Citation: Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422

Court File No. 34/12

Date: 20120424

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

DR. BEHNAZ YAZDANFAR

Moving Party(Appellant)

Mary Thomson, Josh Hanet, Erin Farrell for the Moving Party(Appellant)

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Responding Party(Respondent)

Lisa Brownstone, Lisa Spiegel for the Responding Party (Respondent)

HEARD: April 13, 2012

M.A. SANDERSON J.

Reasons for DECISION

Introduction

[1] The Appellant, Dr. Yazdanfar, moves for a stay of the Penalty Order of the Discipline Committee ("Committee") of the College of Physicians and Surgeons of Ontario ("College") dated December 21, 2011 ("Penalty Order") pending her appeal from the Decision of the Committee dated May 4, 2011 (the "Decision") and the Penalty Order to the Divisional Court.

[2] In the interim, she seeks an Order allowing her to perform and/or supervise non-surgical cosmetic procedures, including injections and fillers, and treatments including laser treatments. She does not seek to perform surgical procedures.

[3] Counsel for the College conceded at the outset that the Penalty Order does not preclude her from performing laser treatments. However, she maintained it does preclude her from performing and supervising other cosmetic procedures including Botox and filler treatments, as they are "controlled" acts (procedures on subcutaneous tissues, i.e., tissue below the dermis) under s. 27(2)2 of the Regulated Health Professions Act, 1991 S.O. 1991, c. 18 (the "Act.")

[4] Section 27(1) of the Act provides that no person shall perform such a controlled act unless (a) he/she is a member authorized by a Health Profession Act to perform it; or (b) its performance has been delegated by a member. Dr. Yazdanfar could only perform or supervise such procedures in her capacity as a doctor if this Court stays the suspension of her medical license mandated by the Penalty Order.

The Facts

[5] Dr. Yazdanfar graduated from medical school in 1994. She completed a residency in family practice in 1996. In 1997, she opened a general and family practice in Toronto. During the early 2000s, she began to shift the focus of her practice to cosmetic medicine. Since 2004, she has practiced cosmetic medicine exclusively/has not practiced any family medicine. From 2007 to the date of the Penalty Order, she practiced at the Toronto Cosmetic Clinic (the "Clinic") that she co-owns with her husband.

[6] In September 2007, Ms. Krista Stryland ("Ms Stryland"), died at North York General Hospital approximately six hours after undergoing a liposuction procedure performed by Dr. Yazdanfar at the Clinic.

[7] Shortly after that death, the College investigated Dr. Yazdanfar's care of Ms Stryland. Three other College investigations followed, the second following a complaint about her care of a 66 year old liposuction patient; the third a broadly-based review of her cosmetic surgery practice; and the fourth following a complaint by another liposuction patient. On April 22, 2009, the College's screening committees referred allegations of professional misconduct and incompetence to the Committee.

[8] On May 26, 2009, pursuant to section 37 of the Health Professions Procedural Code, the Executive Committee of the College made an Interim Order prohibiting her (a) from performing surgery except as a surgical assistant in a hospital setting; and (b) from performing pre- and post-operative care of patients at the Clinic.

[9] On June 23, 2009, after two of her breast augmentation patients lodged complaints, the screening committee referred further allegations of professional misconduct and incompetence to the Committee.

[10] In June 2009, the Divisional Court denied her motion to quash the May 26, 2009 Interim Order. In a supporting affidavit sworn at that time, Dr. Yazdanfar deposed (a) "[t]he only surgical procedures [for which she] was trained and skilled" were "liposuction and breast augmentation;" and (b) her "current practice [was] restricted to these procedures and to assisting surgeons who perform other cosmetic surgery in the Clinic." In other words, she was not performing and supervising the kinds of non-surgical cosmetic procedures she is now seeking to perform and supervise.

[11] As to them, she deposed at that time as follows:

While the Clinic provides a number of cosmetic services, I personally do not provide any such services other than those which I was specifically approved to do (breast augmentation and liposuction) and those that are within my scope of practice as a physician practising cosmetic medicine (pre and post-operative care and surgical assisting for certified surgeons). The remainder of the services provided at the Clinic are provided by the other certified surgeons or the paramedical or aesthetic staff. For instance, while the Clinic does provide aesthetic services such as laser hair removal and endermologie, these are not physician provided services but are services provided in any medical day spa by technicians or aestheticians. Further, for other cosmetic injectable services, like Botox, or Juvederm, these are also services that are not provided by me but by a specially trained registered nurse.

[12] She suggested at that time that were she limited to performing the cosmetic services she now seeks to perform, she would be "reduced" to acting as a "technician," not "practicing medicine." Her affidavit contained the following:

If this Section 37 Order remains in place, I will not be able to practice medicine and will be reduced to action as a technician, since those are the services it would seem that the Executive Committee would have me provide. This is not practicing medicine.

[13] The 68 day Discipline Hearing started on July 13, 2009 and ended on July 22, 2010.

[14] Before the hearing ended, the Committee saw fit on March 4, 2010 to vary the May 2009 Interim Order to allow her to act as a surgical assistant in the Clinic and to perform pre- and post-operative assessments there. Counsel for Dr. Yazdanfar submitted emphatically before me that the Committee must not have considered her to be a danger to the public when acting in that capacity. She also emphasized that before the release of the Penalty Order, Dr. Yazdanfar was allowed to perform and supervise the cosmetic procedures she now seeks to perform, and apparently did so without incident or complaint.

[15] Counsel for the College emphasized that despite the variance of the May 2009 Interim Order on March 4, 2010, Dr. Yazdanfar did not perform pre-operative assessments or work as a surgical assistant. She did provide post-operative care "zero to two" times a month to patients on whom she had operated prior to the May 2009 Interim Order. That did not generate any revenue, as the fees for such appointments had been included in the initial price of surgery.

[16] During the 68 day hearing, the Committee heard evidence from seven medical experts and 43 fact witnesses. Its conclusions contained in 345 pages of Reasons included the following:

(a) With respect to Dr. Yazdanfar's care of Ms Stryland:

(i) She performed "large volume liposuction, a potentially dangerous operation at multiple sites and exceeded acceptable volume standards." While she believed she was trained to deal with the complications, she did not demonstrate the ability to do so.

(ii) She "failed to be alert to post-operative problems"… "ignored or did not believe the abnormal low [blood pressure] readings" (of which she was or should have been aware) and "did not defer the next case." "[S]he should have deferred the next surgery until it was clear that the situation had normalized."

(iii) "Dr. Yazdanfar should have found out exactly what was happening" and did not, despite the abnormally low blood pressure, and despite the facts that the anesthetist and the circulating nurse were going back and forth between the Operating Room ("OR") and Recovery Room, and Ms Stryland was moaning in the Recovery Room;

(iv) She did not leave the OR to check on Ms Stryland in the Recovery Room until 3:17, after the crises had occurred. "Upon finding her patient intubated with three IVs running and lying in bloody fluid, she should have called 911 immediately, recognizing that her clinic was unable to manage the situation." However, she simply performed "a token examination lasting 30 seconds." She "ignored a critical situation," failed to recognize the serious life threatening complications which followed her performance of large volume liposuction, and was "woefully inadequate in dealing with critical post-operative complications."

(v) Dr. Yazdanfar "failed in her duty to the patient by abdicating all responsibility [to her anaesthesiologist], until it was clear the patient was close to dying."

(vi) "Dr. Yazdanfar took no responsibility for the consequences of the surgery she had just performed rather, deflected responsibility to the anaesthesiologist and Recovery Room nurse, even though she took pains to ensure she was the one doctor who had the relationship with the patient."

(b) With respect to her care of the 66 year old liposuction patient:

(vii) The patient entered into surgery "with an understanding that did not reflect the real risks" she faced. Dr. Yazdanfar failed to discuss the risks related to age and volume and demonstrated a dismissive approach towards the incidence and seriousness of complications, and left her patient believing they were not real;

(viii) "Dr. Yazdanfar failed to give proper weight to this patient's age and did a large volume procedure that increased her risk of serious complications." This "grossly violated the safety of the patient" and even exceeded the volume limits in the more liberal guidelines of the American Academy of Cosmetic Surgeons ("AACS") which she purported to follow, even though they are not acceptable in Ontario. This "conduct illustrates a lack of regard for any guidelines and a cavalier attitude to those she professed to follow."

(ix) The patient "was discharged in what appeared to be unacceptable circumstances, in that she was an older patient, leaking bloody fluid, having undergone large volume liposuction at multiple sites involving a significant percentage of her body surface area."

(x) Dr. Yazdanfar discharged this patient "to the care of an elderly husband in an unacceptable state, when she should have been monitored in a medical setting."

(xi) Given her post-operative symptoms, "Dr. Yazdanfar failed to exercise proper judgment and left her patient in an unsafe situation" by failing to advise her to go to the emergency room as soon as Dr. Yazdanfar saw her ECG report.

(c) With respect to patients whose 40 charts the College randomly reviewed, the Committee concluded:

(xii) Dr. Yazdanfar failed to inform several patients of their significant personal risks, which she either did not identify or ignored.

(xiii) She illustrated a "cavalier approach to consequences" by performing liposuction in combination with a tummy tuck surgery on a patient who was morbidly obese and on numerous medications, thereby increasing her risks of complication.

(xiv) In 20 patients, she unsafely removed an excessive volume during liposuction. In several of these cases, Dr. Yazdanfar removed even more than was deemed safe by the guidelines she chose to follow, which the Committee concluded were unacceptable guidelines. [The proper standard of care is a prominent basis of her appeal.]

(xv) She erred in judgment in a "particularly egregious manner" by engaging in a dangerous liposuction procedure that exceeded even the more liberal guidelines she professed to follow, by failing to monitor this patient overnight, and by discharging him to a taxi. This showed a "flagrant disregard for the patient and [was] totally unacceptable practice." [Emphasis added.]

(xvi) On another patient she demonstrated a lack of judgment in ignoring the patient's co‑morbidities, in performing two large volume liposuction procedures that exceeded both the acceptable guidelines and the guidelines she professed to follow, and by discharging him both times by taxi. [Emphasis added.]

(xvii) At times her lack of judgment spanned the pre-operative, operative, and post-operative care she provided (poor candidates for procedure performed in an ambulatory setting, excessive volumes removed, discharged prematurely, at times to a taxi).

(xviii) With respect to two patients who underwent large volume liposuction procedures, Dr. Yazdanfar exhibited an "inexcusable lack of judgment" by discharging these patients into the care of each other, compromising their safety.

(xix) With respect to another patient, Dr. Yazdanfar demonstrated a significant lack of judgment by performing large volume liposuction although the patient had a history of hypertension and asthma. This procedure was "unsafe to do at her facility and she did not monitor him overnight."

(xx) With respect to another patient, Dr. Yazdanfar exceeded acceptable volume guidelines, failed to modify the volume based on this patient's co-morbidities (which included obesity, hypertension and smoking), and failed to monitor the patient overnight.

(xxi) An additional 10 cases "illustrate the pervasive nature of the excessive amounts of fluid removed during liposuction by Dr. Yazdanfar and her failure to monitor overnight."

(d) With respect to her practice of liposuction generally: "Dr. Yazdanfar's most consistent errors were those of judgment. She did not consider the limits of her knowledge and training … when deciding to perform large volume liposuction… in high risk patients … [S]he knew … that liposuction was potentially dangerous, yet she still did not limit the magnitude of the procedures she performed."

[17] The Committee concluded that to expose patients to unacceptable risks for an elective procedure is "inconsistent with acceptable practice."

[18] The Committee released its Penalty Order and Reasons therefor on December 21, 2011. It concluded in its Penalty Decision that:

(a) "Dr. Yazdanfar did not exhibit an understanding of the limits of her training or how this should have influenced the care she provided. She did not accept that her training was limited. She proceeded to do major surgery when she had neither the knowledge nor experience to recognize or properly treat complications. The Committee was shocked to hear her equating her experience with a six year residency program."

(b) Her "lack of knowledge and/or ability and her faulty judgment ended in tragic consequences with the death of Krista Stryland. In failing to observe appropriate limits, she violated her professional responsibility by treating not just one but many patients in an unsafe manner."

(c) She "put the lives of her patients at risk…This pattern of disregard of basic patient safety is troubling for the Committee, as Dr. Yazdanfar could have restrained herself and she did not."

(d) She performed procedures on some patients who were unsuitable candidates…These cases are but examples, but they illustrate errors, both of omission and commission. Dr. Yazdanfar had the opportunity to act in the patients' interest and she did not."

(e) "Dr. Yazdanfar exhibited credulousness and overconfidence."

(f) "The seriousness of Dr. Yazdanfar's conduct is illustrated by her lack of knowledge and judgment."

(g) "Dr. Yazdanfar failed to reflect appropriately on what she was doing following the death of Ms Stryland, as demonstrated by her performing excessive liposuction procedures on other patients several days later."

(h) Dr. Yazdanfar's "lack of insight and understanding is essential in making a finding of incompetence. In this matter, there was no demonstration that Dr. Yazdanfar had acquired any insight to any significant degree."

[19] The Committee noted that the penalty must be proportionate to the seriousness of the findings made. "[P]rotection of the public requires maintenance of the public trust and preserving the integrity of the profession. Inherent to maintaining the public trust is denunciation of serious misconduct and a clear direction that such conduct will not be tolerated." It concluded that "only revocation or a lengthy suspension together with strict terms, conditions and limitations would suffice to meet the proportionality test" to adequately address the seriousness and widespread impact of the findings.

[20] After making "egregious" findings, the Committee ordered a two year suspension of Dr. Yazdanfar's certificate of registration; after the two year total suspension of her privileges, the Committee imposed the following terms, conditions and limitations on her certificate of registration for an indefinite period:

(a) Dr. Yazdanfar is restricted from performing all surgery, except as a surgical assistant in a hospital based setting, provided that an approved member of the College is in attendance and performing the surgery ("all surgery" includes but is not limited to any cosmetic surgical procedures);

(b) Dr. Yazdanfar's practice is limited to that of a surgical assistant, as described under (a);

(c) Dr. Yazdanfar shall co-operate with unannounced inspections of her practice and patient charts, conducted at her own expense, by a College representative(s), for the purpose of monitoring and enforcing her compliance with these terms, conditions and limitations; and

(d) Dr. Yazdanfar shall publish the terms, conditions and limitation imposed on her certificate of registration in any advertisement of her clinic where she is referred to, including on her website, and shall post signage of these restrictions in a form acceptable to the College in the Toronto Cosmetic Clinic or any other clinic owned by her.

No Automatic Stay

[21] The Health Professions Procedural Code provides that in a matter where the Executive Committee makes an Interim Order, an order of a panel of the Discipline Committee directing the Registrar to revoke, suspend, or place terms, conditions and limitations on a member's certificate of registration takes effect immediately despite any appeal. Further, the Code provides that an order made by the Discipline Committee on the grounds of incompetence, directing the Register to revoke, suspend or impose terms, conditions and limitations on a member's certificate takes effect immediately, despite any appeal.

[22] Since Dr. Yazdanfar was subject to the interim order imposed by the Executive Committee on May 26, 2009 and the Committee found that Dr. Yazdanfar was incompetent, the Health Professions Procedural Code trumps any automatic stay under the Statutory Powers Procedure Act, R.S.O. 1990, c. S22. The Penalty Order took effect on December 21, 2011 immediately.

The Law

[23] The parties agree that the test to be applied on a motion to stay an order of the College pending an appeal is the same three-pronged test as is to be applied on an application for an injunction: RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311 at paras. 78-80. In Kooner v College of Physicians and Surgeons of Ontario, [2001] OJ No 5134, 155 OAC 56 ("Kooner"), a motion for a stay, the Divisional Court held at paras. 22-23:

The three-pronged test requires consideration of whether the appeal raises a serious issue; whether the appellant will suffer irreparable harm if the stay is not granted; and whether the balance of convenience favours the imposition of a stay.

Application of the Test

[24] This Court must consider three issues:

A. Does the Appeal raise a Serious Issue?

B. Will Dr. Yazdanfar Suffer Irreparable Harm if the Stay is Not Granted?

C. Does the Balance of Convenience Favour the Granting of a Stay?

A. Does the Appeal Raise a Serious Issue?

[25] Counsel for Dr. Yazdanfar summarized the basis for the Appeal:

(a) the Committee has made no adverse findings with respect to Dr. Yazdanfar's practice as a family physician performing non-surgical cosmetic procedures, yet it has ordered Dr. Yazdanfar's practice to be limited to that of a surgical assistant in a hospital setting. In effect, the Committee has revoked her license to practice medicine. It acknowledged that it will not be easy for Dr. Yazdanfar to find a surgical-assist position in a hospital;

(b) in finding that Dr. Yazdanfar knowingly breached the standard of practice in Ontario with respect to the performance of liposuction, the Committee relied on the terms of an Advisory of the American Society of Plastic Surgery ("ASPS.") In so doing, the Committee concluded that the ASPS Advisory was the standard of practice in the outpatient setting in Ontario despite evidence that such was not followed or endorsed by non- plastic surgeons in Ontario nor indeed by the College itself during the period in question;

(c) the College unfairly and improperly used transcripts from an interview of Dr. Yazdanfar, which was compelled under the Health Professions Procedural Code. The CPSO investigator who conducted that interview later gave evidence as an expert witness at the Hearing on behalf of the CPSO;

(d) the Committee refused to consider information provided by the College during the change in scope of Dr. Yazdanfar's practice, a review which ultimately led to the College approving her change in practice in 2007; and

(e) the Committee erred in concluding she shared responsibility with Dr. Liberman for the post-operative care of Ms Stryland given the finding of another Discipline panel that Dr. Liberman was required to assume full responsibility for the same events.

[26] Counsel for the College conceded that the threshold to establish a serious issue is low. She also conceded that as the grounds raised on appeal are not frivolous or vexatious, Dr. Yazdanfar has met the requirement of the first part of the test.

[27] Nevertheless, counsel for the College submitted that the strength or weakness of the appeal is relevant in deciding whether a stay is appropriate.

[28] With respect to the grounds of appeal set out in paragraph 25(b) above, while counsel for Dr. Yazdanfar submitted that the Committee adopted the ASPS guidelines despite "uncontradicted evidence" that these guidelines were not specifically followed in Ontario, counsel for the College submitted that in fact, all three Ontario surgical experts called at the hearing, including one called by counsel for Dr. Yazdanfar, gave evidence that the American Society of Plastic Surgery guidelines were taught and followed in Ontario. In any event, the Committee found that Dr. Yazdanfar repeatedly exceeded not just the ASPS guidelines, but also those she professed to follow, the AACS guidelines.

[29] With respect to the grounds of appeal set out in paragraph 25(c) above, that Dr. Fielding should not have been permitted to give evidence as an expert, counsel for the College submitted that the interview compelled under the Health Professions Procedural Code was not relied on or referred to by Dr. Fielding in his evidence. At the hearing, counsel for Dr. Yazdanfar did not object to that evidence or submit that it should not be heard. Dr. Fielding was called in reply only because during Dr. Yazdanfar's case there was evidence, contrary to the information provided earlier (including the information obtained from Dr. Yazdanfar, her anaesthetist and the two nurses who worked at the Clinic given under oath during the investigation), that the contemporaneous medical record of Ms Stryland could not be relied on.

[30] With respect to the grounds of appeal set out in paragraph 25(d) above, that the Committee erred in excluding "Quality Assurance" information relating to her College-approved "change in scope" of practice, counsel for the College submitted that the College's approval of Dr. Yazdanfar's "change in scope" of practice related only to breast augmentation. The Committee concluded that her technical performance of breast augmentation met the standard of practice of the profession.

[31] With respect to the grounds of appeal set out in paragraph 25(e) above, counsel for the College submitted that the reasons given by Dr. Liberman's Discipline panel explicitly included the following: "although the bleeding and hypovolemic shock that Ms Stryland suffered had its genesis with the surgical procedure that she underwent, the Committee heard from experts that it is the anaesthesiologist's role to deal with complications arising out of surgery, along with the surgeon." [Emphasis added.] Liberman (Re), [2012] O.C.P.S.D. No. 10 at para. 98.

B. Will Dr. Yazdanfar Suffer Irreparable Harm if the Stay is not Granted?

[32] The parties agree that the burden is on the moving party to demonstrate that he/she/it will suffer irreparable harm should a stay not be granted. Matheson v. College of Physicians and Surgeons of Prince Edward Island [2009] PEIJ No 8, 2009 at para. 23.

[33] Counsel for the College submitted that evidence of irreparable harm must be "clear and not speculative." The party seeking the stay must establish a "real risk of disastrous consequences" if the stay is not granted: Sazant v. College of Physicians and Surgeons at para 11; Noble v. Noble, [2002] O.J. No. 4997 (SCJ) at para.16. Irreparable harm, in this context, means more than financial loss or inconvenience. Otherwise, this threshold would always be met when a physician's licence is revoked or suspended.

Financial Loss

[34] Counsel for Dr. Yazdanfar submitted if this stay is not granted, she will suffer incurable financial loss if she is ultimately successful on her appeal. She will have no opportunity to recoup any of the financial loss she has suffered pending the appeal as a result of the suspension of her Certificate of Registration.

[35] The Regulated Health Professions Act, 1991 S.O. 1991, C. 18 provides as follows:

38. No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, the Advisory Council, a College, a Council, or a member, officer, employee, agent or appointee of the Advisory Council, a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.

[36] Dr. Yazdanfar has deposed that prior to the May 2009 Interim Order, the Clinic profited because she was performing the majority of the surgical procedures at the Clinic. In cross-examination she said it is no longer profitable because of the cost of replacement surgeons.

[37] Counsel for Dr. Yazdanfar also submitted that the Clinic has been paying other physicians to supervise non-surgical cosmetic procedures. She performed some non-surgical cosmetic procedures after June 2010 and before December 2011. She has not worked at all since the Penalty Order was made. She and the Clinic have suffered since the Penalty Order was made, due to her loss of income therefrom and the Clinic's expense in replacing her with other physicians and/or other health professionals authorized to perform such services under the Regulated Health Professions Act. Although Dr. Yazdanfar has asserted that since the Penalty Order was made she has the additional expense of two physicians to take over her work of "supervising" the Clinic's non-surgical cosmetic procedures, she has refused to provide financial documentation to support this claim.

[38] The Clinic has recently been footing legal expenses in excess of $1 million per year.

[39] Despite her allegation that the Clinic has suffered net losses in 2009 and 2010, Dr. Yazdanfar continued to draw an annual salary in those years of at least $80,000, apparently based on her ownership interest.

[40] She deposed that her loss of income adversely affects her husband, daughter and father.

[41] Counsel for Dr. Yazdanfar submitted that if she is absent from the Clinic for an extended period of time, her patient treatment will be interrupted. Patients will have to find other medical practitioners to meet their needs.

[42] Counsel for the College submitted that in order to meet the test, it is Dr. Yazdanfar and not her patients who must suffer irreparable harm. Unlike the situation in Visconti, this is not the case of a specialist or family practitioner with patients who rely on the continued work of their doctor for health reasons. There is no evidence of any continuity of care required for any clinic clientele. All services can be, and have been, provided by other clinic employees.

[43] Counsel for the College submitted that factors apart from the Penalty Order have caused the income of the Clinic to drop since 2007, the year Ms Stryland died. In 2010 and 2012, before the Penalty Order was made, the Clinic suffered a loss pre-dating the Penalty Order.

[44] To the extent the Clinic's losses result from the prohibition against performing surgery, the stay sought would not affect that financial harm. She is not seeking to be permitted to perform surgery pending appeal.

Reputational Harm

[45] Counsel for the College challenged counsel for Dr. Yazdanfar's submission that a failure to grant a stay of the Penalty Order will result in "irreparable professional reputational harm." Dr. Yazdanfar has conceded that the intense media attention directed towards her and the Clinic following the death of Ms Stryland in the fall of 2007, resulted in "severe" damage to her reputation in the medical community and in the general public. She has also asserted that defamatory remarks made by a plastic surgeon following Ms Stryland's death caused her and her clinic damages of $800,000.00. Counsel for the College submitted that the publicity that has already occurred as a result of the death of her patient, and her resulting prohibition from conducting surgery [which was imposed in 2009 (and which she does not ask this Court to set aside)], were the major causes of any damages she has suffered to her reputation.

[46] Counsel for Dr. Yazdanfar submitted that the evidence establishes that beyond financial harm, Dr. Yazdanfar will also suffer reputational harm to her non-surgical injection practice if the stay is not granted.

[47] Counsel for the College submitted there is no evidence that damage to her reputation will be mitigated if she is "reduced to acting as a technician"/permitted to do cosmetic procedures that she characterized earlier as "not practising medicine."

[48] Dr. Yazdanfar's evidence quoted earlier at paragraph 11 was that aesthetic services at her clinic were provided by technicians or aestheticians and injectable services were provided by a registered nurse.

[49] On this motion, the College agreed that sub-paragraph (iv), "the only term of the Penalty Order that could cause significant added harm to her reputation," should be stayed pending the Appeal.

C. The Balance of Convenience

[50] Both parties agreed that Dr. Yazdanfar's rights must be balanced against risk to the public in granting the stay (see Kooner, supra at para 27.)

[51] Counsel for Dr. Yazdanfar submitted there is strong evidence that the public can be adequately protected by the imposition of stringent conditions. She referred to the reasoning in College of Physicians and Surgeons of Ontario v. Porter, [2003] O.J. No. 540 (Div. Ct.) at para. 15:

I see no reason why a stay of the Discipline Committee's order would endanger the public interest or erode public confidence if the stay was based on the same terms. In this way, a conditional stay would accommodate both the public interest and provide some ability to Dr. Porter to reintegrate his practice, pending the disposition of the appeal. There will be no loss of public confidence or risk to the public and Dr. Porter will at least be able to practise on a limited basis if he is able to satisfy the stringent conditions.

[52] Counsel for Dr. Yazdanfar submitted that the Committee's findings relate only to her surgical practice. It did not make any findings regarding her non-surgical cosmetic practice or her qualifications as a family physician. She noted that the Interim Order did not mention her cosmetic practice and in fact she did perform and supervise some cosmetic procedures prior to the Penalty Order without incident.

[53] Counsel for Dr. Yazdanfar submitted that the stay requested does not present a threat to public safety. The Committee did not question Dr. Yazdanfar's qualifications as a family doctor, which would allow her to perform laser and injection treatments.

[54] Counsel for the College submitted the balance of convenience weighs in favour of denying her motion. Dr. Yazdanfar's care and conduct was far from acceptable. The findings against her were very serious. Significant weight should be placed on the public interest in having her removed from practice pending the appeal.

[55] Counsel for the College submitted that after evaluating 68 days of evidence, the Committee has made factual findings squarely within its expertise. It suspended her license completely for two years, then severely restricted her practice indefinitely. Her appeal is weak. It would be contrary to both patient safety and to the maintenance of public confidence in the College's ability to regulate the profession in the public interest were a stay to be granted in all the circumstances here, especially given the Committee's specific mention of the risks associated with allowing Dr. Yazdanfar to take even a limited role at the Clinic.

[56] The Committee held that the public would not be adequately protected were she permitted to surgically assist at a private facility:

Regardless of the proposed oversight, this could provide opportunity for Dr. Yazdanfar to become emboldened with time and to move into a more dominant role. This would be of particular concern if surgery were contemplated at a facility where she had a financial interest. In addition, the Committee notes … that there are no guidelines as to the extent of the role of a surgical assistant.

[57] In prohibiting her from engaging in pre-operative assessments, the Committee reasoned as follows:

Dr. Yazdanfar should not be in a position where her pre‑operative assessment could or would be relied upon. Accepting such a condition would expose the public to risk when making the decision about whether a cosmetic procedure should be done in a freestanding/private facility or a hospital.

[58] The Committee expressed similar concerns in prohibiting Dr. Yazdanfar from engaging in post-operative care, i.e., her inability to appropriately recognize, diagnose and treat both immediate and long term complications of cosmetic surgery. It concluded that "[t]o permit her to [engage in post‑operative care] exposes the public to unnecessary risk and is not supportable."

[59] The Committee concluded:

The public should be assured that those holding a certificate of registration to practice medicine will act with honesty, integrity and within their area of expertise. A failure to do so is a fundamental breach of professional responsibility… The impact of such behaviour on the trusting relationship of the public with the profession collectively, the regulatory body and individual hard working physicians cannot be underestimated. In the Committee's view, Dr. Yazdanfar's failure to practise within the limits of her expertise is simply intolerable.

Application of the Three-Pronged Test

1. Does the Appeal Raise A Serious Issue?

[60] There is no dispute that Part 1 of the test has been met.

2. Will Dr. Yazdanfar Suffer Irreparable Harm if the Stay is not Granted?

[61] Evidence of irreparable harm must be clear, not speculative, and supported by evidence: LaForme J.A., Sazant v. College, March 10, 2011.

[62] I do not accept the argument that a stay order would cause Dr. Yazdanfar irreparable financial harm of a nature to warrant a stay. Prior to May 2009, the Clinic was profitable in part because Dr. Yazdanfar was performing most of the surgical procedures. While it has to pay the hired surgeons to perform cosmetic surgery, including breast augmentation and liposuction, Dr. Yazdanfar is not seeking a stay of the prohibition on surgery. Therefore, any financial losses resulting from that prohibition are irrelevant.

[63] I accept the submission of counsel for the College that in 2009 and 2010, both Dr. Yazdanfar and her husband continued to draw salaries from the Clinic. She continues to have an ownership interest. The Clinic and her opportunity to profit as owner continue, whether or not she practices medicine at it.

[64] She would undoubtedly profit to some extent if the stay were lifted and she were allowed to earn some income from injections and fillers. However, some financial loss alone is insufficient. Irreparable harm in this context means more than financial loss or inconvenience. Otherwise, the threshold would always be met when a physician's license is revoked or suspended: Sazant v. College of Physicians and Surgeons of Ontario at para 11; Law Society v. Igbinosun, [2006] LSDD No. 91 at para. 10.

[65] I do not accept that failure to grant a stay to allow her to perform or supervise injections and apply fillers will significantly adversely affect her professional reputation. On her own evidence, her reputation has already suffered as a result of the adverse media attention already received. Cosmetic non-surgical procedures did not form the basis of her earlier reputation.

[66] In my view, Dr. Yazdanfar has not satisfied this Court that she will suffer irreparable harm of a nature to warrant a stay in all the circumstances here.

Balance of Convenience

[67] The balance of convenience requires this Court to consider whether the granting of this stay is in the public interest. In considering the balance of convenience, this Court must also consider the effect of a stay on public confidence in the health care system generally. Public safety and the public's confidence in the system of medical regulation in the Province are also relevant factors. College of Physicians and Surgeons of Ontario v. Porter, supra at para 14; Re Gillan, [2010] O.C.T.S.C. No. 234-238 at paras. 235-237.

[68] In Sazant v. College of Physicians and Surgeons of Ontario, in an endorsement dated March 10, 2011, LaForme J.A. for the Court of Appeal wrote:

At paragraph 15:

The public interest goes beyond that of public safety and also includes public confidence in the administration of justice and in cases such as this, confidence in the discipline process of the College.

At paragraph 16:

In this case the interests of Dr. Sazant ultimately come down almost exclusively to his loss of income. …

At paragraph 17:

The public confidence in the College's ability to discipline members of the medical profession in all the circumstances of this case weigh against the limited financial interest of Dr. Sazant … The public has a right to feel confident in circumstances such as this will discipline one of its members and our courts will respect its decision.

[69] Most importantly, the evidence here has not satisfied me that public safety would be protected even if Dr. Yazdanfar were limited to performing and/or supervising non-surgical controlled cosmetic procedures.

[70] I do not accept the submission of her counsel that in not limiting her non-surgical cosmetic practice in its Interim Orders, the College was implicitly sanctioning her non-surgical cosmetic practice.

[71] At the time the College investigated her practice [before May 2009], she was not personally performing any of the cosmetic procedures she is now seeking to perform or supervise. At the time the investigation was done, she was not doing any injections or fillers. Therefore, the College had no reason to review her practices in that regard. It did not find her non-cosmetic procedures acceptable and expressly allow her to continue them because they thought they posed little or no reason to the public. It did not review her non-surgical practice because at the time, she had none.

[72] Injections are "controlled" acts under the Regulated Health Professions Act, 1991, S.O. 1991, c 18, s. 27(2) because they involve "performing a procedure on tissue below the dermis, below the surface of a mucous membrane, in or below the surface of the cornea, or in or below the surfaces of the teeth, including the scaling of teeth." Under s. 27(1), only a physician can perform or delegate controlled acts. The College's Policy #8-10, Delegation of Controlled Act, contains the following: "Absent an established physician-patient relationship, the delegation of controlled acts for cosmetic procedures is unacceptable."

[73] It would be unacceptable for a nurse to perform injections at the Clinic without proper supervision: Section 27(1) provides:

27. (1) No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual unless,

(a) the person is a member authorized by a health profession Act to perform the controlled act; or

(b) the performance of the controlled act has been delegated to the person by a member described in clause (a). 1991, c. 18, s. 27 (1); 1998, c. 18, Sched. G, s. 6.

[74] Nurses can only perform controlled cosmetic procedures under the supervision of a doctor.

[75] Medical doctors are required to supervise other personnel authorized to perform cosmetic procedures such as injections and to assess the suitability of such patients to undergo those procedures.

[76] After hearing all the evidence, the Committee concluded that even after her license is restored, she will not be allowed to perform pre- and post-surgical assessments because she cannot be relied upon to exercise sound judgment. She did not adequately explain significant personal risks [which she ignored or did not identify.] In connection with her pre- and post-operative surgical assessments and in her conduct of surgery, the Committee concluded that Dr. Yazdanfar has demonstrated that she either does not understand her limits and/or does not accept reasonable limits. It found she was of the view that more is better and repeatedly pushed the limits. She did not limit the magnitude of the procedures she performed. She failed to practice within the limits of her expertise. In a number of cases she was found to have a lack of knowledge and judgment, a "cavalier approach to consequences" and a "lack of insight" into her deficiencies.

[77] Regarding her lack of insight, the Committee found that:

(a) "Dr. Yazdanfar denied any responsibility for the death of Ms Stryland, who succumbed from complications of liposuction surgery and failed resuscitation. This denial persisted throughout these proceedings to the extent that she claimed that her contribution was nothing more than the fact that she accepted her as a patient in the first place."

(b) "Dr. Yazdanfar testified that her skills in management in regard to liposuction are the equivalent of a six year surgical resident, which is unsupportable. Dr. Yazdanfar demonstrates an unjustifiable overconfidence with respect to her care of patients."

(c) "Dr. Yazdanfar had no hesitation in accepting breast cases which were complicated, and in offering an incomplete range of options."

(d) Dr. Yazdanfar "holds a fixed view that the AACS guidelines are the only ones that are relevant to her practice, yet she exceeded these guidelines repeatedly… She failed to see beyond the AACS, determined she was right, and refused to seek or respect the volume limits accepted as the standard of practice in Ontario."

[78] Given the findings, I cannot be confident that the assessments that would form a part of the supervision of controlled acts or the conduct of the procedures themselves (if done personally), would not constitute a risk to the public: Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1057 (Div. Ct.) at para. 69; Kumra v. College of Physicians and Surgeons of Ontario, [2011] O.J. No. 2458 (Div. Ct.), para. 9; Seidman v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 5098 (Div. Ct.) paras. 11, 15-17.

[79] "Controlled" injections require the involvement of a fully licensed physician to ensure public safety. Patients must be suitable candidates for the procedure and must be fully apprised of the risks involved.

[80] In these circumstances, I am not satisfied that the balance of convenience favours Dr. Yazdanfar.

[81] I am not satisfied the public would not be put at risk were a stay Order to be granted.

Disposition

[82] The request for a stay is denied. The motion is dismissed.

[83] If counsel cannot agree on costs, they may make written submissions not exceeding 5 pages each, on or before May 18, 2012.

M.A. SANDERSON

Released: April 24, 2012