Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131
CITATION: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131
DIVISIONAL COURT FILE NO.: DC 471/18
DATE: 20180830
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, LOW, and MYERS JJ.
BETWEEN:
Robert Joel Fingerote
Applicant
– and –
The College of Physicians and Surgeons of Ontario Respondent
Respondent
COUNSEL:
Jaan E. Lilles and Brendan F. Morrison, lawyers for the Applicant
Peter Wardle, lawyer for the Respondent
HEARD at Toronto: August 27, 2018
REASONS FOR JUDGMENT
F.L. Myers J.
Background
[1] This application for judicial review was heard on an expedited basis in light of the urgency of the issues. At the end of the hearing, the panel recessed and then advised the parties that the application was allowed for reasons to be delivered. These are the reasons for the court’s decision.
[2] On July 10, 2018, the Inquiry, Complaints, and Reports Committee of the College of Physicians and Surgeons of Ontario made an interim order that imposed conditions on Dr. Fingerote’s entitlement to practise medicine pending a formal hearing into a complaint before the Discipline Committee that had been made against him by a patient.
[3] In its interim order, the Committee imposed the following restrictions on Dr. Fingerote pending the discipline hearing some months from now:
Practice Monitor and Patient Log (i) Dr. Fingerote shall not engage in any professional encounters, in person or otherwise (the "Professional Encounter") with patients of any age in any jurisdiction, unless the Professional Encounter takes place in the continuous presence of and under the continuous observation of a monitor who is a regulated health professional acceptable to the College (the "Practice Monitor"), and unless the other requirements provided in this Order are fulfilled. For further clarity, Dr. Fingerote may not be alone with any patient, for any length of time, during any Professional Encounter, whether or not the parent or guardian of the patient is also present;
(ii) At all times, Dr. Fingerote shall ensure that the Practice Monitor shall:
(a) Provide reports (as described in the Practice Monitor's undertaking) to the College on at least a monthly basis;
(b) Remain present at all times during all Professional Encounters with all patients;
(c) Carefully observe all of Dr. Fingerote's Professional Encounters with patients including, but not limited to, physical and internal examinations. It is Dr. Fingerote's obligation to ensure that the Practice Monitor's view of all of his Professional Encounters with patients, including physical and internal examinations, is unobstructed at all times;
(d) Refrain from performing other functions, except those required in the Practice Monitor's undertaking attached as Appendix "B", while observing Dr. Fingerote in all his Professional Encounters with patients;
(e) Maintain a log of all Professional Encounters with patients in the form attached as Appendix "C" (the "Log");
(f) Initial all corresponding entries in the records of patients noted in the Log; and
(g) Submit the original Log to the College on a monthly basis.
(iii) Dr. Fingerote shall maintain a copy of the Log at all times, and shall make it available to the College upon request;
Notification of Practice Locations (iv) Dr. Fingerote shall inform the College of each and every location that he practices or has privileges including, but not limited to, hospital(s), clinic(s) and office(s), in any jurisdiction (collectively the "Practice Location(s)"), within five (5) days of this Order. Going forward, he shall inform the College of any and all new Practice Locations within five (5) days of commencing practice at that location;
Posting a Sign and Translations (v) Dr. Fingerote shall post a sign in all waiting rooms, examination rooms and consulting rooms, in all of his Practice Locations, in a clearly visible and secure location, in the form attached hereto as Appendix "D" that states: "Dr. Fingerote must not have professional encounters, in person or otherwise, with patients, of any age, unless in the continuous presence of and under the continuous observation of a practice monitor acceptable to the College of Physicians and Surgeons of Ontario. Dr. Fingerote must not be alone during any professional encounter with any patient. Further information may be found on the College website at www.cpso.on.ca.";
(vi) Dr. Fingerote shall post a certified translation(s) in any language(s) in which he provides services, of the sign described in section (v) above, in all waiting rooms, examination rooms and consulting rooms, in all of his Practice Locations, in a clearly visible and secure location, in the form attached hereto as Appendix "D";
(vii) Dr. Fingerote shall provide the certified translation(s) described in (vi) above to the College within30 days of the date of this Order;
Notifying Patients
(viii) Dr. Fingerote shall ensure that each patient with whom he has a Professional Encounter is directly notified, prior to the Professional Encom1ter, of the details of the restriction described in section (i), above;
(ix) With respect to patients that are scheduled at least seven (7) days in advance, Dr. Fingerote shall ensure that each patient is directly notified, within seven (7) days after the appointment is scheduled, of the details of the restriction described in section (i) above;
Monitoring (x) Dr. Fingerote shall consent to the College making appropriate enquiries of the Ontario Health Insurance Plan and/or any person or institution who may have relevant information in order for the College to monitor Dr. Fingerote's compliance with the terms of this Order and shall promptly sign such consents as may be necessary for the College to obtain information from these persons or institutions;
(xi) Dr. Fingerote shall submit to, and not interfere with, unannounced inspections of his Practice Locations and to inspections of patient charts by tl1e College and to any other activity the College deems necessary in order to monitor Dr. Fingerote's compliance with the terms of this Order;
(xii) Dr. Fingerote shall consent to the College providing any and all information to the Practice Monitor that the College deems necessary or desirable in order to assist the Practice Monitor in fulfilling their Undertaking and in order to monitor Dr. Fingerote's compliance with the terms of this Order;
(xiii) Dr. Fingerote shall consent to all Practice Monitors disclosing to the College, and to one another, any information relevant to this Order, relevant to the terms of the Practice Monitor's Undertaking and/irrelevant for the purposes of monitoring Dr. Fingerote's compliance with this Order; and
(xiv) Dr. Fingerote shall consent to the College providing the Order to any Chief(s) of Staff, or a colleague with similar responsibilities, at any Practice Location where he practices or has privileges ("Chief(s) of Staff'), and to provide said Chief(s) of Staff with any information the College has that led to this Order and/or any information arising from the monitoring of his compliance with this Order.
The Issue
[4] The Committee imposed the interim order pursuant to its authority under s. 25.4 (1) of the Health Professions Procedural Code, 1991, c 18, Sched 2, Schedule B, that says:
Interim suspension
25.4 (1) The Inquiries, Complaints and Reports Committee may, subject to subsections (2) and (6), at any time following the receipt of a complaint or following the appointment of an investigator pursuant to subsection 75 (1) or (2), make an interim order directing the Registrar to suspend, or to impose terms, conditions or limitations on, a member’s certificate of registration if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury. [Emphasis added.]
[5] Dr. Fingerote argues that this court has previously decided that an interim order under s. 25.4 (1) can only be made when the Committee has received evidence that a doctor is likely to expose his patients to harm or injury pending further inquiry by the College or the hearing of discipline charges.
[6] The College accepts that the law on this point is set out in Liberman v College of Physicians and Surgeons, 2010 ONSC 337 in which Jennings J. held:
[34] The Committee is clearly entitled to form its own opinion but it must do so on “some evidence”, not evidence of below standard conduct, but evidence of probable harm. Here, I can find none. In coming to that conclusion I am not weighing evidence, I am searching for its existence. Without evidence of the probable exposure to harm, the Committee is merely speculating based in essence on one incident. That it cannot do
[7] The applicability of this approach was affirmed by this court more recently in relation to the 2017 amendments to the statutory scheme under which the Committee currently operates. In Morzaria v College of Physicians and Surgeons of Ontario, 2017 ONSC 1940, Nordheimer J. (as he then was) wrote:
[45] The [Committee] bears the burden of establishing that an order under s. 37(1) is justified based on the requirement set out in the subsection, that is, that “the conduct of the member exposes or is likely to expose his or her patients to harm or injury”. In order for the [Committee] to reach that conclusion, there must be some evidence that an interim order under s. 37(1) is necessary to address that exposure. Otherwise, there is no foundation established by which that statutory authority may be invoked. My colleagues appear to accept that evidence is a necessary prerequisite to making the order. In any event, it is clearly set out in Liberman v. College of Physicians and Surgeons of Ontario, 2010 ONSC 337, [2010] O.J. No. 227 (Div. Ct.) where Jennings J. said, at para. 34:
The Committee is clearly entitled to form its own opinion but it must do so on “some evidence”, not evidence of below standard conduct, but evidence of probable harm.
[46] It is accepted that an interim order, of the type made here, ought to be the least restrictive order possible to protect the public. That approach accords with the reality, that exists at the time that the interim order is made, namely, that all that the [Committee] has are unproven allegations.[^1] [Emphasis added.]
[8] The College argues that the Committee was entitled to infer a risk of future harm to patients based solely on its finding that the patient’s allegations that form the substance of the upcoming discipline hearing against Dr. Fingerote, if true, would amount to sexual abuse.
The Facts
[9] The Committee set out the facts before it as follows:
In February and May 2017, gastroenterologist/internist Dr. Fingerote saw a female patient, Patient A, upon referral from her family physician. Patient A complained to the College, alleging that Dr. Fingerote had her remove clothing, stared at her breasts, remarked “Nice,” and improperly rested his hands, wrists and lower arm against her breasts several times while listening to her chest with a stethoscope. The College also received a mandatory report from Patient A’s family physician, to whom she had reported the same allegations.
[10] The Committee had before it a transcript of an interview of the patient, correspondence from two of the patient’s friends indicating that she had made complaints to them shortly after her appointments with Dr. Fingerote, the doctor’s chart, and his written submissions.
[11] Dr. Fingerote denies that he said the word “Nice” in relation to the patient’s breasts or at all. In her interview, the patient confirmed that she was not looking at the doctor when he said the word. She therefore cannot confirm where he was looking. The patient says that during her second appointment with the doctor, he had her lie down and expose her bra. He then listened to her heart with his stethoscope at which time he rested his forearm or wrist on her breasts six or seven times while listening. She said as well that he was staring intently and inappropriately at her breasts while doing the examination.
[12] The doctor’s chart shows that he listened to the patient’s heart during her first appointment; not the second appointment. He explained that the patient was obese and that his technique for listening to her heart with a stethoscope may well have resulted in incidental contact with her breasts. He says that when he listens to heart sounds he fixes his gaze or stares at nothing in particular as he is listening intently.
The Committee’s Findings
[13] There was no issue as to the appropriateness of the doctor’s decision to conduct an auscultation (listen to the patient’s heart sounds) as part of his examination of this patient.
[14] In response to the doctor’s submission that his forearm or wrist may have had incidental contact with the patient’s breasts during a proper auscultation, the Committee found:
In the Committee’s view, there is no clinical reason for a physician conducting such an examination to rest his or her hand or arm anywhere on the patient’s body.
[15] There was no evidence before the Committee as to the proper method of conducting an auscultation. In Ontario (College of Physicians and Surgeons of Ontario) v OPQ, 2016 ONCPSD 23, the Discipline Committee of the College decided the opposite on expert evidence:
In the Committee’s view, the expert evidence, which was accepted by the Committee, indicated that the single-head stethoscope that was employed by Dr. OPQ, requires that the physician holds the stethoscope’s head between his first and second finger with the flat of his hand touching the patient’s skin. In the Committee’s view, the physician’s hand would therefore rest on the patient’s chest or breast when the physician is auscultating for breath sounds…Such touching is clinically appropriate to the examination, and does not constitute sexual abuse. [Emphasis added.]
[16] In its analysis, the Committee noted that at this early stage in a proceeding, it generally cannot assess credibility or engage in testing evidence. It properly said that it must consider “the entire investigative record, and the physician’s submissions and balance all this information in reaching a decision.”
[17] The Committee determined that the allegations were serious. They included allegations of sexual abuse under the guise of medical examinations. They were serious enough to have been referred to a discipline hearing. Patients examined alone may be vulnerable. The Committee held that the acts alleged, commenting, staring, and touching a breast, if proven, “would constitute sexual abuse.”
[18] On that basis, the Committee concluded that Dr. Fingerote was likely to expose his patients to harm or injury. It recognized that the evidence was contested and therefore, rather than suspending the doctor’s license, the Committee chose to impose the practice conditions set out in full above.
Analysis
[19] Mr. Wardle argued that the Committee was entitled to infer from the nature of the allegations and the fact that, if true, the allegations could amount to sexual abuse, that Dr. Fingerote is likely to expose his patients to a risk of harm or injury. While the Committee was not able to assess credibility at this stage, it appropriately accounted for the fact that the evidence is contested by decreasing the severity of its interim order.
[20] Dr. Fingerote has been practising medicine for 37 years without any prior allegation of this type. He continued practising for a year after the patient made her allegation to the College before the Committee imposed its interim order. There is no evidence of any similar complaint occurring during that year. Certainly the College did not treat the case as one requiring any urgency.
[21] Dr. Fingerote argues that not only is the evidence against him contested in a “he said; she said” sense, but it is also perception-based. That is, even if the ultimate discipline panel accepts that he said and did what was alleged, what makes it abusive is the patient’s perceptions that he was referring to her and touching her in a sexual manner. The Committee simply accepted that the allegations, if true “are of a sexual nature and…would constitute sexual abuse.” It admitted no possibility for a finding that even if what the witness said was true, there could be medically appropriate or non-sexual explanations based on a different perception.
[22] It is apparent that what drove the Committee to this finding was its determination that there is “no clinical reason for a physician conducting such an examination to rest his or her hand or arm anywhere on the patient’s body.” But that is a question of clinical technique. Dr. Fingerote made submissions concerning his technique that included the possibility of contact with the patient’s breasts. The Committee had no expert evidence before it on the proper technique for auscultation. It rejected the doctor’s position despite holding that it could not make findings of fact or credibility assessments at this early stage.
[23] The Committee seems to have relied upon some medical knowledge, perhaps that of the two members of the Committee who are doctors. But a tribunal’s expertise is not a substitute for evidence. No evidence was adduced in a manner that allowed Dr. Fingerote to know the case against him and address it. Moreover, there is no explanation of the how the Committee ignored the decision in OPQ in which the Discipline Committee found that resting on the patient’s breast can indeed be both clinically appropriate and not amount to sexual abuse. The Committee apparently resolved an issue that is one of contested clinical technique with no evidence and, from that, drew an inference as to the likelihood of future harm to patients.
[24] The Committee’s decision to decrease the severity of the terms it imposed as a result of the frailties of the evidence is equally problematic. While the strength of the evidence might be relevant to an assessment of the risk of harm, it has nothing to do with the appropriate interim terms. If the doctor is found to be likely to expose his patients to harm, then as noted by Nordheimer J. above, the Committee is charged with providing the least restrictive order necessary to protect the public. Once the Committee determines that patients are at risk, the remedy must protect them from the risk. Providing a lesser remedy because the evidence of risk may be challenged just leaves people at risk in circumstances where the Committee has already decided that it has enough evidence to satisfy itself, on balance, that there is a risk of harm.
The Scott Case
[25] The College relies on the decision of the British Columbia Court of Appeal in Scott v College of Massage Therapists of British Columbia, 2016 BCCA 180. In that case, a patient complained that during a massage therapy session, the therapist masturbated and twice put his penis on her wrist. The College suspended the therapist’s license pending the hearing of the complaint against him.
[26] Under the BC statute, the board’s power to impose an interim suspension before a hearing required a finding that relief was “necessary to protect the public.” The Chief Justice of British Columbia, writing for the unanimous court, held that the standard of proof of whether it is necessary to suspend a therapist in the public interest will depend on “the urgency and other circumstances of the case.” The Chief Justice held that there are two distinct questions. First, one considers the strength of the case supporting the allegations. Then one considers the risk of harm to the public. While the questions are distinct the court noted that the answer to the first question may have an impact on the second as I noted above.
[27] The key holding in Scott, on which the College relies, is that in considering the strength of the case, it is sufficient for the Committee to find that there is a prima facie case on the merits. That is, all that the Committee needs to find is that the allegations, if true, could lead to a holding of misconduct. The College says that based on Scott, all it needs to prove to justify imposition of interim restrictions or conditions is that it has a prima facie case on the merits. That is not how I read the Scott case however.
[28] Without doubt the Chief Justice held that in assessing the first question, a prima facie case is sufficient. I agree with that holding. As long as the case is not frivolous, there is no way to assess the merits with any greater degree of definitiveness at this early allegation stage. But there remains a second question to be asked concerning the risk of harm.
[29] In BC, the second question is whether relief is “necessary to protect the public”. In Ontario, the issue is whether the doctor “exposes or is likely to expose [his or her] patients to harm or injury.” The Scott case does not deal with the second question at all. It appears not to have been in issue in the appeal. Perhaps it was obvious from the nature of the allegations and the other circumstances identified for balancing by the Court of Appeal. But the case decidedly does not say that proof of a prima facie case is all that is required to entitle the Committee to order interim relief. In para. 68 of the Scott decision, the Chief Justice says the opposite; that it is an error to conflate the two tests.
[30] Were we to hold that interim relief is available on proof of a prima facie case on the merits without more, the harm test in s. 25.4 would be meaningless and redundant. No case can proceed to a hearing if the College does not have a prima facie case. If all that is required to justify an interim order against a physician is a prima facie case, then interim conditions are available in every case that passes over a hurdle of not being frivolous and vexatious. That simply ignores the words, “exposes or is likely to expose [his or her] patients to harm or injury.”[^2]
Summary
[31] The determination of whether a doctor “exposes or is likely to expose [his or her] patients to harm or injury” is a nuanced and difficult decision. Interim conditions are discretionary and extraordinary. They have the potential to greatly harm a doctor’s reputation and to do so quite unjustly if the underlying allegations are not made out. However, when dealing with issues of professional misconduct generally, and sexual abuse in particular, it is absolutely imperative that vulnerable patients be adequately protected. If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.
[32] As noted at the very outset of these reasons however, the law requires that the Committee draw inferences and form its opinion based on evidence. It cannot speculate. In this case, it points to no evidence nor any basis to find that Dr. Fingerote is likely to expose his patients to a risk of harm or injury other than its finding that the allegations made could, if proven, amount to sexual abuse. The label “sexual abuse” is not, in and of itself, probative of the risk of future harm. It is the acts themselves – that is, the evidence supporting the underlying charge - and then any other evidence of urgency or other relevant circumstances that are evidence on which an inference or an opinion may be formed. It may well be that there are cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm. However here, where the facts are contested, the conclusions are based on a person’s perception of another’s intention, and where there is a clinically appropriate explanation put forward with no evidence to the contrary in the record, the Committee needs to point to some evidence to support its inference or opinion that the doctor exposes or is likely to expose his patients to harm or injury.
[33] Here, the Committee’s finding that “there is no clinical reason for a physician conducting such an examination to rest his or her hand or arm anywhere on the patient’s body” was not based on any evidence at all. It cannot therefore form the basis for the inference drawn by the Committee that the doctor is likely to expose his patients to harm or injury.
[34] I am very cognizant of the need to defer to the Committee’s findings. But, like Jennings J., I am not re-weighing the evidence weighed by the Committee, “I am searching for its existence”. I can find none. The decision cannot meet a reasonableness standard predicated on transparency and intelligibility. Therefore, the decision cannot stand and is set aside.
F.L. Myers J.
I agree _______________________________
Then J.
I agree _______________________________
Low J.
Release Date: August 30, 2018
CITATION: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131
DIVISIONAL COURT FILE NO.: DC 471/18
DATE: 20180830
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, LOW and MYERS JJ.
BETWEEN:
Roberts Joel Fingerote
Applicant
– and –
The College of Physicians and Surgeons of Ontario Respondent
Respondent
REASONS FOR JUDGMENT
Released: August 30, 2018
[^1]: Although the opinion of Justice Nordheimer was a dissenting opinion, he made clear in the words emphasized above that on this point the court was unanimous. See also: Rohringer v Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656 at paras. 41 and 42.
[^2]: If I am wrong and Scott does indeed stand for that proposition, then in my respectful view, it does not and should not represent the law of Ontario.