the average physician to forget about protocol and jump in there and help”. Dr. Gale replied that he “did jump in and help”.52
106This passage occurred as a part of a series of questions by the Chairperson covering matters she wished to clarify. The question objected to is, perhaps, a tough one, but there appears to be no element of ‘berating’ in the context. It is natural that members of a tribunal ask questions such as these; that some questions are tough ones does not indicate bias.
Part G: Absence of Proper Notice of Certain Allegations:
107The formal charges are almost ritualistic in their language and devoid of detail. However, there was a process of disclosure of reports, witness statements and exhibits prior to the hearing, which provided the factual underpinning of the prosecution case. While counsel for Dr. Gale raised a few specific matters at the opening, there was no complaint that there was insufficient disclosure for Dr. Gale to know the case he had to meet. The Committee considered his objections and found no prejudice to Dr. Gale in the lateness of the production of certain material. These sorts of issues arise regularly and are normally resolved by accommodations between counsel and rarely cause more than minimal inconvenience. However, before us, the complaint was that the case was “Protean”: when one allegation could not be proved, another was substituted and the appellant was convicted on allegations of which he had no notice.
108It is clear that natural justice requires that adequate notice of the substance of charges be given to the person charged before the hearing. While charges before professional bodies need not have the particularity of criminal indictments, they must be sufficient to bring home the specific matter charged. Where the practice is to provide particulars of general charges via a post-charge disclosure process, there is a probability of uncertainty as to exactly what is relevant. That occurred here. The prosecutor gave, as part of his closing statement, a clear description of what was involved in each charge. In our view, that was too late. He should have provided that list to the Tribunal at the opening of the case. This would have reduced the number of conferences with the witness excluded, which interrupted this hearing, and also avoided the claim that the prosecutor’s case was “Protean” in that it was constantly changing.
109Two specific matters of inadequate notice were raised.
Opioids:
110The first had to do with the charge that Dr. Gale prescribed opioids “for an improper purpose.” Although the conviction on this issue has been set aside, we will briefly refer to the notice point. In the appellant’s factum at paragraph 55, it is said:
In particular, it is significant that, on the charge of prescribing drugs “for an improper purpose”, Dr. Gale was condemned, in essence, for failing to adequately chart, not his prescriptions, but rather, the response of his patients to opioids, most particularly in their activities of daily living. There was no finding that Dr. Gale was prescribing opioids “for a purpose” other than alleviating their pain. [emphasis in the original]
111At paragraph 163, the Committee found Dr. Gale guilty on this charge in that he did not chart adequate indications for the escalation of doses and failed to adequately record and monitor the effect of the increased doses. Counsel for the appellant is thus partly correct in stating that Dr. Gale was convicted on his charting practices and not for the level of opioids which he prescribed. It must be noted, however, that the distinction is more semantic than real. If proper practice is to monitor the patient and find and record reasons for any increase in dosage, the absence of records supporting the dosage levels is not a mere ‘charting practice’, but may well reveal an absence of any appropriate basis for those doses, or a lack of understanding of the risks associated with escalating levels of these drugs.
112If counsel had not been aware that one of the issues was the level of Dr. Gale’s documentation, there might well be some importance to this objection. However, in his opening for the defence, immediately after counsel for the respondent opened the case, Mr. Morse referred the Committee to the allegation of prescribing drugs for an improper purpose and said he would call Dr. Watson to address that issue. He said that Dr. Watson was a pain management specialist well versed in prescribing for this sort of patient and continued:53
Similarly, Dr. Watson addresses the submission that you heard in opening this morning, about Dr. Gale’s charting. And as I understand the allegation, it has something to do with his charting and diagnosis sort of rolled up. It’s a little bit vague. But Dr. Watson squarely addresses that, and is very clear that Dr. Gale met a reasonable standard of practice, indeed many cases exemplary, in terms of his charting and in terms of his diagnoses and his referrals to the consultants …
113It seems that counsel was aware at the opening that the charting practices of Dr. Gale with reference to prescribing opioids for his patients were at issue. There is no merit in the submission that Dr. Gale did not have sufficient notice of the real meaning of this allegation.
The Conveyor Belt:
114The second objection under this head is set out in the appellant’s factum at paragraph 55 as follows:
Finally, it is apparent that the panel was improperly concerned with and condemned Dr. Gale for matters which were not in issue, in particular whether the Rothbart Clinic treated patients for financial motives as if they were on a “conveyor belt” and the question of whether patients who received HS/GA for nerve blocks had given informed consent.
115That was a reference to the Committee’s paragraph 172 in which it castigated Dr. Gale for lack of empathy with his patients, an ‘overwhelming’ tendency to use many drugs and a ‘conveyor belt type of practice in the Pain Clinic in the administration of the nerve blocks’. It contrasted this with other practices where blocks were administered without HS/GA.
116The respondent’s answer to this objection is that no findings were made of incompetence or misconduct for treating patients for financial motives, or on a conveyor belt, or without adequate information and informed consent. That there may have been references to these matters in comments by the panel at paragraphs 171 and 172 of the reasons or during the hearing does not offend the requirement to give notice, although such comments may be relevant to other aspects of the hearing.
117Counsel for Dr. Gale submitted that the reference to ‘conveyor belt’ in particular showed that the Committee had not understood that there was no issue before it as to the frequency with which Dr. Gale administered blocks to his patients. Dr. Dionne had conceded that she could not establish any breach of standard in that connection.
118Counsel was correct; the issue was conceded in the opening by counsel for the College. Similarly, there was no charge against Dr. Gale for any practice but his own. The Clinic was neither owned nor directed by him and he could not be expected to come prepared to defend what other physicians did in their practices.
119The Committee had before it some 20 files, selected on an unknown basis, of which 6 were closely examined by Dr. Dionne. How were the 6 chosen? There is no evidence but that of Dr. Gale, who said it was 6 of his most intractable pain patients. Although the Committee is entitled to find Dr. Gale incompetent because of his handling of even a very small number of patients, Dr. Dionne’s analysis of 6 files cannot be an adequate review of the entire practice.
120Nurse Hann’s statement that it was not uncommon for patients of the clinic to receive HS/GA on their first nerve block was directed to the clinic and not to Dr. Gale’s personal practice. The reference in paragraph 172 to the ‘practice in the Pain Clinic’ goes well beyond Dr. Gale’s practice and appears to blame him for the alleged sins of the entire Clinic when the Committee had little or no cogent evidence as to the practice other than these six files of Dr. Gale’s. The references to the Day Books of Dr. Gale were undertaken by the Committee without the benefit of any evidentiary basis other than the raw data in them. They clearly need some analysis from a witness familiar with them. The Committee cannot substitute its expertise for evidence.54 This reference to ‘conveyor belt’ is unwarranted and highly prejudicial to Dr. Gale, but not so much on issues of guilt as on the penalty, which will be discussed next.
Part H: Penalty:
121The Committee delivered its reasons for imposing the penalty of revocation of Dr. Gale’s certificate on March 15, 2002. It is clear that the penalty was imposed based on the totality of the acts of which Dr. Gale had been convicted. Since some of those convictions have been set aside, it follows that a penalty based on all of them must also be set aside. We are also concerned that the conveyor belt reference demonstrates a certain focus on matters not actually in issue before the Committee.
122In remitting the penalty to the College for further consideration in the light of our rulings, we note with concern the Committee’s finding that Dr. Gale demonstrated a lack of empathy for KR in refusing to recognize his responsibility for her death. The Committee made no finding as to when he arrived at her bedside, but on the evidence, it appears to us that, unless he arrived before 12:25, the resuscitation had already failed before his arrival.
123KR was received in the Recovery Room at 12:05 with BP 120/80 and a pulse of 72. At 12:10 she was checked and had 120/80 and pulse 70.55 That is the final contemporaneous note before the emergency. Later additional notes reveal that at 12:15 she was found pulseless and no measurable BP. The alarm was then given. Contemporaneous notes resume and show that at 12:20 oxygen by mask was given and KR was hooked up to the ECG machine. At that point, KR had been without a pulse for somewhere between 6 and 9 minutes; she was already significantly brain-damaged and was possibly already approaching death. When she had been without a pulse for 10 minutes, in all probability she would die.56 Even if Dr. Gale arrived at 12:20, there would have been little hope for KR. Dr. Dionne conceded that, on his arrival, Dr. Gale would have required some period of time to realize that Dr. Dignan’s report of a pulse could not be believed; up to five minutes could be accepted or maybe to the first few doses of atropine and adrenaline.57 The first doses of atropine are charted at 12:25, at which time KR had been without a pulse for at least ten minutes and possibly fourteen.
124In the circumstances revealed by this evidence, it appears unreasonable to demand of Dr. Gale that he admit responsibility for the death of KR, and to penalize him for not doing so. It seems quite improbable that a reasonably timely intervention on his part could have affected the outcome. As noted above, that does not excuse his failure to act when he should have realized that Dr. Dignan was in error as to the pulse, but, in asking for an admission of responsibility for her death, the Committee demanded too much of him.
125Even if we had not set aside any of the findings of guilt, we would have set aside the penalty. As we have set aside some of the findings of guilt, but not all, we are remitting the penalty to the College for reconsideration. In doing so, we express our view that, even if Dr. Gale had been guilty of all of the offences of which he was convicted, the penalty of revocation, the capital punishment of a professional, was excessive to the point of being unduly harsh. The severity of the penalty bears the marks of punishing Dr. Gale for the activities in the clinic of which the Committee disapproved, such as the “conveyor belt”.
126Other matters were raised in the factum of the appellant, but were not pursued in oral submissions, and will not be dealt with.
127An order will issue allowing the appeal in the respects noted above, setting aside the penalty, and remitting this case to the College for such further action as may be thought advisable. Any further proceedings shall be before a Committee differently constituted.
128The parties may make submissions as to costs, the appellant within 30 days, the respondent within a further 20, and any reply within a further 10 days.
Lane J.
___________________________
Blair R.S.J.
J. deP. Wright J.
DATE: October 10, 2003
COURT FILE NO.: 799/01
DATE: 2003/10/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR R.S.J., LANE AND J. deP. WRIGHT
B E T W E E N :
DR. GEORGE DOUGLAS GALE
Appellant
- and -
COLLEGE OF PHYSICANS AND
SURGEONS OF ONTARIO
Respondent
J U D G M E N T
LANE J.
RELEASED: October 10, 2003
Footnotes
- Reasons, paragraph 171; Appeal Book tab 4.
- Ibid. paragraph 172.
- Penalty reasons, paragraph 14; Appeal Book tab 5.
- Taken from paragraph 4 of appellant’s factum.
- Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982. More recently see B.C. College of Physicians v Dr. Q, S.C.C. 2003 SCC 19, [2003] S.C.J. No. 18; April 3, 2003.
- Respondent’s factum paragraphs 50 - 52.
- Appellant’s factum paragraph 51.
- Pearlman v. Manitoba Law Society Judicial Committee, 1991 26 (SCC), [1991] 2 S.C.R. 869 at 888.
- 1994 103 (SCC), [1994] 2 S.C.R. 557 at 591.
- see Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at para. 50
- See: Deitel v. College of Physicians and Surgeons of Ontario (1997), 99 O.A.C. 241, paragraphs 149 ff.
- London (City) v. Ayerswood Development Corporation, 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at paragraph 10.
- (1979), 1979 2045 (ON SC), 26 O.R. (2d) 353, (Div. Ct.) at 363.
- See Dr. Q, supra, note 5.
- Law Society of New Brunswick v. Ryan, 2003 SCC 20.
- Reasons, Appeal Book, page 28, paragraph 79.
- Ibid. page 29, paragraph 81.
- Transcript, vol.16, pages 38 –40.
- Transcript volume 8, page 58: “Nobody with a pulse would not respond to a milligram of adrenaline. She should have had a pressure of 300 and a heart rate of 175.”
- Ibid. page 59.
- Transcript vol. 5 pages 126 to 146; esp. pages 132-141. At page 133: “ A. I’m suggesting to you, whether or not there was a pulse, or there was no pulse, it was either a near cardiac arrest situation or a cardiac arrest situation, and in either situation external cardiac massage, together with the other measures of CPR, should have been initiated.”
- Transcript, vol. 3, pages 58-60.
- Ibid. page 78.
- Ibid. page 79.
- Dr. Koritz, transcript vol. 12, pages 74 to 77.
- Ibid. pages 90 to 94.
- Transcript, volume 15, pages 110 – 114.
- Transcript, volume 15, pages 134 to 141.
- Transcript, vol. 3, page 195-196.
- Transcript, volume 19, pages 165 to 170 (cross-examination)
- Cousins & Bridenbaugh “Neural Blockade in Clinical Anesthesia and Management of Pain”
- Ibid. chapter 6 (exhibit 41)
- Ibid. chapter 6, page 190 (exhibit 41)
- Ibid. chapter 9, page 335 (exhibit 50)
- Ibid. chapter 21, page 640 (exhibit 52); CNS = central nervous system.
- Horlocker and Caplan: “Should Regional Blockade be Performed on Anaesthetized Patients?” (exhibit 42, p. 7)
- Opioid: Any compound resembling cocaine and morphine in its addictive properties or in its neurochemical and esp. analgesic effects: New Shorter Oxford, 1993.
- Published November, 2000, by the College of Physicians and Surgeons of Ontario, chapter 3.3, page 25.
- Transcript, vol. 12, page 82.
- Transcript vol. 10, pages 32, 33, in chief; vol.17, page 64 in re-examination.
- Transcript, vol. 17, pages 7 to 9, in cross-examination.
- Transcript, vol. 13, pages 83, 84.
- Transcript, vol. 14, page 172.
- Transcript, volume 9 pages 59 to 61.
- Transcript, vol. 9, pages 122 to 125.
- Transcript, vol. 9 pages 170 to 171.
- Transcript, vol. 9, pages 172 to 174.
- Transcript, vol. 9 pages 177 to 180, and 219-220.
- Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235.
- Van de Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014
- Evidence of Dr. Watson following Re-examination; transcript pages 182 – 185;
- Evidence of Dr. Gale, Vol 22, pages 62 to 65.
- Transcript, vol. 1, pages 51, 52, 53.
- Re Reddall and College of Nurses of Ontario (1983) 1983 1947 (ON CA), 42 O.R. (2nd) 412, 416; (Ont. C.A.)
- Nurse’s Notes, Appellant’s Compendium of Exhibits, vol. 2, pages 520 and 521.
- Transcript of Dr. Dionne, vol.3 page 140: The classic teaching is after four minutes of oxygen deprivation there is significant brain damage; vol. 22, pages 118 to 122: In all probability after ten minutes the patient will die.
- Transcript of Dr. Dionne, vol. 8 pages 54 to 58.
