COURT FILE NO.: 492/05

DATE: 20070330

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, MATLOW and SWINTON JJ.

B E T W E E N:

DR. CIRO ANTHONY ADAMO

Appellant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Eric R. Hoaken and Damienne Lebrun-Reid, for the Appellant

Brenda Doig, for the Respondent

HEARD at Toronto: February 19, 2007

SWINTON J.:

1This is an appeal by Dr. Ciro Anthony Adamo from the Order of the Discipline Committee of the College of Physicians and Surgeons of Ontario dated November 15, 2005. At issue in this appeal is the reasonableness of the Discipline Committee’s finding of professional misconduct and the requirement of a quality advisor as a term of the penalty imposed.

Factual Background

2The appellant obtained his medical degree in 1986 and his specialty in diagnostic radiology in 1997. He currently operates a network of diagnostic imaging clinics located throughout Metropolitan Toronto and operating as Metro Radiology. These clinics are owned by corporations, which, in turn, are owned by the appellant and his wife. All of the licences for the facilities are held directly or indirectly by the appellant and his wife.

3In January, 2003, the College received a complaint from a patient who had undergone a barium enema procedure in which the appellant was involved. The College undertook an investigation, in the course of which the appellant was asked for the names of staff involved in the procedure performed on the complainant. Despite efforts to identify the technologist who performed the procedure, the appellant was unable to do so.

4On June 9, 2004, an allegation of professional misconduct was referred to the Discipline Committee by the Complaints Committee. It was alleged that the appellant engaged in disgraceful, dishonourable or unprofessional conduct in the manner in which he operated certain independent health facilities, including being unable to tell a patient which employees were involved in the patient’s procedure. At the same time, the Executive Committee referred an allegation of incompetence to the Discipline Committee after considering two experts’ reports concerning the care provided by the appellant.

5The Executive Committee of the College directed the Registrar to suspend the appellant’s certificate of registration as of August 12, 2004 in accordance with s. 37 of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”). An agreement was reached on September 1, 2004 to terminate the suspension on the basis that certain conditions would be imposed on the appellant’s certificate of registration. In particular, he was to appoint a quality advisor for his clinics who was acceptable to the College, and he was to provide the College with a copy of the agreement between himself or the clinic and the quality advisor. He was not to practise until he had satisfied these conditions.

6As of October 21, 2004, there were 15 independent health facilities operated by Metro Radiology. The appellant entered into an agreement with Dr. Tam to act as quality advisor for seven clinics and provided the College with a copy of their agreement on September 3, 2004. That same day the College advised that Dr. Tam was not acceptable as a quality advisor.

7The appellant then contacted Dr. Barbara Nitsch, a reporting radiologist at one of his clinics, to discuss her assumption of the role of quality advisor for those clinics where she read films. According to the appellant, Dr. Nitsch agreed to act as quality advisor for a number of the clinics, and he forwarded a copy of the quality advisor agreement to her by fax on September 7, 2004 for review and signature.

8According to the appellant, he had Dr. Nitsch’s authority to attach her electronic signature to the agreement, which listed four clinics: 3170 Lakeshore Boulevard West, 2010 Eglinton Avenue West, 150 Eglinton Avenue East, and 2238 Dundas Street West. He used a modified version of her electronic signature held in Metro Radiology’s computer system for the signature of reports, and he had his staff fax a copy of the agreement dated September 1, 2004 to the College on September 7, 2004. While he usually mailed or couriered copies of important documents that had been faxed, he did not do so on this occasion, even though the fax machine kept no record of transmissions.

9According to the College, the fax was never received. Although the appellant did not hear from the College as to whether Dr. Nitsch was an acceptable quality advisor, he testified that he began to provide diagnostic services seven days after sending the agreement.

10On October 14, 2004, a College investigator attended at Metro Radiology and was advised that Dr. Nitsch was acting as quality advisor. A copy of the agreement was provided to the investigator. The following day, the appellant was advised that the College had not received the fax, and the appellant stopped providing services.

11On October 24, 2004, Dr. Nitsch signed a second quality advisor agreement made effective as of September 1, 2004. It covers three clinics: 2010 Eglinton Avenue West and 150 Eglinton Avenue East in Toronto and 704 Mara Street in Point Edward. The College never accepted Dr. Nitsch as a quality advisor.

12On November 11, 2004, the College suspended the appellant’s certificate of registration on the basis that he had breached the condition upon which the first suspension of his licence had been lifted. On or about November 26, 2004, the Discipline Committee issued an Amended Notice of Hearing, alleging that the appellant had engaged in unprofessional conduct; contravened a term, condition or limitation of his certificate of registration; falsified a record relating to his practice; and was incompetent in the care of his patients.

The Decision of the Discipline Committee

13After a four day hearing, the Discipline Committee issued its decision on September 2, 2005. It found that the appellant’s failure to identify the technologist involved with the procedure on the complainant and his failure to admit his inability did not amount to professional misconduct. Moreover, the allegations of incompetence were not proven. However, the Committee found that the appellant contravened a term, condition or limitation on his certificate of registration and falsified a record relating to his practice. In doing so, he engaged in disgraceful, dishonourable or unprofessional conduct.

14The Committee rejected the appellant’s evidence that he faxed the quality advisor agreement to the College on September 7, 2004. However, it went on to state that even if the agreement had been sent, the appellant knew that he should not have practised, as the College had not accepted Dr. Nitsch as quality advisor. It found that the appellant acted unreasonably in assuming that he had Dr. Nitsch’s approval to use her electronic signature or in assuming that the College had agreed to have her act as quality advisor. It also found that Dr. Nitsch never gave her approval to the use of her electronic signature on the agreement. Even if the appellant had mistakenly believed that he had her agreement to act as quality advisor, the Committee found that he had no authority to sign an agreement on her behalf, and in doing so, he falsified a record relating to his practice (Reasons, p.14).

15The Committee went on to state:

Therefore, the Panel finds that Dr. Adamo did contravene the terms, conditions and limitations on his certificate of registration, and did falsify a record relating to his practice and, therefore, committed those acts of professional misconduct as alleged. The Panel also finds that the contravention and the falsification would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Therefore, the Panel finds the fourth issue above proven to the requisite standard.

16On November 15, 2005, the Discipline Committee issued its decision on penalty, ordering that there be a recorded reprimand, that the appellant be required to take a course on medical ethics, and that he pay costs of $5,000.00. It decided not to impose a suspension, given that the appellant had been prevented from practising for thirteen and a half months, which was longer than the suspension that would normally be imposed. However, it concluded that there should be further terms, conditions and limitations on the appellant’s practice “because of the findings relating to honesty, integrity, and governability” (Reasons of December 13, 2005, p. 3).

17The Committee made reference to the requirement for a quality advisor found in O. Reg. 57/92, made pursuant to the Independent Health Facilities Act, R.S.O. 1990, c. I.3 and ordered that the appellant appoint a quality advisor for his and his family’s clinics who is acceptable to the College. At p. 4 of its Reasons, the Committee stated:

In the interest of public safety, having regard to the Committee’s findings relating to a lack of honesty, integrity and governability, it is the view of the Committee that it should be a term, condition and limitation on Dr. Adamo’s certificate of registration that he not be his own quality advisor in the diagnostic facilities that he and his family own or operate. Dr. Adamo’s facilities are all in a large urban area where a suitable independent quality advisor should be readily available.

18It rejected the submissions of Dr. Adamo’s counsel concerning the indefinite nature of the restriction on the grounds of public safety, stating,

Given the fundamental importance of trust, ethics and honesty in professional practice the Committee conclude that no time limit should be imposed on the duration of this restriction.

Issues on Appeal

19The appellant has appealed to the Divisional Court pursuant to s. 70 of the Regulated Health Professions Act, which permits an appeal on a question of law or fact or both. Both parties agree that the standard of review is reasonableness (Smith v. College of Physicians and Surgeons of Ontario, [2006] O.J. No. 948 (Div.Ct.) at para. 21; Devgan v. College of Physicians and Surgeons of Ontario, 2005 2325 (ON SCDC), [2005] O.J. No. 306 (Div. Ct.) at paras. 36-37).

20A decision will be unreasonable if the decision-maker failed to provide a line of analysis in its reasons that could reasonably lead from the evidence before it to the conclusion reached. The reasons, taken as a whole, must withstand a somewhat probing examination (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paras. 55-56).

21Two issues were raised in the argument of this appeal:

1. Did the Discipline Committee fail to consider all relevant evidence regarding falsification of a record relating to the appellant’s practice?

2. Was the condition requiring an independent quality advisor unreasonable?

Issue No. 1: Did the Discipline Committee err in failing to consider all relevant evidence regarding falsification of a record relating to the appellant’s practice?

22Allegations of professional misconduct must be proved on the basis of evidence that is clear, convincing and cogent (Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447 (Div. Ct.) at p. 485). While the Discipline Committee, in its reasons, did not make an express reference to this standard of proof, it did conclude that the allegations that the appellant contravened a condition of his certificate of registration, falsified a record and engaged in unprofessional conduct were proved to the requisite standard of proof.

23While it would have been preferable for the Committee to refer explicitly to the standard of proof, the failure to do so is not an error justifying appellate intervention. On the evidence before it, the Committee could reasonably conclude that the allegations against the appellant were proved, on the civil standard of a balance of probabilities, on the basis of clear, convincing and cogent evidence.

24The appellant submits that the Committee erred in finding that he falsified a record relating to his practice, because of its erroneous conclusion that the appellant did not have the authority to affix Dr. Nitsch’s electronic signature to the agreement. In order to find someone falsified a record, there must be an intention to mislead the College, which he claims is lacking here (R. v. George Smith Trucking Ltd., [1999] M.J. No. 335 (Q.B.) at para. 45).

25In particular, the appellant submits that the Committee erred because it failed to determine whether the appellant intentionally misled the College. He submits that there was evidence that he had a mistaken belief in Dr. Nitsch’s consent to sign the agreement on her behalf. More particularly, the Committee should have considered the statements made by Dr. Nitsch in cross-examination that there may have been a misunderstanding or miscommunication between her and the appellant about the agreement, and he may have thought that he could append her signature to the agreement. As the findings of falsification and professional misconduct were inter-related, he submits that both should be set aside.

26The appellant’s appeal on the merits cannot succeed for a number of reasons. Leaving aside the finding of falsification, there was ample evidence to support the Committee’s conclusion that the appellant contravened a term, condition or limitation on his certificate of registration and thereby committed professional misconduct.

27It was a condition of the appellant’s certificate that he submit an agreement with the quality advisor to the College, and that the College approve the individual. The Committee found that the appellant knew that the College had never accepted Dr. Nitsch as the quality advisor, and therefore, he should not have practised. Moreover, the Committee found that it was not reasonable for the appellant to assume that he had the approval of the College that she should act as quality advisor. Given the College’s prompt rejection of Dr. Tam as quality advisor, this was a reasonable conclusion for the Committee to reach. Therefore, given the findings of fact, the Committee reasonably – indeed, correctly – concluded that the appellant practised in contravention of a condition on his certificate of registration, as he never had the College’s approval of a quality advisor.

28Furthermore, the condition on his certificate required him to submit an agreement with the quality advisor to the College. Dr. Nitsch testified that she never authorized the appellant to affix her electronic signature to the agreement. She also testified that she had discussed acting as quality advisor for three clinics around September 7, 2004, but she did not accept the role on that date and contemplated further discussions. In her evidence, she stated that she contemplated taking the role on for only a couple of months. However, she also stated in cross-examination that there might have been a miscommunication between her and the appellant about the agreement and the authority to use her signature.

29The agreement that the appellant claimed to have sent to the College related to four clinics, including one on Dundas Street. Dr. Nitsch testified that she made it clear to the appellant on September 7 that she would not be responsible for that clinic, as she did not provide services for it.

30The Committee accepted Dr. Nitsch’s evidence and found that she did not give the appellant permission to attach her electronic signature to the document, which he claims to have faxed to the College. Clearly, the Committee members did not believe the appellant’s statements that he had her permission or thought he had her permission. Therefore, the appellant acted in contravention of a condition of his licence when he submitted a signed agreement to the College, as he had no authority to apply the signature.

31Moreover, even if there was an oral agreement between Dr. Nitsch and the appellant, the agreement sent to the College did not reflect the agreement reached between the parties. Dr. Nitsch testified that she contemplated acting as quality advisor for only three clinics. The Committee accepted her evidence. Therefore, there was a further contravention of the condition, because she had not agreed to act for all four of the clinics set out in the agreement sent to the College.

32While the appellant took issue with the Committee’s finding of a falsification of a record, the Committee made no error in assessing the evidence. At no time did he suggest in his evidence to the Committee that he had a mistaken belief as to the authority to use the signature or the existence of an agreement, as he did before this Court on appeal. His evidence before the Committee was that he had an agreement with Dr. Nitsch to use her signature. The Committee did not accept that evidence.

33The appellant gave conflicting versions of events that evidently called into question his credibility. He first testified that Dr. Nitsch agreed to be Quality Advisor for four clinics on September 7 (Transcript, p. 2-147). He also testified that he thought he had her permission to use her electronic signature (Transcript, p. 2-148). Later he said he thought he had the permission to use it (Transcript, p. 2-198), or he believed he had the agreement to use it (Transcript, pp. 3-66, 3-67). He also stated that he believed he asked her if he could use her electronic signature (Transcript, pp. 3-69, 3-70).

34However, at one point, the appellant also stated that he could choose the quality advisor without obtaining the consent of the other person. This is both contrary to s. 1(6) of the regulation under the Independent Health Facilities Act and the condition on his certificate of registration. The regulation requires the consent of the person who is to act as quality advisor, while the condition required that a copy of the “agreement” between the clinic and the quality advisor be provided to the College.

35The appellant also testified that he had sent Dr. Nitsch a copy of the agreement by fax on September 7 for review and signature, which suggests that he thought he still needed her agreement (Transcript, p. 2-197). However, he gave no explanation as to why no signed copy was obtained. Moreover, he stated that she agreed orally to act as quality advisor for the clinics where she worked, despite the written agreement, that he sent, which included a clinic where she did not work.

36The Committee accepted Dr. Nitsch’s evidence that the appellant did not have her authority to append her electronic signature to the September 7, 2004 document. It is evident that the Committee did not believe the appellant when he said that he had her consent to the terms of the September 7, 2004 agreement and the authority to attach her signature. On the evidence before it, the Committee reasonably concluded that the appellant falsified a record pertaining to his practice when he sent the agreement with her signature to the College.

37The Committee’s decision on the merits was grounded in the evidence before it, and its conclusions were reasonable. Therefore, there is no basis for intervention by this Court.

Issue No. 2: Was the condition requiring an independent quality advisor a reasonable penalty?

38The appellant does not challenge those aspects of the penalty requiring that he receive a recorded reprimand and that he take a course in medical ethics. However, he submits that the requirement of a quality advisor is unreasonable and unduly onerous. The College submits that the condition is a reasonable one, in order to provide an extra layer of vigilance to the appellant’s practice.

39A court sitting on appeal from the decision of a Discipline Committee with respect to penalty must show deference, as the Committee is particularly well suited to determine the seriousness of misconduct and the appropriate sanction. However, if there has been an error in principle or where the punishment clearly does not fit the misconduct, a court may intervene (Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 1979 2045 (ON SC), 26 O.R. (2d) 353 (Div. Ct.) at p. 364).

40A penalty is unreasonable if it does not bear a direct relationship to the wrongdoing found to have been committed (Takahashi, p. 365). In this case, the requirement to appoint a quality advisor is not rationally connected to the findings of misconduct made by the Discipline Committee and is, therefore, unreasonable.

41The clinics operated by Metro Radiology are regulated pursuant to the Independent Health Facilities Act and the regulation made thereunder. Subsection 1(1) of the regulation requires that the licensee of such a facility have a quality advisor. The role of that individual is to advise the operator with respect to the quality and standards of service provided in the facility.

42Subsection 1(3) sets out the qualifications of the quality advisor:

The quality advisor must be a health professional who ordinarily provides insured services in or in connection with the independent health facility and whose training enables him or her to advise the licensee with respect to the quality and standards of services provided in the facility.

43Subsection 1(6) permits the licensee to act as quality advisor on certain conditions:

A licensee who is qualified under subsection (3) may appoint himself or herself as the quality advisor only if there is no other health professional who is qualified to be the quality advisor who will consent to be the quality advisor.

44The role of a quality advisor is to protect the public by advising the licensee of an independent health facility with respect to the quality and standards of services provided in the facility. The Discipline Committee rejected the allegations of incompetence against the appellant, as well as the allegation of professional misconduct because of his failure to identify the technologist. None of the findings of misconduct against the appellant related to any inadequacy in respect of his performance of the quality advisor function.

45Moreover, the Committee had before it a number of Assessment Reports carried out by the College and submitted to the Independent Health Facilities Program pursuant to the Independent Health Facilities Act in respect of the clinics owned by the appellant and his family. None of these reports include any findings or conclusions which suggest that the appellant is incapable of acting as a quality advisor for these clinics. In addition, there was evidence before the Committee that the appellant had taken a number of quality assurance steps and implemented a number of measures to ensure appropriate standards for record keeping.

46The College did not seek any restrictions in respect of the appellant’s ability to act as quality advisor in its submissions to the Committee. Its counsel stated that no prohibition was sought against him working as a quality advisor, as a reading of the Committee’s decision did not suggest that such a prohibition was necessary (Transcript, p. 5-27).

47The Committee rested its decision to require a quality advisor on its findings of lack of honesty, integrity and governability. However, no finding of ungovernability was expressly made. Moreover, the record that the appellant was found to have falsified did not relate to the care of an individual patient.

48The condition is an onerous one, going beyond the requirements of the regulation under the Independent Health Facilities Act. It requires the clinics to obtain the services of a quality advisor agreeable to take on this role and acceptable to the College. No criteria for acceptance are specified, and the condition applies for an indefinite period. A quality advisor must be providing insured services at a clinic. Therefore, if an existing staff member is unwilling to take on this role, or the College does not accept him or her for that role, someone new will have to be hired.

49In other cases where a physician has been found to have falsified records pertaining to his practice, the penalty has been a reprimand and suspension and sometimes a requirement to obtain treatment (Laws (Re), [1999] O.C.P.S.D. No. 3 at para. 40; Bradford (Re), [2002] O.C.P.S.D. No. 40 at para. 8; Miller (Re), [2002] O.C.P.S.D. No. 14 at para. 9).

50The condition requiring a quality advisor is onerous and not rationally connected to the misconduct found. Therefore, that term of the penalty was unreasonable and cannot stand. Pursuant to s. 70(3) of the RHPA, this Court, on an appeal, has the authority of the panel that dealt with the matter and may substitute an appropriate penalty.

51The appellant underwent a lengthy interim suspension of thirteen and a half months, which was longer than the normal suspension for this conduct. In light of that suspension, the goals of specific and general deterrence, rehabilitation and protection of the public are met by a recorded reprimand and the requirement to attend a medical ethics course at his own expense.

Conclusion

52The appeal is allowed in part and the Committee’s order of November 15, 2005 is varied to delete the condition requiring a quality advisor in paragraphs 3(ii) and (iii), and the date for the completion of a medical ethics course is varied from December 31, 2006 to May 31, 2007.

53If the parties cannot agree on costs, they may make written submissions within 21 days of the release of this decision.

Swinton J.

Lane J.

Matlow J.