CITATION: Hefzi-Yekta v. Health Professions Appeal and Review Board, 2012 ONSC 6981
DIVISIONAL COURT FILE NO.: 630/10
DATE: 20121206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, ASTON AND LEDERER JJ.
BETWEEN:
MASSOUMEH HEFZI-YEKTA
Applicant
– and –
THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, NEREJA BHOLA AND EMILIA KELLER
Respondents
Ken J. Berger, for the Applicant
Steven G. Bosnick, for the Respondent, Health Professions Appeal and Review Board
Morgana Kellythorne, for the Respondent, The College of Physicians and Surgeons of Ontario
Glynnis P. Burt and Adam Ship, for the Respondents, Nereja Bhola and Emilia Keller
HEARD at Toronto: December 6, 2012
LEDERER J. (ORALLY)
[1] During February 1994, the applicant underwent a caesarean section and gave birth to a child. Prior to the procedure she was given a spinal anaesthetic by the respondent, Dr. Nereja Bhola. After the procedure the applicant complained of a headache which is a known complication associated with the spinal anaesthetic. Dr. Bhola managed her condition conservatively. The headaches were resolved a few days later and she was discharged from the hospital.
[2] Over the following three and a half years, the applicant brought a number of medical concerns to her family doctor, the respondent, Dr. Emilia Keller. These complaints included back pain which the applicant associated with the spinal anaesthetic that had been administrated by Dr. Bhola. Dr. Keller sent the applicant to numerous specialists.
[3] In 2007, thirteen years after she last saw Dr. Bhola and approximately a decade after last seeing Dr. Keller, the applicant sent a letter of complaint to the College of Physicians and Surgeons of Ontario (the “College”) concerning Dr. Bhola, Dr. Keller and two surgeons who had treated her in 2000 – 2001.
[4] The Complaints Committee of the College investigated. It obtained and reviewed all of the medical records it considered relevant, obtained signed witness statements from Dr. Keller, Dr. Bhola and the other respondent physicians and from the applicant’s new family doctor. In its decision, the Complaints Committee found that the applicant had received “conscientious” medical care from all four physicians and took no further action in respect of the complaints.
[5] The applicant invoked her statutory right to have the Health Professions Appeal and Review Board (“HPARB”) review the decision. In written reasons delivered on November 25, 2010, HPARB affirmed the decision of the Committee finding its investigation adequate and its decision reasonable.
[6] This is an application for judicial review of the decision of HPARB. It is made only in respect of Dr. Bhola and Dr. Keller. It does not involve the other two physicians against who complaints were brought and whose actions were considered by the Committee and HPARB.
[7] The applicable standard of review is reasonableness. HPARB is a specialized expert tribunal which oversees a number of self-governing health professions. The statutes involved are closely connected to its function and could be said to be home statutes. HPARB is entitled to curial deference.
[8] The Committee has the primary responsibility for considering complaints from the public and to determine the appropriate action to be taken in respect of each complaint. (See: Health Professions Procedural Code, ss. 2, 3, 10, 25-26, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18).
[9] HPARB has the statutory jurisdiction to review complaint decisions of the Committee. In the review, HPARB considers one or both of the adequacy of the investigation conducted by the Committee and the reasonableness of its decision. HPARB reviewed the substance of the investigation that was carried out by the Committee.
[10] The applicant made reference to the complaints history of the two doctors. Given the legislation as it existed at the time, there was no requirement for the Committee to consider the disposition of any past complaints, although it could have done so. In the interim, the legislation was amended. By the time HPARB came to review the decision of the Committee, the consideration of the disposition of earlier complaints was required. Whether or not the Committee did consider any disposition of past complaints, it is clear that HPARB did so. Notwithstanding its review of the complaints record, HPARB concluded that the investigation was adequate. Our review of the record confirms this to have been a reasonable decision.
[11] In our view, there is nothing to suggest that it was unreasonable for HPARB to conclude that sufficient information was compiled by the Committee and that the investigation was adequate.
[12] HPARB reviewed the treatment offered by Dr. Bhola. The applicant was treated conservatively. Within a few days the headaches she complained of were gone and she was discharged. HPARB noted that Dr. Keller had referred the applicant to a number of specialists. No neurological referral was made because it was not requested. Dr. Keller made all the referrals she believed were indicated by the presentations of the applicant made during the course of care.
[13] We see no basis on which the determinations of HPARB as to the treatment received by the applicant was unreasonable. HPARB found that the treatment provided by Dr. Bhola was within “professional expectations and that Dr. Keller took the complaints of the applicant seriously and investigated them adequately.”
[14] Finally, in this application for judicial review, it was suggested that among the alleged failings of Dr. Bhola was the absence of proper advice to the applicant as to the risks associated with a spinal anaesthetic and that no informed consent was obtained.
[15] It was also said that neither Dr. Bhola nor Dr. Keller accommodated cultural differences presented by the applicant’s life experience. These issues were not referred to in the complaint letter or before HPARB. Having said this, it should be pointed out that the Committee and HPARB both refer to the fact that “an appropriate pre-operative Anaesthetic Consultation was carried out” by a colleague of Dr. Bhola. Even so, the applicant should not be permitted to raise new concerns as part of a judicial review (See: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] S.C.J. No. 61 (S.C.C.)).
[16] The judicial review is dismissed.
COSTS
PARDU J.
[17] I have endorsed the Application Record, “Costs to the respondent physicians fixed at $5,000 if demanded.”
PARDU J.
ASTON J.
LEDERER J.
Date of Reasons for Judgment: December 6, 2012
Date of Release: December 19, 2012
CITATION: Hefzi-Yekta v. Health Professions Appeal and Review Board, 2012 ONSC 6981
DIVISIONAL COURT FILE NO.: 630/10
DATE: 20121206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, ASTON AND LEDERER JJ.
BETWEEN:
MASSOUMEH HEFZI-YEKTA
Applicant
– and –
THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, NEREJA BHOLA AND EMILIA KELLER
Respondents
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: December 6, 2012
Date of Release: December 19, 2012