CITATION: Taylor v. College of Physicians and Surgeons of Ontario, 2018 ONSC 4562

DIVISIONAL COURT FILE NO.: 413/16

DATE: 20180904

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, HARVISON YOUNG and LOCOCO JJ.

BETWEEN:

ANDREW TAYLOR

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Ronald G. Slaght, Q.C. and Chris Kinnear Hunter, for the Appellant

Amy Block, for the Respondent

HEARD at Toronto: June 11 & 12, 2018

PUBLICATION BAN

PURSUANT TO AN ORDER OF THE DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO UNDER SUBSECTION 45(3) OF THE HEALTH PROFESSIONS PROCEDURAL CODE, NO PERSON SHALL PUBLISH OR BROADCAST THE NAMES OR ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF THE PATIENTS REFERRED TO ORALLY OR IN THE EXHIBITS FILED AT THE HEARING.

REASONS FOR DECISION

HARVISON YOUNG J.

Introduction

[1] The Appellant, Dr. Andrew Taylor, appeals from two decisions of a Panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “Panel”). The first decision upheld allegations of misconduct made by the College of Physicians and Surgeons of Ontario (the “College”) against Dr. Taylor with respect to overbilling patients for laser eye surgery and directing employees to alter medical records in relation to the surgery. The second decision imposed a penalty of revocation of his certificate.

[2] The central question for the Panel was whether the College had proven, on a balance of probabilities, with clear and compelling evidence that the overbilling and failure to refund was intentional and that it was Dr. Taylor who altered or directed the alteration of records. The Panel found that misconduct was proven. Dr. Taylor appeals, submitting that the Panel committed a number of reversible errors that render the decisions on the merits and penalty unreasonable.

Factual Background

[3] Dr. Taylor is an ophthalmologist who operated a laser eye surgery clinic in Niagara Falls. This clinic offered at least two types of laser eye surgery – Planoscan and Zyoptix. Neither procedure was covered by OHIP, and patients paid in advance of their surgery. The Zyoptix procedure was the newer, more intricate procedure and required more resources. Accordingly, patients were charged more for this procedure.

[4] Dr. Taylor first performed the Zyoptix procedure at the clinic in the summer of 2002. From the summer of 2002 until May 2003, over 120 patients paid for the Zyoptix procedure when in fact they received the less expensive Planoscan procedure. The patients were not refunded the difference in price immediately.

[5] It was uncontested before the Panel that the charts of patients who paid for Zyoptix but received Planoscan were altered at the end of the surgical day by a process of cutting, pasting and photocopying. Two witnesses described this alteration as “zipping.”

[6] In the spring of 2003, Ms. Milena Dancuo (“Yerich”), who was then the Office Manager, advised Dr. Taylor that she had heard rumours of a police investigation into overcharging at the clinic. Shortly thereafter, Dr. Taylor ordered that refunds be given to those patients who had received Planoscan but had paid for Zyoptix in 2002. There is no dispute that 53 patients, who had their procedures in 2002, were issued refunds on April 30, 2003.

[7] Dr. Taylor’s evidence was that, upon hearing the rumours of a police investigation, he had all the Zyoptix charts pulled and ordered a reconciliation of the surgical notes and the laser printouts with the financial records to determine whether any patients had paid for Zyoptix but not received it. According to Dr. Taylor, this generated the list of patients to be refunded.

[8] It was also agreed that, in April and May 2003, the clinic laser was blank fired. This created false records of the Zyoptix procedure, including patient information and the original date of surgery. In total, there were 267 blank firings in respect of 136 patients. In almost all of these, the date manually entered for each blank firing corresponded to the patient’s original surgery date. It was also agreed that 144 of these were Zyoptix blank firings in respect of patients who originally received Planoscan.

[9] These records conveyed the false impression that the more expensive surgery had been performed instead of the less expensive procedure.

[10] Dena Perdikis was a laboratory technician at the clinic, until she left in January 2003. She testified that she kept track of the overbilled patients by making a notation on the daily surgical list. She also kept her own list identifying these patients whose charts were to be altered to ensure none were missed, and she gave it to Dr. Taylor’s partners in 2005. This chart was filed as an exhibit at the hearing (“Dena’s List”). With the exception of one patient, the patients identified on Dena’s List were all the patients acknowledged by Dr. Taylor to have been overbilled in 2002.

[11] Ms. Yerich and Ms. Savic, a laser technician, also testified that the list of patients to be issued refunds was generated by the daily surgical lists.

[12] In March 2005, Dr. Taylor’s partners, Drs. Cohen and Wallerstein, met with him concerning allegations that Dr. Taylor had been overcharging patients and altering their charts. In May 2005, refunds were sent to 70 patients who had their procedures between January and April 2003. The College began its investigation in 2008.

[13] The files relating to the patients affected were not available to the College during the investigation or the hearing. Dr. Taylor and his office manager testified that they were being stored in the office safe, which was stolen during a break-in that took place on May 19, 2010. This was disputed evidence, and the Panel found that the missing charts had not been in the safe in May 2010.

[14] The College alleged that Dr. Taylor deliberately and intentionally overbilled patients for a medical procedure that was not performed, and that Dr. Taylor altered or directed the alteration of medical records to make it look as if the patients had received the Zyoptix, rather than the Planoscan, procedure.

[15] Dr. Taylor submitted that the overbilling and failure to refund was inadvertent and caused by a gap in communications between the clinic’s operating room staff and administrative staff. Dr. Taylor also submitted that he did not alter or direct the alteration of records. Rather, he suggested that the office manager had instigated these practices.

The College Decisions

[16] The Panel, following a 12 day hearing, upheld the allegations with reasons dated July 29, 2016: Ontario (College of Physicians and Surgeons of Ontario) v. Taylor, 2016 ONCPSD 22 (the “Misconduct Decision”). Following a penalty hearing, it imposed a penalty of revocation with reasons dated dated April 24, 2017: Ontario (College of Physicians and Surgeons of Ontario) v. Taylor, 2017 ONCPSD 17 (the “Penalty Decision”).

The Misconduct Decision

[17] The Panel summarized its findings in its conclusion. It began by stating that it focused on the following facts:

• Patients were over-billed for procedures that were not performed.

• Over 120 of these patients left the laser clinic after their procedure completely unaware that they were entitled to a refund.

• The charts of these patients were altered at the time of the procedure.

• These two activities – chart alteration by cutting and pasting, and over-billing – were integrally linked. (Misconduct Decision, p. 45).

[18] The Panel found that the chart alterations were “a necessary complement to the over-billing and its associated lack of a refund. One did not and could not occur without the other” (Misconduct Decision, p. 45).

[19] The Panel concluded that the over-billing and the chart alterations were deliberate, and could not have been the result of a communications gap or an administrative error.

[20] The Panel also found that Dr. Taylor’s role was critical:

Evidence points to his role in instructing a small number of staff […] to cut and paste the charts. Dr. Taylor’s testimony that every patient was aware of the difference in costs between the promised Zyoptix and the delivered Planoscan was simply not credible since each of those patients left the clinic without asking for their substantial refund. The Committee also found that the letter accompanying the eventual refunds was not truthful. (Misconduct Decision, p. 45.)

[21] The Panel rejected Dr. Taylor’s submission that the technicians and/or staff created the scheme to alter the charts:

There was no evidence of any motive for the laser technicians and the clinic manager to allegedly create a scheme of chart alteration and over-billing, when the people involved would have had to risk their employment and potential criminal charges without any tangible financial benefit to themselves. The Committee took this into account in assessing the credibility of Ms. Yerich and Ms. Savic. (Misconduct Decision, p. 45).

The Penalty Decision

[22] The Panel imposed the penalty of revocation. Having considered the governing principles, mitigating and aggravating circumstances, and applicable prior cases, it stated that Dr. Taylor’s misconduct was one of premeditated fraud, that it took place in the context of private billing “free from the potential audit protection available with OHIP billing”, and that it compromised his employees by their participation in the chart alterations and subsequent cover-ups, causing them distress (Penalty Decision, p.14). In concluding that revocation was warranted, it placed emphasis on the public’s expectation of honesty and integrity from physicians:

[A]ll dishonest billing is a betrayal of the honesty and integrity expected of the physician in the patient-physician relationship. The public must be confident not only in the clinical skills of a practitioner, but in the honesty of a practitioner to bill correctly for services rendered. (Penalty Decision, p.14).

The Grounds of Appeal

[23] The Appellant argues that neither the Misconduct nor the Penalty decision withstands reasonableness review because neither is justified, transparent and intelligible. In his submission, the Panel’s assessment of and reasoning with respect to the witnesses’ evidence and credibility was faulty and therefore cannot meet this test.

[24] On behalf of the Appellant, Mr. Slaght submits that, as a result of the misapprehension of evidence before it, the Panel effectively reversed the burden of proof and failed to explain how the College’s evidence provided clear, cogent and convincing proof of the allegations against Dr. Taylor. With respect to the penalty of revocation, he submits that the penalty is clearly unfit and unreasonable because Dr. Taylor had no prior discipline history, all patients received refunds prior to the start of the investigation, and the evidence before the penalty hearing reflected well on the Appellant. He also submits that the penalty departed from the range for the misconduct in issue which is a suspension between zero and twelve months.

[25] For the reasons that follow, I would dismiss the appeal with respect to both the finding of misconduct and penalty.

Standard of Review

[26] The parties agree that the standard of review on the issues in this appeal is reasonableness. That conclusion is consistent with previous case law.

Did the Panel Misapprehend the Evidence?

[27] The Appellant submits that the College made a number of submissions that individually and cumulatively amount to the misapprehension of the evidence. He argues that the Panel wrongly or unreasonably:

a. overlooked major gaps and inconsistencies in the evidence of College witnesses;

b. ignored strong evidence of collusion between College witnesses;

c. disregarded material prior inconsistent statements by College witnesses;

d. applied a more lenient level of scrutiny to the evidence of College witnesses; and

e. rejected the evidence of defence witnesses in a cursory way.

[28] On behalf of Dr. Taylor, Mr. Slaght argued that the College’s evidence, considered as a whole, was “fundamentally flawed”, particularly when its witnesses were under cross- examination. Mr. Slaght argued forcefully that the Panel worked “around” rather than “with” the evidence before it, insisting that there was “no evidence” to support the finding of misconduct.

[29] In his submission, the failure of the College to call any of the patients who were overbilled was a critical issue that was ignored. I do not agree. This is a red herring in this case. According to the agreed facts, there is no doubt that there was a scheme to overbill. The only issue was whether Dr. Taylor orchestrated it.

[30] I do not agree that the Panel misapprehended the evidence as submitted by the Appellant. I will address the specific submissions of Mr. Slaght on behalf of the Appellant in the order they were presented.

[31] At the outset, however, it must be remembered that the weighing of the evidence and determination of credibility is at the core of the function of the fact-finding tribunal that hears the evidence, and is entitled to the highest level of deference. Moreover, reviewing courts must consider the reasons and evidence as a whole: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 15; Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3. When the reasons in this case are read as a whole, in light of the evidence before the Panel, it was clear that the evidence against Dr. Taylor was overwhelming. While much of the evidence against him was circumstantial (such as the consideration of motive on the part of the witnesses, including his own), the Panel was careful to assess the credibility of all witnesses, taking into account internal and external consistencies, as well as corroborating factors, such as the forensic examination of the laser hard drive which corroborated Ms. Savic’s earlier statement.

[32] Moreover, the Panel’s reasons are thorough, clear and careful. To use the Dunsmuir language, the decision is justified, transparent and intelligible.

Did the Panel overlook major gaps and inconsistencies in the evidence of College witnesses?

[33] The Appellant submits that the College overlooked major gaps and inconsistencies in the evidence of College witnesses, noting, for example, that Ms. Savic, under cross-examination, admitted that her understanding of “zipping” had not come from Dr. Taylor. He also pointed to Ms. Perdikis’ lack of familiarity with the term.

[34] The College led substantial evidence which pointed to Dr. Taylor as the director of the scheme. Ms. Savic explicitly testified that the Appellant instructed her not to process refunds for patients who were medical doctors or lawyers because they might file a lawsuit. The evidence was supported by Ms. Yerich, who described the same zipping process and the cutting and pasting of charts based on her conversations with the Appellant. Ms. Savic, Ms. Yerich and Ms. Perdikis each consistently described how those defrauded individuals were tracked, and the subsequent steps taken to cut and paste their charts. Ms. Perdikis maintained a contemporaneous list (Dena’s List) which matched the list of patients who received a refund in 2003 (after she had left the Clinic). Ms. Perdikis testified that she was not familiar with the term “zipped”, a difference that was highlighted by Mr. Slaght both before the Panel and before this Court.

[35] The Panel considered the fact that Ms. Perdikis did not use the term “zipping”. It did not attach great weight to this because there was no evidence as to when the term began to be routinely used, and she had left the clinic in January, 2003. However, it did accept the substance of her evidence, which described the same scheme as the other witnesses. The Panel concluded that while Ms. Perdikis did not use the term “zipping”, which Ms. Yerich and Ms. Savic did, she described the same process. While Mr. Slaght argued that this should be seen as significant, the Panel did not agree:

Ms. Perdikis, Ms. Savic, and Ms. Yerich all testified that they were aware that the purpose of the cut-and-and paste process was to alter the charts of those patients who would not be offered a refund of the difference between the more expensive Zyoptix procedure and the less expensive Planoscan procedure. All of the staff who acknowledged their role in the cutting and pasting testified that they were aware that this activity was wrong. (Misconduct Decision, p. 28).

[36] In considering the evidence of the employees, the Panel was alive to its inconsistencies and other frailties. It noted that Ms. Yerich had been involved in a romantic relationship with Dr. Taylor, which had ended in 2005, and that she had continued at the clinic until 2010, having been succeeded as office manager by Ms. Furney.

[37] While the evidence of Ms. Savic and Ms. Perdikis was not clear on whether the instructions to alter charts came directly from Dr. Taylor as opposed to Ms. Yerich, it is clear from their evidence that they both understood that the instructions ultimately came from him. The Panel summarized the evidence on this point as follows:

Ms. Yerich testified that she saw Ms. Perdikis and others, but she could not recall the names of the others, cutting and pasting at the end of the surgical day. Ms. Yerich denied that she had instructed employees about cutting and pasting. Ms. Yerich acknowledged that based on a conversation with Dr. Taylor she understood why cutting and pasting was occurring. She testified that she went along with “zipping” because “I was just doing my job”. Furthermore, Ms. Yerich testified that she would not have questioned the employees about cutting and pasting “if a directive came from our boss”. (Misconduct Decision, p. 28.)

[38] The Panel did not accept Ms. Yerich’s evidence that she did not instruct the staff to alter the charts, although she acknowledged talking about “cutting and pasting” with Dr. Taylor at the time. This was because the evidence established that as she was the office manager, most staff instructions came through her. The Panel also did not accept Dr. Taylor’s evidence that denied any deliberate overbilling, giving any instructions to “cut and paste”, or to blank fire the laser in April and May of 2003 to cover up what had happened earlier.

[39] In short, the Panel was alive to the frailties of certain aspects of the witnesses’ testimony. It reviewed their evidence and inconsistencies in considerable detail. In assessing the evidence, it also considered the fact that well over a decade had passed. As juries are routinely instructed, it is open to finders of fact to accept some, none or all of a given witness’ testimony: see R. v. Tweedle, 2016 ONCA 983. The Panel was clear that it did not accept all of Ms. Yerich’s evidence and gave reasons for this.

[40] The Panel carefully considered Ms. Yerich’s evidence and was entitled to make the findings that it did with respect to the nature of the overbilling operation. Read in the light of the evidence as a whole, these were minor inconsistences. The Panel assessed them in light of the totality of the evidence and its conclusions were amply supported by it. As Ms. Block correctly pointed out on behalf of the College, it is settled law that where a trial judge demonstrates that he or she is alive to inconsistencies but accepts the evidence nonetheless, in the absence of palpable and overriding error, there is no basis for interference: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, paras. 69-70.

Did the Panel ignore strong evidence of collusion between College witnesses?

[41] The Panel also expressly considered and rejected the Appellant’s submissions that Ms. Yerich, Ms. Savic (a cousin of Ms. Yerich) and Ms. Perdikis had colluded and fabricated their evidence against Dr. Taylor. It was open to the Panel to reject this submission. The Panel noted that there were discrepancies of detail as between these witnesses that supported the independence of their evidence and also noted that, had the witnesses colluded, Ms. Perdikis could readily have incorporated the use of the term “zipping” into her evidence, which she did not do (see Misconduct Decision, p. 44).

[42] While Ms. Savic and Ms. Yerich were candid in acknowledging that they spoke with each other, the Panel was satisfied that the College’s evidence was nonetheless reliable. There was no evidence that they discussed their evidence in any detail or that they colluded on the fundamental issue as to whether Dr. Taylor was directing the scheme. The Panel weighed their evidence individually and in light of other evidence before it, and determined it was sufficiently reliable.

[43] The Panel’s reasons also note that the central evidence of these three College witnesses was confirmed by independent evidence. First, as already mentioned, Dena’s List of patients matched (with one exception) the list acknowledged by the Appellant to have received refunds in 2003. Second, Ms. Savic’s and Ms. Yerich’s allegations of blank laser firings were corroborated by forensic evidence that became available only after they testified, including Ms. Savic’s evidence that she deleted records from the laser but not the hard drive.

[44] In light of the totality of the evidence, the Panel was not persuaded that Ms. Yerich and Ms. Savic colluded to suggest that it was the Appellant who directed the scheme to overcharge patients. The Panel did not accept the Appellant’s suggestion at the hearing that Ms. Yerich had been the instigator because she would have had to coerce the laser technicians into the scheme including not only her cousin Ms. Savic, but also Ms. Perdikis. This was unlikely because there was no financial gain for them and they would instead have been risking termination of their employment.

[45] The Panel gave clear reasons, founded on the evidence in the record, before it rejected the argument that the witnesses had colluded. I would reject this basis of appeal.

Did the Panel disregard material prior inconsistent statements by College witnesses?

[46] I do not agree that the Panel disregarded “material prior inconsistent statements” by College witnesses. As I have already mentioned, the Panel considered and rejected the Appellant’s submission that Ms. Perdikis’s failure to use the term “zipping” was significant in light of the fact that she described the same substantive procedure as the other witnesses, and that it was not clear from the evidence at what point the term “zipping” came to be used.

[47] The Appellant also pointed to Ms. Savic’s previous interview with College investigators in which she did not mention her later evidence that the Appellant had asked her to delete records from the laser. However, the deletion of records from the laser hard drive was subsequently confirmed by independent forensic examination. This fact was admitted by the Appellant and filed as an Agreed Statement of Fact. This, as the Panel recognized, lends significant support for her evidence on this point.

[48] Similarly, while Ms. Savic may not have mentioned in her interview with Dr. Taylor’s partners that the Appellant instructed her not to refund doctors or lawyers for fear of a lawsuit, the fact that certain individuals (approximately 10) were likely not refunded was consistent with the independent forensic evidence. That evidence demonstrated that the laser was blank fired in respect of 136 patients while refunds were made for 123.

[49] Clearly, the Panel did not see these differences as “material inconsistencies”. In the circumstances, and given the totality of the record before it, it was not required to.

Did the Panel subject the College scrutiny to a more lenient level of scrutiny?

[50] The Appellant also argues that the Panel applied a more lenient level of scrutiny to the evidence of College witnesses. There is no basis for this submission. The Panel clearly explained throughout its reasons, on each discrete issue, why it accepted the evidence of the College witnesses.

[51] For example, it considered and rejected the Appellant’s submission that the Panel should have made negative credibility findings against Ms. Yerich because she had written cheques to herself from the petty cash account. It considered a number of facts in assessing her credibility. Ms. Yerich did not deny writing the cheques to herself; she was frank in her disclosure about her financial dealings with the company; there were many expenditures when she began working in 2001; and she was new to accounting and to the job. Her evidence was clear that she operated with the assistance and guidance of external accountants, and she was asked in cross-examination to provide the accountant’s name and location. No evidence was called from the accountant to raise concerns with the accounting records of the clinic. In light of the totality of the evidence, it was reasonable for the Panel to conclude that the evidence was not sufficient to undermine Ms. Yerich’s credibility.

Did the Panel reject the evidence of defence witnesses in a cursory way?

[52] Finally, the Appellant submits that the Panel rejected the evidence of defence witnesses in a cursory way. These witnesses were Dr. Taylor, his mother Ms. Taylor, and Ms. Furney, who began working at the Clinic in 2002, beginning to assist with laser surgery in April 2003 and later assuming a management role. By 2007, Ms. Furney was co-managing the office with Ms. Yerich. She became the sole office manager in 2010 after Ms. Yerich left.

[53] Again, I disagree. The Panel carefully considered all the evidence before it. It clearly explained, throughout its reasons, why it rejected the evidence of the defence witnesses. For example, it explained carefully why it rejected Ms. Taylor’s evidence that she had been called to the clinic on a weekend morning in April, 2003 and found Ms. Yerich and Ms. Savic altering charts. It did so in the context of all of the evidence on that issue. Ms. Savic testified that Dr. Taylor instructed her to blank fire the laser using the data of patients who had not been given refunds between January 2003 and April 2003. This round of blank firings took place over a weekend in late April 2003 and extended into the following Monday. Ms. Yerich and Ms. Savic both testified that they were at the clinic, and Ms. Savic testified that Dr. Taylor was present on one of those days. They also testified that Ms. Taylor was present on the Monday to help. Ms. Taylor’s evidence was very different:

Ms. Taylor testified that she was called to the laser clinic on a Sunday in late April 2003. The phone invitation came from either Ms. Yerich or Ms. Savic. Ms. Taylor noted that this Sunday was Serbian Easter. She was told “they wanted to talk to me about something”. When Ms. Taylor arrived at the laser clinic and asked what they were doing, she recalled that Ms. Yerich and Ms. Savic answered that they were “altering charts”. Ms. Taylor testified that she told Ms. Savic and Ms. Yerich what they were doing was illegal, using her nursing background to support her assertion. Ms. Taylor then phoned Dr. Taylor and said, “You had better deal with this. These girls are altering your charts”.

Ms. Taylor testified that she handed the phone to Ms. Yerich so that Dr. Taylor could speak to her. Ms. Taylor left after a total of only two minutes in the laser clinic. She denied taking any printouts with her. Ms. Taylor denied hearing anything further about the incident [references to the evidence omitted]. (Misconduct Decision, p. 34).

[54] Dr. Taylor denied instructing Ms. Savic to blank fire the laser for the purpose of creating false patient records. His evidence was that his mother had reported discovering Ms. Savic and Ms. Yerich blank firing, and testified that he had spoken to Ms. Savic and told her to stop, speaking to her the next day and telling her “this is not the course and direction that we are going to proceed in.” He admitted that he did not investigate what happened to the false printouts.

[55] The Panel found that the accounts of Ms. Yerich and Ms. Savic were more credible than those of Dr. Taylor and his mother, which the Panel found to be implausible. It gave good reasons for doing so. With respect to Ms. Taylor, the Panel considered it odd that she would accept “an unusual and vague invitation on a Sunday to attend the laser clinic from someone she claimed to barely know for an unspecified reason” (Misconduct Decision, p. 36). The Panel also found it extremely unlikely that someone engaged in illegal activity would call in the mother of their employer to witness the activity and then “so casually state this fact to her” (Misconduct Decision, p. 36). In addition, the Panel considered it surprising that, particularly given her status as a registered nurse and mother of a physician who would suffer serious repercussions from having staff alter records, she did not stay to make sure the activity ceased or make any other follow up on what subsequently happened.

[56] With respect to Dr. Taylor’s account of this incident, the Panel also gave good reasons for rejecting it:

The illegal activity his mother described was taking place shortly after the rumours of a police investigation surfaced. Yet by his account, his reaction was initially to discuss the matter over the phone only, with a mere next-day discussion with Ms. Savic.

Furthermore, Dr. Taylor took a lackadaisical approach to the fate of the blank-fired printouts, relying on the assurances of an employee who was, by his own view of events, involved in the deliberate chart alteration that his own mother had recently witnessed. Dr. Taylor’s testimony that he trusted his laser technicians because they were like his right hand is viewed by the Committee as a very weak explanation for his lack of personal attention to the charts, given the seriousness of the situation for him as a professional. Both the rumoured police investigation and his apparent discovery of production of false laser print-outs should have been issues of grave concern to Dr. Taylor. The Committee did not believe Dr. Taylor’s explanation and found that Dr. Taylor’s purported reaction was disproportionate to the seriousness of the situation. (Misconduct Decision, p. 37).

[57] The Committee also noted that the blank firings caused significant expense, in the tens of thousands of dollars, because of the cost of the cards. Although the Committee recognized that Ms. Yerich was in charge of the laser clinic’s finances, one would expect that such a large expenditure over a short period of time would ultimately have been subject to external scrutiny. The Panel concluded that it is more plausible that Dr. Taylor was aware of and approved the blank firings (Misconduct Decision, p. 37). The Panel analysed the evidence carefully on the issue of the blank firings. Having considered the evidence of Ms. Taylor and Dr. Taylor, it also explained why it found Ms. Yerich and Ms. Savic’s evidence to be more credible:

The Committee found that Ms. Yerich’s and Ms. Savic’s testimony regarding the first round of blank firing was more credible than that of Ms. Taylor and Dr. Taylor. Both Ms. Yerich and Ms. Savic were clear that the instructions came from Dr. Taylor. Ms. Savic recalled the approximate number (60) of patient blank firings done on the April 26 to 29, 2003 weekend. That corresponded to the number of refund cheques issued to 63 patients on April 30, 2003. Ms. Savic also testified that the firings continued until Monday morning, at which time Ms. Taylor took the printouts (1-167). (Misconduct Decision, p. 37).

The Committee found the Monday morning scenario more believable, given that Ms. Taylor normally attended the laser clinic on Monday mornings to pick up charts of the patients who had cataract surgery on the preceding Friday.

[58] On the matter of the deletion of computer files, the testimony of Ms. Savic is compatible with the uncontested evidence that records for patient procedures prior to January 2, 2003 were deleted from the laser eye program from the user’s perspective but are still present on the hard drive. Ms. Savic was forthright in admitting that she did not know how to delete information from the hard drive, and indeed this was confirmed by the forensic analysis of the computer (Misconduct Decision, pp. 37-38).

[59] Similarly, the Panel also explained why it rejected Ms. Furney’s evidence. In his submissions, Mr. Slaght argued that the Panel ignored her evidence. The Panel, however, did not ignore it. It considered and rejected the evidence. Ms. Furney had begun to work at the clinic in 2002 initially as a “scrub and flow”, and later as a laser technician. By 2007, she was co-managing the office with Ms. Yerich and remained in that role after Ms. Yerich’s departure in 2010. Along with Dr. Taylor, Ms. Furney denied any knowledge of cutting and pasting or of the term “zipping”, or of the blank firings. The Panel did not accept her evidence on the basis that given that some of the blank firings took place during times that the clinic was in operation, and given her role at the time, it did not believe that she could not have been aware of this. There was ample evidence to ground a finding that Ms. Furney’s evidence was unreliable and the Panel was entitled to make it.

[60] The Panel also rejected Ms. Furney’s evidence that she had assisted Dr. Taylor, around late 2009, in placing the patient charts of those who had been refunded into the office safe for safekeeping. In fact, the Panel found that the charts were not in the safe in May 2010. The Panel’s rejection of Ms. Furney’s evidence was partly because she had denied any knowledge of the relevance of these charts being in the safe, despite the fact that she had been at the staff meeting of 2003 where overbilling was discussed, and despite the fact that by 2010 she was co-manager with Ms. Yerich of the Clinic. The Panel also commented that it was “struck” by the relative tardiness of the report to the police by Ms. Furney, noting that although the break-in occurred on May 19, 2010, the email report to the police was not sent until August 13, 2010. Moreover, a small number of these patient charts were subsequently found in Dr. Taylor’s accountant’s office.

[61] Ms. Yerich testified that on an unspecified date, well before 2010, she, Ms. Savic and Dr. Taylor moved the refunded patient charts in several boxes to various locations. The Committee was unable to make any determinations, however, as to which charts were moved “where, when or why” as a result of Ms. Yerich’s failure to provide any particulars about the alleged movement of these records.

[62] Ms. Yerich also testified that she never saw any patient charts in the safe during the period from December 2009 until May 2010. She, Ms. Furney and Dr. Taylor were the only people who knew the combination, and Ms. Yerich testified that she accessed the safe regularly to obtain petty cash, and that she had accessed the safe on the Friday before the theft. She testified that she never saw patient charts in the office safe.

[63] With respect to Dr. Taylor’s evidence on key issues, the Panel considered his evidence thoroughly and gave clear reasons for rejecting it. I have already considered his evidence on the subject of the blank firings. The Panel had ample grounds for rejecting it and for finding, in light of all of the other evidence, that he had directed the blank firings in April and May 2003 and thus contributed to the alteration of patient charts for the purpose of covering up the overbillings.

[64] Similarly, the Panel rejected Dr. Taylor’s evidence for a number of reasons. It noted that each patient left the clinic without asking for a refund. Its concerns about this evidence were augmented by the contents of Dr. Taylor’s letter to the refunded patients as it was inconsistent with the events that took place. The Panel found that “[i]n no way could the result for these refunds be described as ‘a routine fiscal audit of all of our patient records’”, as the letter had stated: Misconduct Decision, p. 22. Moreover, the Panel found no evidence of any motive for the laser technicians or clinic manager to conduct the chart alteration scheme. The Panel further could not understand why Dr. Taylor did not contact the police when rumours of the investigation arose, nor could it understand why Dr. Taylor entrusted the individuals who he believed were responsible for the administrative errors with the responsibility of reviewing the financial records.

[65] One of the reasons given by the Panel in making its findings with respect to both the College and Dr. Taylor’s evidence was that there was corroboration and circumstantial evidence that supported the College’s case, while it did not find any that supported Dr. Taylor’s evidence on these issues. The record before the Court provides an ample grounding for the Panel’s findings on the evidence before it.

[66] The vast majority of the charts of the patients who were overbilled were not available for the investigation or the hearing. Dr. Taylor and Ms. Furney testified that they had been placed in the office safe and had thus disappeared when the office safe was stolen during a break-in on May 19, 2010. This was an important issue relating to the credibility of both Dr. Taylor and Ms. Furney. The Panel gave detailed and careful reasons for rejecting their evidence on this issue and concluding that the charts were not in the safe in May 2010.

The Blank Firings

[67] The Panel’s conclusion that Dr. Taylor was aware of and directed these blank firings at the time was well supported by the record, reasonable and deserves deference. Contrary to the submissions of Mr. Slaght on behalf of Dr. Taylor, the Panel did not simply label Dr. Taylor’s evidence as “implausible”. Rather, it carefully considered the evidence given by the witnesses as well as the broader context of the agreed statement of facts.

[68] On behalf of Dr. Taylor, Mr. Slaght was very critical of the Panel for dismissing as “implausible” the evidence of Dr. Taylor, who, he submits, was never impeached on any prior inconsistent statements, “nor [whose] evidence was anything but straightforward and direct” (Appellant’s Factum, para. 63). It is important to note that the evidence in this case included significant agreed statements of fact. The context of this matter was that there had been overcharging, refunds given, cutting and pasting of patient files at the time of their procedures, and subsequent blank firings of the laser. The only issue before the Panel was whether it was satisfied that Dr. Taylor had directed the scheme.

[69] The Panel thoroughly considered Ms. Taylor’s evidence that she had been called to the laser clinic on a Sunday in late April 2003 by either Ms. Yerich or Ms. Savic because “they wanted to talk to me about something” and that when she arrived and asked them what they were doing , they told her that they were “altering charts”. She testified that she told them that what they were doing was illegal, left, and called Dr. Taylor, telling him “You had better deal with this. These girls are altering your charts” (Misconduct Decision, p. 34).

[70] Ms. Savic’s and Ms. Yerich’s evidence was that Dr. Taylor was present during the blank firings on at least one of those weekend days in late April 2003 (although Ms. Yerich testified that he was there on all three days while Ms. Savic testified he was there on only one). They also testified that Ms. Taylor was there to help on the Monday and that she took the blank-fired laser printouts with her when she left.

[71] The Panel noted, to begin with, that the Agreed Statement of Facts set out two major bouts of firings: one from April 25-29, 2003 (125 firings for 63 patients) and the other May 17-20, 2003 (113 for 58 patients). It gave detailed reasons for finding the accounts of Ms. Yerich and Ms. Savic more credible than those of Dr. Taylor and Ms. Taylor. As far as Ms. Taylor’s claim that she had been called into the clinic on a weekend by Ms. Savic and Ms. Yerich, the Panel found "it extremely unlikely that someone engaged in illegal activity would call in the mother of their employer, Ms. Taylor, to witness the activity and then so casually state this fact to her” (Misconduct Decision, p. 36). The Panel also considered it odd that, in light “of her professional status as a registered nurse, and her personal status as the mother of a physician who would suffer significant repercussions for having staff altering records” she made no attempt to stay and ensure that that the activity ceased, nor did she follow up on what happened: Misconduct Decision, p. 36.

[72] The Panel also gave ample reasons for rejecting Dr. Taylor’s evidence on this.

[73] The Panel also did not accept that Dr. Taylor knew nothing about the May 2003 round of blank firings. According to the forensic report, several of these occurred in the operating room during weekdays (although the computer report did not indicate time of day). The Panel observed that this meant that there would have been a higher risk of detection by others, including Dr. Taylor himself, who testified that he seldom left the operating room on days when he was performing procedures. Given that the blank firings occurred from May 17-20, the Panel found it hard to believe they would not have been witnessed by either Dr. Taylor or Ms. Furney. Moreover, if Dr. Taylor’s evidence with respect to the April firings was to be believed, these would have been carried out in direct contravention of his earlier orders.

[74] In addition, the Panel noted that Ms. Yerich’s and Ms. Savic’s evidence was that the approximate number of blank firings (60) on the April 26-29 weekend corresponded to the number of refund cheques issued to 63 patients on April 30, 2003, and also Ms. Savic’s evidence that the firings continued until Monday morning when Ms. Taylor took the printouts. The Panel found this scenario more believable, given that Ms. Taylor normally attended at the laser clinic on Monday mornings (Misconduct Decision, p. 38).

Did the Panel reverse the Burden of Proof?

[75] There is no dispute that, as the Panel acknowledged, that the College was required “… to prove the allegations of disgraceful, dishonourable, or unprofessional conduct on a balance of probabilities on the basis of evidence that is clear, convincing and cogent” (Misconduct Decision, p. 13). On behalf of Dr. Taylor, however, Mr. Slaght submitted that the Panel had effectively reversed the burden of proof, arguing that there was no “real” evidence against him. He also submitted that the Panel improperly focused on why it did not believe Dr. Taylor’s evidence on various points without articulating why or how the evidence of the College witnesses provided clear, cogent and convincing testimony. I disagree for a number of reasons.

[76] First, as already discussed, the Panel did carefully consider the evidence of all the witnesses and provided reasons for its findings. It further gave thorough reasons to support its credibility findings. This is not a case such as Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848, 345 O.A.C. 265 (Div. Ct.), where the Panel did not consider significant discrepancies and gaps in the evidence and ignored the Appellant’s evidence on key points. Here, the Panel considered the evidence carefully.

[77] Second, these reasons included the important backdrop of the Agreed Statement of Facts, which established, for example, that there had been overbilling, and Dena’s List, as well as the matching list of patients who were given refunds in 2003 and the forensic evidence from the laser hard drive. It also considered circumstantial evidence such as the financial motive for Dr. Taylor which it found did not exist for his employees.

[78] It is not the case that the Panel simply upheld the allegations because it did not believe Dr. Taylor. In the case of College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599 (Div. Ct.), cited by the Appellant, this Court allowed the doctor’s appeal because the Panel had effectively reversed the burden of proof. There, the Panel upheld the allegations without clearly accepting the complainant’s evidence as to the central allegations. In that case, there was no other evidence. Thus, the Panel appeared to have upheld the allegations as a result of not accepting Dr. Beitel’s evidence.

[79] Here, the Panel made very clear and specific findings on all of the constituent issues, as I have discussed. While it did specifically reject Dr. Taylor’s evidence and that of his witnesses, the case for the College was supported by significant evidence. For example, the College led substantial evidence identifying the Appellant as the director of the scheme. Ms. Savic explicitly testified that the Appellant selected specific patients who were not to be refunded and identified them as patients to be “zipped”. The evidence was supported by Ms. Yerich, who described the same zipping process and the cutting and pasting of charts based on her conversations with the Appellant. Ms. Savic, Ms. Yerich and Ms. Perdikis each described how those defrauded individuals were tracked and subsequent steps were taken to cut and paste their charts. As previously mentioned, Ms. Perdikis also maintained a contemporaneous list (Dena’s List) witch matched the patients who received a refund in 2003 (after she had left the Clinic). As discussed above, there was corroborative evidence (apart from that of the other employees) relating to some key testimony, as well as circumstantial evidence such as motive and the timing of events to which the Panel was clearly alive. The Panel, as I have discussed, carefully considered and accepted most though not all of this evidence.

[80] Mr. Slaght in his submissions focussed on the oral evidence given by the College witnesses at the hearings, but the larger record also included the Agreed Statement of Facts as well as forensic evidence that corroborated key pieces of evidence given by the College witnesses.

[81] In addition, the Panel properly considered circumstantial evidence such as the fact that only Dr. Taylor directly benefited from the additional billings. The Panel also properly considered the misleading nature of the letter that Dr. Taylor sent to the patients who received refunds which stated as follows:

A routine fiscal audit of all our patient records has indicated that, notwithstanding preoperative tests, when the final examination in the operating room occurred, one of the planned processes was deemed to be unessential. Regrettably this change was not reflected in our charge to you. (Misconduct Decision, p. 21).

[82] This letter was misleading to the clients because there was no “routine fiscal audit”. The Panel legitimately considered this as one factor in its assessment of Dr. Taylor’s credibility.

[83] Mr. Slaght submitted that the failure to call any of the patients who had been overbilled was fatal to the College’s case. With respect, that argument is a red herring. These patients had no idea they had been overbilled at the time of their surgeries. That was the point of the overbilling. The fact that there were no complaints from patients was thus unsurprising because they received cheques for over $1000 well after their procedures, in circumstances that did not disclose that there had been deliberate overbilling. The evidence of patients was not necessary to determine who directed the scheme.

[84] As I have also discussed, the Panel gave good reasons for its credibility determinations against Dr. Taylor on the other issues before it, including those relating to the blank firings and the alleged theft of the patient files.

[85] In short, I am satisfied that the Panel did not reverse the burden of proof. It stated the burden accurately at the outset of its reasons and its conclusions are amply supported by the record. Its decision was justified, transparent and intelligible. The finding that Dr. Taylor had “engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional” was reasonable.

The Penalty Decision

Was The Penalty Decision Unreasonable?

[86] Finally, the Appellant submits that the penalty decision is “manifestly unreasonable, entirely disproportionate and harsh” and vindictive because

a. Dr. Taylor had no prior (or subsequent) disciplinary history;

b. There was no element of medical management or practice;

c. The number of patients affected was small;

d. All patients had been refunded before the College investigation began; and

e. The Panel placed undue weight on the fact that the misconduct involved privately billed services.

[87] I do not agree that the penalty imposed was unreasonable in the circumstances.

[88] First, as Ms. Block noted in her submissions on behalf of the College, a penalty decision of the discipline tribunal of a self-regulated profession lies at the heart of its discretion and is owed great deference. The penalty will only be interfered with if there is an error in principle or if the penalty is clearly unfit: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116 (Div. Ct.).

[89] Here, the Panel correctly identified and applied the appropriate penalty principles. Given the nature of the case, the Panel held that public protection and maintaining the public’s confidence in the integrity of the profession are primary considerations and noted that in cases involving deceptive billing, general deterrence is critical (Penalty Decision, p. 6). It also expressly acknowledged the mitigating factors that the Appellant had no prior disciplinary history and that restitution had been made. While it considered the character evidence adduced, it gave that evidence little weight, noting that individuals can be misled with respect to “good character” as “individuals who perpetrate fraud … are usually seen in the community as solid, responsible and law-abiding citizens”: Penalty Decision, p. 5, citing R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 167.

[90] The Panel committed no error in the course of its consideration of the private billing context as an aggravating factor. The nature of this wrong was a fraud on individual members of the public. This Court has recognized that patients may be particularly vulnerable to their physicians in the context of elective, non-OHIP procedures: see Yazdanfar v. College of Physicians and Surgeons of Ontario, 2013 ONSC 6420, 317 O.A.C. 53 (Div. Ct.). The patients are arguably more vulnerable because private services are not subject to the routine fiscal audits to which OHIP services are subject. Moreover, this was only one of the aggravating factors considered by the Panel.

[91] It was also entitled to consider the effect that the scheme had on the staff. The Panel accepted the evidence from Ms. Perdikis and Ms. Savic that their participation in the scheme had caused them considerable distress and had caused Ms. Savic to quit. I see no basis to support the Appellant’s argument that the Panel relied inappropriately on this as a factor. In addition, I see no reason to question the credibility of these witnesses given the well-grounded findings that had already been made in the course of the Misconduct Decision, as well as the record as a whole that is replete with evidence of the stress that these employees suffered.

[92] The Appellant also argued that the Panel improperly held that the passage of time since the alleged fraud in 2002-2003, during which there were no other complaints against Dr. Taylor, was not a mitigating factor. I do not agree.

[93] The Panel appropriately considered the passage of time between the misconduct and the hearing. Relying on R. v. S. (H.), 2014 ONCA 323, 318 O.A.C. 299, at paras. 53-54, the Panel noted that “the only sentencing principles that may be affected by a lapse in time are individual deterrence and rehabilitation” (Penalty Decision, p. 8).

[94] Finally, the Appellant submits that the penalty was not within the appropriate range for similar cases. He argues that the appropriate penalty should have been a suspension of between 0 and 12 months and that in other revocation cases where there has been fraud, there have also been other issues such as incompetence and or addiction.

[95] There is no basis for interfering with the penalty imposed. The Panel considered all the applicable principles and prior penalty cases. It also carefully considered mitigating and aggravating factors. The penalty was within the range, as the range was between no suspension and revocation.

[96] The Appellant in essence takes issue with the manner in which the Panel applied the principles and weighed and applied the mitigating and aggravating factors, which is not a basis for appellate intervention by this court. The Panel also considered a number of cases of fraud, noting that these cases had considered “…the magnitude of the fraud, the duration of the fraud, and many other factors” (Penalty Decision, p. 9). Having considered all of these factors and having taken prior cases into account, it was entitled to impose the penalty of revocation. It also found that the false 2010 reports of the stolen safe constituted an attempt to interfere with the College’s investigation which had started in 2008, and noted that the Appellant’s misconduct included several unique features that were not seen in the precedent cases presented. In summary, it stated that “[h]is misconduct was characterized by premeditation, exploitation, dishonesty and lack of integrity” which, in its view, warranted the most serious of sanctions, revocation (Penalty Decision, p. 14). It was entitled to so conclude. The penalty was reasonable in the circumstances of this case.

Conclusion

[97] The appeal is therefore dismissed. Costs payable by the Appellant to the Respondent in the amount of $15,000, an amount agreed upon by the parties.

Harvison Young J.

I agree _______________________________

Swinton J.

I agree _______________________________

Lococo J.

Released:

CITATION: Taylor v. College of Physicians and Surgeons of Ontario, 2018 ONSC 4562

DIVISIONAL COURT FILE NO.: 413/16

DATE: 20180904

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, HARVISON YOUNG and LOCOCO JJ.

BETWEEN:

ANDREW TAYLOR

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

REASONS FOR JUDGMENT

Released: September 4, 2018