Toronto East General Hospital v. Gopinath, 2014 ONSC 2731

Court File and Parties

CITATION: Toronto East General Hospital v. Gopinath, 2014 ONSC 2731

DIVISIONAL COURT FILE NO.: 120/13

DATE: 20140430

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, DAMBROT AND MACKINNON JJ.

BETWEEN:

TORONTO EAST GENERAL HOSPITAL

Appellant

– and –

DR. RAGHUNANDA GOPINATH

Respondent

John J. Morris, for the Appellant

Matthew Wilton, for the Respondent

HEARD at Toronto: April 30, 2014

Oral Reasons for Judgment

DAMBROT J. (orally)

1The respondent, Dr. Raghunanda Gopinath, has worked as gastroenterologist at Toronto East General Hospital since 1995. He has been engaged in a long-running dispute with the hospital’s management and its anaesthesiology department concerning the hospital’s policy of having dedicated anaesthetists present during endoscopic procedures who have responsibility for the sedation or anaesthesia of patients. It is the respondent’s strongly held belief that the endoscopist should discuss sedation with the patient and make the necessary decision with the input of the patient. In turn, the anaesthetists believe that the respondent unduly interferes with their work. At one point, the Department of Anaesthesia withdrew its services to the respondent, which led to the cancellation of some procedures. The dispute led to a significant tension and conflict in the Endoscopy Unit.

2In April 2007, the respondent applied for renewal of his appointment as medical staff. After several deferrals of its decision, in September 2008, the Hospital’s Medical Advisory Committee, or MAC, recommended that the respondent’s appointment not be renewed, based on the respondent’s alleged disruptive behaviour in the Endoscopy Unit.

3The respondent appealed the MAC’s recommendation to the Hospital Board. The Hospital Board determined that the respondent’s active staff privileges were not to be renewed. The Board decided to delay implementing its decision to give the respondent time to sign an Undertaking and Agreement that would require his participation in the Physician Health Program, or PHP. The respondent refused and appealed to the Health Professions Appeal and Review Board (“Appeal Board”) pursuant to s. 41(5) of the Public Hospitals Act, R.S.O. 1990, c.P.40, as amended.

4The Appeal Board held a hearing de novo. After hearing evidence from a total of twenty-two witnesses, it allowed the appeal. The Appeal Board held that “the problems that existed in the past between [Dr. Gopinath] and the anaesthetists, although not entirely resolved, have been ameliorated to the point where there is a reasonable working relationship”, and that “the problems have been resolved” to the point where [Dr. Gopinath’s] privileges should be renewed without condition.” The dissenting member of the Appeal Board held that the respondent ought to be required to sign the Undertaking and Agreement as a condition of his renewal.

5The Hospital appeals from this decision pursuant to s. 43(1) of the Act, and asks that we restore the decision of the Hospital Board, or, in the alterative, consistent with the dissent in the Appeal Board, require the respondent to sign the undertaking and agreement as a condition of the renewal of its privileges.

6Section 43(3) authorizes an appeal from a decision of the Appeal Board on questions of law or fact or both. It must, of course, be borne in mind that the Appeal Board is a specialized tribunal that is regularly required to make findings with respect to appropriate standards of care in medicine. There is no dispute that the standard of review on this appeal is reasonableness. The Appeal Board’s findings with respect to medical issues and Hospital practice are squarely within its sphere of expertise, and are entitled to considerable deference.

7In this case, the Appeal Board recognized that the respondent’s constant attempts to undermine the practice of the hospital of having anaesthetists in the Endoscopy Unit, which he sincerely disagreed with, have created tension and undermined collegiality in the Unit. The Board also expressed concerns about the respondent’s refusal to attend certain meetings with management. The Board recognized that staff physicians have the responsibility to acknowledge and respect the authority of the hospital administration to deal with issues affecting physicians, which in turn affect patients.

8On the other hand, the Appeal Board recognized that the respondent’s competence went unquestioned, and that since the appointment of a new Chief of Anaesthesiology, the problem with the respondent had been ameliorated to the point where the anaesthetists have a reasonable working relationship with him.

9In the end, being fully aware of the misconduct of the respondent, the Appeal Board reached its conclusion that it would serve no useful purpose at that time to require the respondent to engage in the Physician Health Program, and, as I have already noted, directed his reappointment to the active staff of the Hospital without conditions.

10On this appeal, the Hospital complains that the Board did not properly consider the evidence of the CEO of the Hospital or the evidence of Nurse Ryce, one of the Endoscopy Unit nurses. As a result, the Hospital says the Appeal Board decision is unreasonable because it failed to consider two important categories of interpersonal conflicts, namely between the respondent and the Hospital administration and between the respondent and the nurses. As a result, the Hospital complains that it was unreasonable for the Appeal Board to decline to require that the respondent participate in the PHP.

11In our view, the complaint about the evidence of the CEO is without merit. The Appeal Board summarized his evidence briefly. It is obvious that they agreed with him that Dr. Gopinath ought to have complied with reasonable management requests. The Board made the following observation:

Physicians enjoy a unique status as staff members of hospitals. They are not employees, but rather independent contractors given a substantial amount of security by virtue of the Act. With the status comes certain responsibilities. One such responsibility is acknowledging and respecting the authority of the administration to deal with issues affecting physicians and therefore, their patients.

12However, it is apparent that the Appeal Board did not share the CEO’s concern that problems with the administration would persist since the major source of difficulty between the respondent and the administration had largely resolved.

13Immediately after the preceding comment, the Appeals Board stated:

Notwithstanding the foregoing, we are persuaded that the problems that existed in the past between the appellant and the anaesthetists, although not entirely resolved, have been ameliorated to the point where there is a reasonable working relationship.

14As a result, the Appeal Board found that it would serve no useful purpose at that time to require the respondent to engage the PHP process.

15It is not the role of an appellate court to second guess the weight to be assigned to various items of evidence or the inferences drawn from them.

16With respect to the respondent’s relationship with the nurses, a review of the record makes it plain that this was not a central issue at the hearing before the Appeal Board. While the evidence of Nurse Ryce was not specifically mentioned in the reasons, an examination of her evidence discloses that although she voiced criticisms of Dr. Gopinath, she said that her relationship with him was very professional and that he was usually polite and respectful to her. She indicated a willingness to continue to work with Dr. Gopinath to improve the situation.

17The three Endoscopy Unit nurses that were called as witnesses by the respondent were all highly complementary of his performance in the Unit and his interactions with others. While it was clear that there were two nurses who avoided working with the respondent, the Hospital did not choose to call them as witnesses.

18As a result, it is apparent that the respondent’s relationship with the nurses was not a central issue before the Board. There was nothing in the nurses’ evidence that suggest that the respondent was ungovernable or that his conduct might affect patient safety. There was nothing in the nurses’ evidence that could justify the imposition of a condition requiring that the respondent participate in the PHP.

19Although the Appeal Board did not summarize the evidence of Nurse Ryce or focus on the respondent’s relationship with the nurses in its decision, this does not provide a basis for us to interfere with the Appeal Board’s decision.

20The principle issue for the Appeal Board was to determine if the conduct reflected in Dr. Gopinath’s communication or lack of communication and the concerns about his collegiality led them to conclude that he was ungovernable or that his conduct might affect patient safety. The Appeal Board understood what their task was and carefully reviewed all of the evidence and rendered a decision that satisfies their requirements of justification, transparency and intelligibility, falls within a range of possible acceptable outcomes and is defensible in respect to both the facts and the legal issues.

21The decision was reasonable.

22We are of the view that this appeal must be dismissed.

THEN J.

COSTS

23I have endorsed the Appeal Book as follows, “This appeal is dismissed for oral reasons delivered by Dambrot J. on behalf of the Court. The respondent has submitted a Bill of Costs in the amount of $31, 834.59. The appellant has made no submissions on the issue of costs. In our view, having regard to the nature of the appeal, the issues raised and the preparation required, costs to the respondent in the amount of $30,000 all inclusive is fair and reasonable.”

24If I may just say, first of all, I want to thank both counsel for the quality of their submissions. We have been greatly assisted by both you and I am grateful for that, as are my colleagues. I also wanted to expand a little, if I may, on the theme of “physicians heal thyself”, which perhaps in the circumstances of this appeal is appropriate. It strikes us that both parties have expressed at one time or another a willingness to engage in dialogue in order to resolve their difficulties in a number of areas and it is our fervent hope that you are able somehow to do that in order to enhance, what I think both of you want to accomplish, and that is the best patient care possible. May I say that, at long last we would encourage you to do that. In any event, thank you for your assistance.