COURT FILE NO.: 573/08
DATE: 20090615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
j. wilson, Lederman AND swinton jj.
B E T W E E N:
DR. BEHNAZ YAZDANFAR
Applicant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Tracey Tremayne-Lloyd and Elyse Sunshine for the Applicant
Lisa Brownstone and Lisa Spiegel for the Respondent
HEARD AT TORONTO: June 3, 2009
the court:
Overview
[1] Dr. Behnaz Yazdanfar seeks to quash the May 26, 2009 interim order (the Order) of the Executive Committee of the College of Physicians and Surgeons of Ontario made pursuant to s. 37 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (HPPC). The Executive Committee concluded that the applicant was likely to expose her patients to harm or risk of harm if she continued her surgical practice without restriction pending the determination of matters referred to the Discipline Committee. The Order imposed terms significantly limiting the applicant’s primary present area of practice – liposuction and breast augmentation surgery – pending the hearing of the disciplinary hearing scheduled to commence in July 2009.
[2] At issue in this application is the reasonableness of the Order and its restrictions. As well, the applicant makes an allegation of reasonable apprehension of bias on the part of the Executive Committee and its investigator.
The factual background
[3] The applicant graduated from the University of Ottawa medical school and began practice as a family physician in 1996.
[4] In 2001 she sought permission from the College to change the scope of her practice so that she could conduct certain cosmetic surgical procedures. From November 2002 to May 2007, she underwent a change of scope of practice process with the College, including on-site assessments by two College-appointed surgical assessors who were plastic surgeons. In that period, she also took extensive training and coursework at her own expense.
[5] The applicant was approved by the College in May 2007 to change her scope of practice to perform liposuction and breast augmentation surgery.
[6] The applicant owns and operates the Toronto Cosmetic Clinic, and she performed cosmetic surgery in this out-patient facility. Others also perform cosmetic surgery procedures at her facility, and she assists other surgeons.
[7] In September 2007, a patient KS died after the applicant had performed a liposuction procedure. Shortly after surgery, KS “crashed” while in the recovery area, apparently 15 minutes after completion of the surgical procedure. There was a delay of approximately one hour and fifteen minutes before steps were taken to transfer the patient to hospital, where she died. The applicant’s position is that the responsibility for monitoring the patient post-operatively is that of the anaesthetist, not the surgeon. It is the position of the College that the responsibility is shared between the surgeon and the anaesthetist.
[8] Following KS’s death, her family complained to the College.
[9] In October 2007, the College received a second complaint with respect to patient FM, alleging inadequate post-operative care after liposuction by the applicant. FM was 66-years old when the large-volume liposuction procedure was performed. Post-operatively, FM experienced serious cardiac symptoms that were not appropriately addressed on an urgent basis. The applicant acknowledges that she erred with respect to the post-operative treatment of this patient. Thankfully, FM was treated and there were no long-term consequences of the delay in receiving treatment.
[10] In August 2008, the College received a third complaint, from patient C, who also complained about the liposuction procedures performed by the applicant. Patient C complained that the applicant had performed liposuction on six areas of her body at one time, and had removed approximately seven litres of fat during the surgery. (In fact, seven litres of combined fat and aspirate, a liquid introduced and removed as part of the liposuction procedure, were removed).
[11] Dr. Fielding, a plastic surgeon, was appointed as an investigator by the College in November 2007. His mandate was to conduct a broad-based investigation into the applicant’s cosmetic surgery practice. Forty randomly chosen files were removed from the applicant’s clinic for review.
[12] The record is clear that the applicant has vigorously resisted the investigation by the College.
[13] The College brought an application before the Superior Court in March 2008 seeking an order requiring the applicant to comply with s. 76 of the HPPC, which prohibits a person under investigation from obstructing a College investigator (the Superior Court Application).
[14] The applicant had refused to allow the nurses who were on duty the day KS died to be interviewed, until the Superior Court Application was initiated. The nurses retained independent counsel and agreed to be questioned in August 2008.
[15] The applicant had refused for over a year to answer questions posed by the College investigator. She answered questions only in January 2009 when required to do so by summons.
[16] Ultimately, Dr. Fielding submitted eight reports to the College. At a meeting of the Executive Committee and the Complaints Committee of the College on April 22, 2009, specified allegations of misconduct and incompetence were referred to the Discipline Committee.
The applicable legislation
[17] Section 37 of the HPPC provides:
- (1) The Executive Committee may, subject to subsection (5), make an interim order directing the Registrar to suspend or impose terms, conditions or limitations on a member’s certificate of registration if,
(a) an allegation is referred to the Discipline Committee; and
(b) it is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.
(2) If an order is made under subsection (1) by the Executive Committee in relation to a matter referred to the Discipline Committee,
(a) the College shall prosecute the matter expeditiously; and
(b) the Discipline Committee shall give precedence to the matter,
(3) An order under subsection (1) continues in force until the matter is disposed of by a panel of the Discipline Committee. (4) In a matter in which an order under subsection (1) was made, an order of a panel of the Discipline Committee directing the Registrar to revoke, suspend or impose conditions on a member’s certificate takes effect immediately despite any appeal.
(5) No order shall be made under subsection (1) with respect to a member by the Executive Committee unless the member has been given,
(a) notice of the Committee’s intention to make the order; and
(b) at least fourteen days to make written submissions to the Committee.
[Emphasis added.]
The Order
[18] The Executive Committee made the s. 37 order on May 26, 2009. In reaching its conclusion, the Committee made numerous observations, outlining its concerns in detail. It noted:
- The allegations, referred to the Discipline Committee, of professional misconduct and incompetence, are serious in nature.
- Dr. Yazdanfar performs surgical procedures which carry significant morbidity and mortality risks.
- Dr. Fielding’s expert opinions (one for the Complaints Committee, regarding Dr.Yazdanfar’s care of three patients, and another as part of the Registrar’s investigation for the Executive Committee) each note that Dr. Yazdanfar’s clinical practice, behaviour or conduct exposes or is likely to expose her patients to harm or injury.
[19] The Committee imposed the following terms in the s. 37 order:
(a) Dr. Yazdanfar is restricted from performing all surgery, except as a surgical assistant (meaning that Dr. Yazdanfar may only assist other surgeons in their care as detailed in paragraph (c)). For greater certainty, all surgery includes, but is not limited to, any cosmetic surgical procedures;
(b) Dr. Yazdanfar is restricted from providing any pre or post-operative care to surgical patients;
(c) Dr. Yazdanfar may practice as a surgical assistant only in a hospital based setting, without providing any pre or post-operative care, and when a member of the College of Physicians and Surgeons of Ontario who is approved by the College is performing the surgery and in attendance; and
(d) Dr.Yazdanfar shall co-operate with unannounced inspections of her office(s), practice(s) and patient charts by a College representative(s) for the purpose of monitoring and enforcing her compliance with the terms of this Order.
The Issues
[20] The applicant raises the following issues:
- Was the decision of the Discipline Committee unreasonable, given the evidence before it?
- Was the decision unreasonable because the Committee failed to consider the least restrictive order?
- Was there a reasonable apprehension of bias on the part of the Executive Committee and its investigator?
The Standard of Review
[21] The decision to issue the s. 37 order is reviewable by this court on a standard of reasonableness. The discretionary decision reached by the Executive Committee engages its expertise and requires deference: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 52-55.
[22] In applying the test of reasonableness we are guided by the principles enunciated by the Supreme Court of Canada in Dunsmuir at para. 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of [page221] justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[23] The applicant challenges whether there is the necessary factual foundation justifying a s. 37 order. The role of the Court in review of such an order is not to re-weigh the evidence, but rather to determine whether there is some evidence before the Committee that is more than mere speculation.
[24] The evidentiary requirement to sustain a s. 37 order is outlined by Chadwick J. in Mohan v. College of Physicians and Surgeons (Ontario) (1991), 81 D.L.R. (4th) 108 (Ont. Ct. (Gen. Div.)). There must be “some evidence” supporting the decision that the s. 37 test is met:
Based upon the evidence before them they could reach the conclusions they did. A court in examining this interim decision by way of judicial review is not in a position to substitute its view for that of the committee where there is some evidence in which they can reach their conclusion.
[25] Sharpe J. (as he then was) in Markman v. College of Physicians and Surgeons of Ontario, unreported decision of the Divisional Court dated January 6, 1998, echoes the concern that it is not the role of this court to weigh the evidence and substitute our opinion for the opinion of the Executive Committee:
The role of this court on judicial review is not to try or retry the case but rather to determine whether there was “some evidence” before the Committee…This requires that there be more than “mere speculation”…
In the end, the applicant asks me to review the expert evidence and substitute my opinion as to its weight for that of the Executive Committee. This task has been assigned by the Act to the Executive Committee and particularly where the matter at issue relates to medical expertise, it would be inappropriate for me to interfere.
[26] The record before the Executive Committee and this Court is voluminous including some 1700 pages of documentation. It is not the role of this court to weigh the evidence.
[27] The applicant relies upon the decision of Esson C.J.S.C. in J.R. v. College of Psychologists of British Colombia (1993), 107 D.L.R. (4th) 335, [1993] B.C.J. No 2335 at para. 19. She argues that the conclusion reached in J.R. that there was no foundation for the interim order applies in this case:
But the record before the court provides no foundation for a finding that such action is necessary to protect the public. The conduct which gave rise to the two treatment related complaints took place more than a decade ago. The member has no history of sexual abuse. The committee has not explained its basis for concluding that drastic conditions were necessary. Obviously, the conditions are designed to preclude the possibility of improper behaviour with female patients but the record provides no basis for concluding there is a real risk of such an occurrence while the complaints are unresolved. That being so, there is no basis upon which the court could properly make a finding that it is necessary in the public interest to impose conditions.
[28] We agree with the approach taken in J.R., but conclude that the case is clearly distinguishable. For reasons to be outlined, we conclude that there is an ample factual foundation for the s. 37 order in this case.
[29] The applicant also relies upon the decision of the Chiropractors Association of Saskatchewan v. Potapinski, 2001 SKQB 194, 33 Admin. L.R. (3d) 234, which applied the three-part test in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, for an interim injunction to an assessment of whether an order equivalent to that provided in s. 37 should be issued. Respectfully, we do not agree that the test for an interim injunction governs the determination whether it was reasonable to issue a s. 37 order.
Analysis
Issue No 1: Was the decision of the Discipline Committee unreasonable, given the evidence before it?
[30] The applicant argues that there is no factual basis to underpin the conclusion of the Executive Committee that the applicant exposes her patients, or is likely to expose her patients to harm or injury. Counsel argues that the Order was based on speculation, not likely harm or risk of harm, and it is unreasonable.
[31] It is the position of the applicant that there should be no order. After taking into account the expert reports filed by the applicant in response to Dr. Fielding’s report, there is no evidence that would reasonably found a s. 37 order. Alternatively, as there are no complaints with respect to the applicant’s surgical techniques for breast augmentation, the applicant should be allowed to continue these procedures pending completion of the disciplinary hearing.
[32] As a result of the review of the applicant’s files, Dr. Fielding identified three areas of concern. First, the files illustrated problems with respect to pre-operative procedures, particularly in the area of informed consent. Second, the files illustrated the large-volume liposuction procedures performed by the applicant on multiple locations on the body of the patient, which in seven cases exceeded any guideline with respect to the amount of fat removed. The breast augmentation procedure used by the applicant is not conventional as she uses both local and a general anaesthetic. Third, the files illustrated safety concerns with respect to immediate and follow-up post-operative care.
[33] In its reasons for decision, the Executive Committee outlined in detail (at pp. 5 to 7) the foundation for their opinion that the conduct of the applicant exposes or is likely to expose her patients to harm or injury. The concerns for patient safety are serious and are supported by the evidence.
[34] There are two guidelines available to guide physicians with respect to the quantity of fat and/or aspirate to be removed during liposuction procedures. A more conservative guideline is that of the American Society of Plastic Surgeons, which recommends that a maximum of five litres of combined fat and aspirate should be removed in a liposuction procedure. A more liberal guideline is posted by the American Society of Cosmetic Surgeons. Their guideline is that the recommended maximum to be removed in each liposuction procedure is five litres of fat alone. The applicant follows the more liberal guideline of the American Society of Cosmetic Surgeons.
[35] Apart from the concerns raised by the three complainants, a review of 40 randomly selected charts from the applicant’s files illustrates serious safety concerns, according to Dr. Fielding. Of the 29 charts reviewed involving liposuction, in the case of seven patients any guideline was clearly exceeded. In one case, a patient had seven litres of just fat removed, and she was then discharged after surgery unaccompanied in a taxi.
[36] The Executive Committee considered the submissions of the applicant, and the various expert reports that were filed on her behalf. We note that three of the reports were from doctors who practise in the applicant’s clinic. One report from an Ontario plastic surgeon was filed anonymously, making it difficult for the Executive Committee to determine what weight to attach to this report. An American plastic surgeon confirmed in his report that he does not utilize the procedure used by the applicant for breast augmentation surgery.
[37] The report filed by the applicant from a cardiologist is clear that in his view, the applicant’s treatment of patient FM was deficient and inappropriate:
There is no doubt that this woman’s ECG changed drastically from her pre-operative normal ECG … the ECG changes were very dramatic and diagnostic…. Either her family physician should have been contacted by this physician … or Dr. Yazdanfar should have insisted to the patient that she go to hospital, and should have arranged for the appropriate referral on the very day she received the abnormal ECG report. I do disagree with arranging for the patient to return several days later for follow up, or leaving it to the patient to contact her family physician or go to the emergency room on her own.
The nature of the ECG changes would demand urgent attention to a new cardiac situation regardless of the minimal symptoms described.
I do believe that the delay in obtaining a cardiologist’s intervention was inappropriate. Once such a new ECG change is seen, and being so recently altered in the clinical context described, it is imperative to immediately obtain cardiac expertise and life-saving intervention, which is most effective at the time the cardiac event occurred.
[38] The Executive Committee in their decision confirmed that they had reviewed the submissions of the applicant, as well as the expert reports. They state:
The Executive Committee considered the detailed submission of Dr. Yazdanfar, dated May 19, 2009, in response to the notice of intent provided under section 37 of the Code. This response included several reports from surgeons, anaesthetists, and a cardiologist, and was provided to Dr. Fielding for his review, dated May 25, 2009.
The Committee is of the view that Dr. Yazdanfar’s submission does not adequately address the risk concerns raised by Dr. Fielding’s reports to the Complaints and Executive Committees. Dr. Yazdanfar’s submission does not allay the Executive Committee’s concerns about the increased risks to Dr. Yazdanfar’s patients as a result of the extensive liposuction procedures carried out by Dr. Yazdanfar (whether by Smartlipo or another liposuction technique), which do not appear to be adequately explained to the patient during the consent process, and Dr. Yazdanfar’s demonstrated failure to respond promptly and effectively to post-operative complications (with a fatal result in the case of [KS]). In terms of the management of post-operative complications, Dr. Yazdanfar’s submission reinforces the Executive Committee’s concern regarding Dr. Yazdanfar’s failure to accept responsibility for the welfare of her patients during the recovery period.
[39] We conclude that the decision of the Executive Committee was reasonable. There is some evidence, beyond mere speculation, that supports a finding that the conduct of the applicant exposes or is likely to expose her patients to harm or injury. The applicant is asking us to reweigh the evidence. That is not our role. There was ample evidence before the Executive Committee supporting its conclusion that there should be restrictions on both breast augmentation surgery and liposuction. The Order was not based on “mere speculation”.
[40] While the applicant suggested that there is some impropriety in members of the Executive Committee also sitting on the Complaints Committee, we reject that submission for the reasons given in College of Physicians and Surgeons v. Au (2006), 214 O.A.C. 243, [2006] O.J. No. 1994 (Div. Ct.) at paras. 31-33.
[41] The applicant relies on the fact that she has performed hundreds of liposuction procedures since the death of KS without incident and during the course of the College’s 20-month investigation. We conclude the length of the investigation is not a factor in determining whether the Order was reasonable.
[42] We conclude, from a review of the file, that the delay until early this year was a result of the applicant’s unwillingness to cooperate with the College investigation. The College pursued the investigation diligently, initiating two court applications to require compliance. The Executive Committee could not make the s. 37 order until the matter was referred to the Discipline Committee. That referral could not take place until the investigation was complete. The delay in this case is not indicative of an absence of concern for patient safety on the part of the College.
Issue No. 2: Was the decision unreasonable because the Committee failed to consider the least restrictive order?
[43] The applicant submits that the Order is unreasonable because the Executive Committee failed to make the least restrictive order. She suggests, for example, in her affidavit that she be allowed to act as a surgical assistant in her clinic or that she be allowed to continue to do breast augmentation surgery and pre- and post-operative care.
[44] The Executive Committee imposed less than a full suspension. According to documents filed with the College, the applicant performs cosmetic procedures other than liposuction and breast augmentation, and she can continue in general practice. The Executive Committee had to balance the need to protect the public against the interests of the applicant.
[45] By the terms of s. 37, the College is required to expedite the hearing of a disciplinary matter when a s. 37 order has been made. The hearing in this matter is scheduled for two weeks in July and two weeks in September 2009.
[46] Section 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides that the Disciplinary Committee may make interim orders during the conduct of the hearing, including adjusting the s. 37 order, if the evidence unfolds such that adjustments are warranted.
[47] The decision of the Executive Committee is within the range of reasonable outcomes, given the concern to protect public safety. Therefore, this ground for judicial review fails.
Issue No. 3: Was there a reasonable apprehension of bias on the part of the Executive Committee and its investigator?
[48] The test for a reasonable apprehension of bias is outlined in College of Physicians and Surgeons of Ontario v. Au, above, at para. 16:
The test for determining whether there is a reasonable apprehension of bias is well established: would an informed person, having regard to all the circumstances and viewing the matter realistically and practically, have a reasonable apprehension of bias on the part of the administrative body? See: Committee for Justice and Liberty v. The National Energy Board, [1978] 1 S.C.R. 369 at 394; Ringrose v. College of Physicians and Surgeons of the Province of Alberta, [1977] 1 S.C.R. 814 at 822.
[49] We note that the Executive Committee was composed of two family doctors, two psychiatrists, and two members of the public.
[50] The Executive Committee scrupulously followed procedures to ensure compliance with all notice periods, gave the applicant a chance to respond, and considered her submissions. There is no evidence supporting a finding of any unfairness during the investigation. This is a difficult case, and the attitude of the applicant, impeding the usual timely investigation, has required the College to be tenacious in completing the investigation. Having regard to the public obligations of the College, this tenacity is not evidence of bias or unfairness.
[51] The applicant suggests that she is caught in the politics of plastic surgeons attempting to block family physicians from conducting lucrative cosmetic procedures. The suggestion that the College would victimize the applicant for political reasons is not supported by any evidence. A reasonable person, well informed, having regard to all of the circumstances, would not have a reasonable apprehension of bias on the part of either the Executive Committee or Dr. Fielding.
Conclusion
[52] For these reasons, the application for judicial review is dismissed. The parties agreed that it would be appropriate for the unsuccessful party to pay costs to the successful party in the amount of $10,500.00 for this application for judicial review and for the previous stay motion. The applicant shall therefore pay costs fixed in the amount of $10,500.00 to the respondent.
jANET wilson J.
LEderman J.
Swinton j.
RELEASED: June 15, 2009
COURT FILE NO.: 573/08
DATE: 20090615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
j. wilson, Lederman and Swinton jj.
B E T W E E N:
DR. BEHNAZ YAZDANFAR
Applicant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
the court
RELEASED: June 15, 2009