COURT FILE NO.: 337/03

DATE: 2004-02-11

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

RE: Dr. Ravi Devgan v. College of Physicians and Surgeons of Ontario

BEFORE: Swinton J.

COUNSEL: Joseph Markin for the Appellant/Responding Party Carolyn Silver for the Respondent/Moving Party

HEARD: February 9, 2004

ENDORSEMENT

[1] The College of Physicians and Surgeons moves to dismiss Dr. Devgan’s appeal for failure to comply with interlocutory orders of the Court or to lift the stay of the decision and penalty of the Discipline Committee of the College of Physicians and Surgeons dated April 30, 2003 and June 27, 2003.

[2] The Discipline Committee determined that the appellant committed various acts of professional misconduct, including charging excessive fees for services, having a conflict of interest in that he profited from medical products sold to patients, having made misrepresentations and unsupported claims respecting treatments and having conducted himself in a manner with terminally ill patients that was disgraceful, dishonourable and unprofessional. It subsequently ordered that his licence to practice be revoked. Those decisions are under appeal.

[3] The College moved before Jennings J. to lift the automatic stay of the order of the Discipline Committee. In a decision dated September 25, 2003, he refused to lift the stay, finding that there was an arguable issue on the appeal and that the appellant would suffer irreparable harm if the stay were lifted, because of his inability to earn income. However, with respect to the third element of the test for lifting a stay, the balance of convenience, Jennings J. noted that “The public has a vital interest in being assured that bad doctors do not practise”. Therefore, he refused to lift the stay “so long as the following conditions are complied with”:

(a) the Respondent will file proof of ordering the transcripts within seven days;

(b) the Respondent will not offer Carnivora, TVZ-7, or any like substances to patients diagnosed with cancer;

(c) the Respondent will not enter into any financial arrangements with patients other than for the proper payment of reasonable professional fees;

(d) the Respondent will not sell drugs or therapeutic preparations to his patients at a profit;

(e) the Respondent will co-operate with the College’s employees who may make reasonable inspections of his office, books and records of all kinds to ensure that the conditions are being complied with.

[4] The College now seeks to lift the stay on the grounds that Dr. Devgan has breached two terms of the order of Jennings J., by selling drugs to patients at a profit and by failing to co-operate with College investigators. Dr. Devgan argues that there is no evidence of a breach and any misstatements which he made to the investigators are not sufficient grounds to warrant lifting the stay.

[5] At the outset of the motion, counsel for Dr. Devgan asked that I recuse myself on the grounds of reasonable apprehension of bias, as I had adjourned the hearing scheduled for January 27, 2004 on the condition that the stay be lifted until this motion was determined. I refused this request, on the basis that I had not determined the merits at that time.

[6] The evidence is clear that Dr. Devgan has made a number of false statements to College investigators and in affidavit material before this Court. For example, he told investigator Bryon Brown on November 26, 2003 that he had no cancer patients and any that may attend his office are referred to specialists. He told investigator Steven Wright on December 9, 2003 that he had seen only five patients that day, that he had treated no cancer patients that day, and that one patient, PM, had failed to show for her scheduled appointment. Only three appointments were recorded in his appointment book, one of which was PM.

[7] In fact, despite what Dr. Devgan said to Mr. Brown, he has been treating a number of patients with cancer. He admitted on cross-examination to having five patients who have cancer, and he added three more names in answers to undertakings. Documents in evidence indicate that for at least three patients, the chief presenting complaint is cancer.

[8] Counsel for Dr. Devgan argued that Dr. Devgan was not prohibited from treating patients with cancer. He argued that there is a difference between treating patients with cancer for an illness such as a cold and treating patients for cancer.

[9] However, Dr. Devgan’s answers on cross-examination prove that he was treating at least one patient, PM, for her cancer. Although he had stated in his affidavit of January 21, 2004 that he was not treating PM for cancer, he admitted in cross-examination that she was being treated with an electrode treatment, both for pain control of her cancer and to try to stop the progress of the disease. The following exchange about the treatment is found in the cross-examination at Q. 143:

Q. And that is supposed to assist in treating her cancer, I take it?

A. Well, it is basically to, shall I say, put a stop to the progress. It is nothing curative, it is simply…

Q. Put a stop to the process of cancer?

A. And/or any pain that may arise from it. It basically is pain control.

[10] The records also show that PM was actually a patient on December 9, 2003, despite the earlier statement to Mr. Wright that she had cancelled. As well, the evidence shows that Dr. Devgan treated 18 patients that day, not five, as he told Mr. Wright.

[11] In addition, the December 9 chart for YL shows that she was treated on that day, as well. Dr. Devgan admitted on cross-examination that her chart of November 27, 2003 showed her chief complaint to be cancer of the ovaries, despite Dr. Devgan’s affidavit saying that he did not treat her for cancer.

[12] Dr. Devgan also filed an affidavit dated January 28, 2004 in which he said that GL was not treated on December 9, 2003 and that the individual only dropped in unannounced to pick up a prescription. In fact, there is a chart for that date, indicating chief complaint, functional enquiry and diagnosis, as well as a prescription form. Moreover, the private billing records indicate that GL was charged for treatment. Again, Dr. Devgan tried to mislead the College and this Court with respect to the treatment of patients.

[13] Dr. Devgan has also admitted that his charts do not record every visit by a patient – for example, his billing records show 21 visits by PM between September and November, 2003, while her chart shows five visits.

[14] The College argues that the stay should be lifted because Dr. Devgan has breached the terms of Jennings J.’s order requiring that Dr. Devgan co-operate with the investigators from the College and prohibiting him from selling drugs to patients at a profit.

[15] On cross-examination, Dr. Devgan admitted that he had sold some drugs to patients at a mark-up of 10%. He answered that this was a profit, although he also stated that the 10% was a mark-up to cover the costs of handling and ordering. Given that he was to make no profits on the sale of drugs to patients, according to the order, there appears to be a breach of that order.

[16] More significantly, in the Supplementary Factum of the College, counsel has included a chart documenting Dr. Devgan’s failures to co-operate with College investigators, many of which I have outlined above. In my view, Dr. Devgan’s failure to co-operate is a serious breach of the terms of the order of Jennings J. His lack of co-operation, plus his misleading statements to the investigators and before this Court, lead to the conclusion that the College can not effectively monitor his practice pending the determination of his appeal.

[17] It is of particular concern that he has tried to conceal that he has treated cancer patients. While the order of Jennings J. did not prohibit the treatment of cancer patients, there was clearly a concern that Dr. Devgan might use certain treatments on them or charge them inappropriately, given the reasons for discipline. Therefore, it was important for the College to know whether cancer patients were being treated, whether they were treated for their condition, and the nature of the treatment and the charges.

[18] Not only has Dr. Devgan concealed information or provided misleading information. He has also admitted on cross-examination that he does not chart many of his treatments of patients, which prevents effective monitoring by the College through the inspection of patient charts. Similarly, he does not keep proper records for private billings, which undermines compliance efforts.

[19] In determining whether a stay should be lifted, the third branch of the test is the balance of convenience. Protection of the public interest is an important consideration in a determination of the balance of convenience (College of Physicians and Surgeons v. Porter, [2003] O.J. No. 540 (Div. Ct.) at paragraph 14). At the time Jennings J. made his order, he concluded that the conditions which he imposed would protect the public interest.

[20] In my view, given the lack of co-operation with the College and the misleading information provided to investigators about patients, Dr. Devgan has breached the order of Jennings J. His conduct, plus his charting and billing practices, make effective monitoring by the College unlikely. Therefore, there is a real concern that members of the public will be put at risk of harm if he continues to practise.

[21] While he will suffer a loss of income if the stay is lifted, he has the ability to bring this appeal forward for a hearing. However, he has not acted in a timely manner to date, with the result that the appeal hearing scheduled for February 5, 2004 had to be adjourned on January 23, 2004. No new hearing date has been scheduled. In the circumstances, the balance of convenience favours the protection of the public interest through the lifting of the stay of the College’s decision and penalty of April 30, 2003 and June 27, 2003. Therefore, the motion to lift the stay is granted.

[22] The College also sought an order to dismiss the appeal on the grounds that the appellant had not obeyed interlocutory orders of the Court. In my view, the appropriate order here is to lift the stay, but to leave Dr. Devgan with an opportunity to argue the appeal on the merits.

[23] Therefore, the motion to lift the stay is granted. Costs to the College are fixed at $3,000.00, payable forthwith.

Released: February 11, 2004

Swinton J.