COURT FILE NO.: 459/07

DATE: 20081124

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KENT, LEDERMAN AND SWINTON JJ.

B E T W E E N:

MARK ISAAC GREENWALD, MD.

Applicant

• and -

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and MARINA MINIACI

Respondents

Michael Fraleigh and Ross MacDougall, for the Applicant

David Jacobs, for the Respondent, Health Professions Appeal and Review Board

HEARD at Toronto: November 24, 2008

LEDERMAN J.: (Orally)

1This is an application for judicial review by Mark Isaac Greenwald, MD, of the decision of the Health Professions Appeal and Review Board, dated April 23, 2007.

2The Board’s decision confirmed, as reasonable, the decision of the Complaints Committee of the College of Physicians and Surgeons of Ontario, that the applicant’s manner of assessing the activities of daily living and body function of the female complainant was inappropriate.

3The complainant had filed a complaint with the College. This arose from a medical examination that the applicant conducted at the request of an insurance company processing the complainant’s claim for long-term disability on the basis of fibromyalgia.

4In question was the applicant’s conduct in requiring the complainant to disrobe in front of him alone while he watched and failing to make a gown available. The Complaints Committee issued a written caution to the applicant with respect to the appropriate methods for assessing activities of daily living and appreciating the need for gowning at certain times. It held that such assessments should be able to be performed without having the patient undress in front of him and while having gowns readily available, even if the gown had to be removed during the examination.

5On review, the Board found that the Complaints Committee’s decision was reasonable.

6Counsel for the parties agree that the standard of review is reasonableness. We are of the same view. The Board is a specialized expert tribunal overseeing a number of self-governing health professions and in this case appropriate standards of professional skill and conduct. It is entitled to curial deference.

7The applicant submitted that the Board and Complaints Committee’s decisions were unreasonable for the following reasons:

(i) That there was no evidence to support the conclusion of the Complaints Committee that the applicant’s examination of the patient was inappropriate;

(ii) That the Complaints Committee’s decision was based on credibility findings which it had no jurisdiction to make, and

(iii) That the Complaints Committee’s decision was tantamount to a reprimand which is outside its jurisdiction to make.

8With respect to the first ground, the applicant submits that the only evidence before the Complaints Committee and the Board was the medical literature which the applicant submitted in support of his position that it is not only appropriate but critical to assessing a patient’s activities of daily living and body function, to have the patient undress in front of him in order to make observations. The applicant further submits that the College has not suggested any other methodology for conducting this type of examination.

9The medical literature relied on by the applicant is not unequivocal that this is the only way to examine a patient complaining of fibromyalgia, nor does it take into account the obvious sensitivities of requiring a female patient to disrobe in front of a male physician without the presence of a third party and the availability of a gown.

10The issue before the Complaints Committee and the Board was not whether the patient had to disrobe to be properly examined but the concern was over the manner in which the disrobing occurred.

11The College of Physicians and Surgeons has set out sixteen suggestions to help physicians avoid complaints of sexual misconduct and prevent boundary violations. They include, showing sensitivity in respect for the patient’s privacy and comfort at all times and in particular it admonishes: do not watch a patient dress or undress and provide privacy and appropriate covers and gowning. Common sense would suggest that it is prudent to follow these guidelines even on an examination for assessing daily living activities of a person said to be suffering from fibromyalgia.

12As to the second ground of this application, no issues of credibility arose in respect of the manner in which the disrobing occurred. There is no dispute that at the request of the applicant, the complainant undressed in front of him without a third party present or a gown readily available. The Complaints Committee’s concern was a general one over the sensitivity that arises whenever a female patient is asked to disrobe in front of a male physician. This does not depend on any credibility issue in this case.

13As to the third ground raised by the applicant, a caution is one of the statutory powers given to the Complaints Committee. It is not punitive in nature; it is advisory or remedial in warning about border line conduct which is short of professional misconduct but which puts the physician and patients at risk. There is no finding of professional misconduct and the caution does not appear in any public record. We find that the caution administered here was not a reprimand.

14In all, we are of the view, that the Complaints Committee and the Board acted reasonably in making its findings and issuing a written caution.

15The applicant also raised the issue of a two year delay in the Board rendering its decision after a review of the Complaints Committee’s decision was brought before it. Counsel for the Board conceded that such delay was regrettable and unacceptable. However, apart from the fact of the delay, there has been no real or significant prejudice to the applicant. The applicant did not suggest in his affidavit that the delay has caused him any prejudice or stigma. Therefore, there has been no deprivation of any meaningful fairness to the applicant caused by the delay.

16For these reasons, the application is therefore dismissed. The Board does not seek costs and no costs are ordered.

KENT J.

17The Application Record is endorsed as follows: “The application is dismissed for reasons delivered orally. No order as to costs”.

LEDERMAN J.

KENT J.

SWINTON J.

Date of Reasons for Judgment: November 24, 2008

Date of Release: November 28, 2008

COURT FILE NO.: 459/07

DATE: 20081124

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT