Hill v. College of Physicians and Surgeons of Ontario, 2018 ONSC 5833

CITATION: Hill v. College of Physicians and Surgeons of Ontario, 2018 ONSC 5833

DIVISIONAL COURT FILE NO.: DC-010/17

DATE: 20181003

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CONWAY, MATHESON AND SHEARD JJ.

BETWEEN:

DR. DAVID JAMES HILL

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Anthony Little, Q.C. and Kenneth Peacocke, for the Appellant

Carolyn Silver and Ruth Ainsworth, for the Respondent

HEARD at Toronto: September 24, 2018

MATHESON J.

1This is an appeal from a decision of a panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) dated December 2, 2016, and the related penalty and costs decision dated May 17, 2017. The Appellant appeals the Committee’s finding of incompetence, the revocation of his certificate of registration and the order that he pay costs in the amount of $69,538.

2The appeal is pursuant to s. 70(1) and (2) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c 18 (the “Code”), which permits appeals on questions of law or fact or both.

3For the reasons set out below, the appeal is dismissed.

Brief background

4The Appellant practised as a family physician from 1975 through to 2015. According to the Appellant, he retired in early 2015, at age 68, but continued to see some patients later that year.

5In 2012, Patient A complained to the College that the Appellant had failed to diagnose his colon cancer. In addition to investigating that complaint, the College had a chart review done of 25 of the Appellant’s patient charts.

6In 2014, Patient A’s complaint was referred to a discipline hearing as well as issues arising from the chart review. The Notice of Hearing alleged that the Appellant committed an act of professional misconduct in that he had failed to maintain the standard of practice of the profession, had engaged in conduct or 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, and that he was incompetent as defined by subsection 52(1) of the Code.

7From approximately January to August of 2015, the Appellant’s practice was supervised by Dr. Kuhlmann. The hearing was scheduled to begin in September 2015.

8The Appellant had legal representation prior to the commencement of the hearing. However, on the first day of the hearing, his lawyer attended and informed the Committee that his retainer had come to an end and the Appellant was requesting an adjournment. The Appellant was not in attendance.

9The hearing was adjourned to allow the Appellant to retain new counsel. The hearing was adjourned to October 5, 2015, and again to February 16, 2016. The College sought and obtained an interim suspension of the Appellant’s certification of registration as a term of the adjournments.

10On February 16, 2016, the Appellant did not attend the hearing. His wife attended with a doctor’s note indicating that a physician had advised the Appellant against attending for medical reasons, without any detail. The Appellant’s wife informed the Committee that the Appellant asked that the hearing proceed in his absence. He did not want an adjournment.

11The Committee therefore proceeded. The College called Dr. Sloan, an expert in family medicine, as its only witness. The next day, the Appellant emailed the Committee’s Independent Legal Counsel indicating he wanted to attend the hearing. He requested a short adjournment. The College consented.

12The hearing was adjourned to March 1, 2016. The Appellant attended that day with another lawyer, but that lawyer withdrew from representation before any evidence was called.

13The Appellant testified and was cross-examined. On March 2, the Appellant requested and was granted a further adjournment. The hearing continued on March 28 - 30 and June 6, 2016.

14The Appellant represented himself. The Appellant introduced a number of documents into evidence with the consent of the College and called a number of witnesses. The Appellant called Dr. Caulford, who was accepted as an expert in family medicine. Dr. Caulford gave an opinion about the patient charts that had been selected and reviewed by the College. Dr. Caulford agreed, in part, with the problems identified by the College’s expert, Dr. Sloan. Dr. Caulford gave no opinion about the allegations concerning Patient A.

15The Appellant also tendered an expert report from a Dr. Lake, but that physician was not available to testify or be cross-examined. The College therefore objected to the admission of Dr. Lake’s report, and it was ruled inadmissible. As well, the Appellant sought to introduce Dr. Kuhlmann’s reports. The College objected unless Dr. Kuhlmann was made available to be cross-examined. The Appellant indicated that Dr. Kuhlmann would testify, but at the close of his evidence he indicated that he had cancelled that witness.

16The Appellant called three patients, however, two of them were dismissed after it became apparent that they were not patients whose care was at issue in the hearing. As well, the Appellant wished to call Dr. Burko, who was ultimately not permitted to testify because his evidence was general character evidence and not relevant to the liability stage of the hearing.

Discipline Committee Decision

17By decision released on December 2, 2016, the Committee found that the Appellant had failed to maintain the standard of practice of the profession, had engaged in disgraceful, dishonourable or unprofessional conduct and found that the Appellant was incompetent.

18With respect to the finding of failure to maintain the standard of practice regarding Patient A, the Committee agreed with Dr. Sloan and found a number of deficiencies in the care received by that patient. They considered the Appellant’s evidence. There was no expert evidence in support of the Appellant’s position.

19With respect to the failure to maintain the standard of practice regarding the patient charts, the Committee found that both Dr. Sloan and Dr. Caulford were amply qualified to provide expert opinion evidence. They also noted that Dr. Caulford agreed with a number of the problems with the charts that had been identified by Dr. Sloan. Dr. Caulford acknowledged and agreed with the charting deficiencies outlined by Dr. Sloan, but testified that Dr. Sloan’s assessment of the Appellant was excessively harsh, focused mostly on finding fault. Dr. Caulford testified that based on information he had received from the Appellant, the charts did not reflect the care that was provided. However, the weight given to his opinion was undermined because the information provided to him by the Appellant was not otherwise in evidence.

20The Committee also found a failure to maintain the standard practice for these patients in respect of the Appellant’s investigation of their complaints and his management of diabetic patients, again based on the evidence of Dr. Sloan and, in part, on the evidence of Dr. Caulford.

21With respect to the finding of disgraceful, dishonourable or unprofessional conduct, the Committee found professional misconduct regarding Patient A in relation to Appellant’s communications with him in response to his demands for financial compensation.

22However, the main issue was the falsification of patient charts. This arose from a practice that the Appellant adopted for at least the last five to seven years of his practice. Chart pages were copied and reproduced in other patient charts. For one of the charts in the group of charts reviewed by the College, the entire clinical record was a copy from another chart.

23The Appellant admitted to this practice, testifying that it was a way of cutting down his workload. He testified that he was trying to find a way to survive in practice for a couple more years. He testified that a lot of office visits were repetitive and boring, he was running an enormously busy practice and it was exhausting, and “before you know it, you are cutting corners.” He testified that copying and pasting patient histories was a stupid mistake, but also said that out of the thousands of files he had amassed in practice, 99% of the files were “amazing”.

24The Committee noted that falsifying charts is dishonest and deceitful and reflected a lack of moral fitness to discharge the obligations expected of a member of the College. They found that the Appellant continued, throughout the hearing, to rationalize and justify his behaviour when there was no excuse for it.

25With respect to the finding of incompetence, the Committee addressed the test as set out in s. 52 of the Code. The Committee accepted the evidence of Dr. Sloan that the Appellant’s level of practice had seriously deteriorated commencing in at least 2010, that he had significant knowledge gaps for common medical conditions and that he often under or over investigated patients. The Committee found that there was no evidence that the Appellant had any insight into his failures or had changed his practice to comply with the standards of practice of the profession.

26In their reasons for decision, the Committee specifically commented on the Appellant’s lack of legal counsel and his evidence. The Committee indicated that they had given the Appellant as much leeway as possible in order to present his case. Despite those allowances, they found his evidence was often irrelevant, his logic difficult to follow and noted that he frequently contradicted himself. They specifically noted that while he acknowledged that others may have been critical of his charting and that it may have been a problem, he went on to say that his note taking had been very good. The Committee found that there was a “clear disconnect” between how the Appellant saw himself and the clear inadequacies and shortcomings in his practice.

Penalty

27The penalty hearing was initially scheduled for February 22, 2017. The Appellant did not attend. That morning, his wife told College staff that the Appellant would not be attending on that date because he was ill. She did not stay for the hearing nor did she request an adjournment.

28On its own motion, the Committee decided to adjourn the penalty hearing. Among other reasons, the Committee noted that Appellant was unrepresented, there was some evidence that he was ill and that the College was seeking revocation. The hearing was adjourned to March 9, 2017. The Committee noted in its reasons for decision that if the Appellant was unable to attend on that day for medical reasons, he should provide adequate medical evidence in advance of any adjournment request.

29On March 9, 2017, the Appellant did not attend and no one attended on his behalf. There was no adjournment request, nor any medical reason put forward for the non-attendance. The Appellant had left telephone voicemail messages for the Committee’s Independent Legal Counsel in advance of the hearing. He indicated that he was aware of the hearing date. He had also provided three prior Discipline Committee decisions for the Committee’s consideration, which were provided to the Committee. The Committee proceeded to hear submissions on penalty without the Appellant in attendance.

30The Committee released its decision on May 17, 2017. In its reasons for decision, the Committee noted that throughout the prior hearing, the Appellant had attempted to rationalize and justify his actions, demonstrating little or no insight into what the Committee found were clear deficiencies in his practice. The Committee described the discrepancy between the objective evidence and the Appellant’s opinion of himself as stark. The Committee noted the importance of insight and willingness to change, without which remediation was not possible. The Committee found that allowing the Appellant to continue to practice in any capacity without remediation would not serve the public interest and pose a significant risk of harm to his patients. The Committee found that the Appellant had not accepted responsibility for any of the wrongdoing that gave rise to the findings of the Committee.

31The Committee expressly recognized that revocation was a very serious penalty, but concluded that it was warranted in this case to protect the public. The Committee concluded that the Appellant would pose a risk to the public due to his “incompetence, his inability to self-reflect, his ability to deceive, and his ongoing denial and lack of insight.” The Committee found that the Appellant’s dishonesty was a significant aggravating factor because it placed the public at risk and left the Committee with no other choice than to impose revocation as the most appropriate penalty.

32The Committee reviewed the three cases submitted by the Appellant, but distinguished all of them because in those cases the physicians had admitted their deficiencies and taken steps to make changes.

33On costs, the Committee determined that it was an appropriate case in which to award costs and agreed with the quantum submitted by the College. In doing so, the Committee noted that the specific amounts claimed were within the applicable Tariff rates and that the conduct of the Appellant had resulted in additional and unnecessary costs being incurred.

34In conclusion, the Committee ordered that the Appellant’s certificate of registration be revoked, that he attend before the panel to be reprimanded and that he pay costs of $69,538.

Analysis

35Although the Appellant does not concede the other findings, this appeal is brought in respect of the following findings only: incompetence, the penalty of revocation and costs.

36There is no issue between the parties about the standard of review on this appeal. The standard of review is reasonableness and penalty decisions are owed a high degree of deference. Further, this Court will not interfere with a decision on penalty absent an error in principle or a sentence that is clearly unfit: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116 (Div. Ct.), at para. 39.

37The Appellant’s main submission on this appeal is that the Committee ignored evidence that would have mitigated against a finding of incompetence and the penalty of revocation. More specifically, the Appellant submits that the Committee ignored evidence that the Appellant fully recognized his deficiencies and fully accepted responsibility for his actions. The Appellant therefore submits that the finding that he lacked insight, which forms part of the reasons for the finding of incompetence and the penalty decision, was unreasonable.

38The Appellant relies mainly on an isolated sentence from the reasons for decision, in which the Committee concluded that there was no evidence that the Appellant had insight into his failures or had changed his practice to comply with the standards of practice of his profession. The Appellant does not take significant issue with the second part of this conclusion – that there was no evidence that the Appellant had changed his practice to comply with the standards of practice of the profession. However, the Appellant submits that bearing in mind the whole of the Appellant’s testimony, the Committee ought to have recognized that he did make concessions about and take responsibility for the failures in his practice.

39The above phrase regarding the Appellant’s insight into his failures must be read in context of the whole of the reasons for decision and evidence. The Committee expressly recognized that the Appellant had acknowledged that he ought not to have done some things, yet the Committee also took into account his other evidence. As noted in the reasons, the Appellant testified that his care of Patient A was “exemplary” despite the expert evidence to the contrary and the lack of expert evidence in support of his care. On charting, the Appellant testified that even though Dr. Sloan had some valid points, 99% of charts were “amazing.” On the issue of chart falsification, the Appellant testified that, “I do not believe for one minute that it remotely affected anything to do with the care of the patient ...”. He further suggested that the College “cherry-picked” the 25 charts and they therefore represented a skewed assessment of the degree of his copying.

40The Committee expressly assessed the Appellant’s testimony and its contradictions, concluding that there was a “clear disconnect” between how the Appellant saw himself and the clear inadequacies and shortcomings in his practice.

41There was an ample evidentiary record to support the finding of a lack of insight, and the Committee was in the best position to assess the Appellant’s evidence and his contradictory testimony. The Appellant has not demonstrated that the finding of incompetence or the penalty of revocation was unreasonable on this basis.

42Although not emphasized in the oral submissions, the Appellant also challenges the Committee’s refusal to admit Dr. Lake’s expert report because Dr. Lake was not available to be cross-examined. The Appellant challenged this finding on the basis that the report was “incorporated by reference” into Dr. Sloan’s report and therefore should have been admitted for the truth of its contents. On the contrary, the ordinary evidentiary rules applied to this proposed expert evidence. The Appellant has failed to show that it was unreasonable to decline to receive the expert report when Dr. Lake would not be available to be cross-examined. The Appellant also challenges the decision not to receive Dr. Kuhlmann’s reports. However, at the time the Appellant indicated that he planned to call Dr. Kuhlmann as a witness and later on decided not to do so.

43On both incompetence and penalty, the Appellant also submits that the Committee failed to take into account that he was ill and self-represented. The record shows the contrary. There is an ample record that the Committee accommodated the Appellant, gave him significant leeway and gave adjournments as a matter of fairness even when not requested.

44There was no other challenge to the finding of incompetence. The Committee had Dr. Sloan’s evidence that the Appellant’s practice had seriously degraded to the point where the Appellant was engaging in substandard care, had significant knowledge gaps for common medical conditions and often under or over investigated patients. The Committee found that the Appellant’s patient care and charting reflected a lack of knowledge, skill and judgment that demonstrated that he was unfit to practice or that his practice should be restricted, as required for a finding of incompetence under the Code.

45The Appellant raises additional issues regarding the penalty of revocation.

46The Appellant submits that even though he did not attend his penalty hearing, the Committee ought to have considered certain evidence that the Appellant had sought to introduce on liability and was not admitted. In relation to some of his witnesses, the Appellant had been told in the liability hearing that the evidence was not admissible, but could be relevant at the penalty stage. The Appellant submits that at the penalty stage, the Committee should have, on its own initiative, at least considered the reports of Dr. Lake and Dr. Kuhlmann, even though they had not testified or been cross-examined. There was also at least one character witness who had been put forward in the liability hearing. Yet the Appellant took no steps to put this or any evidence forward at the penalty hearing, nor did he seek an adjournment at the time in order to do so. He simply did not attend without any explanation. The Appellant has not established that the Committee had an obligation to take these steps for him.

47The Appellant further submits that the Committee ought to have considered his long history of good service to patients, his pride, his future and his need to earn a living. Some of these submissions were contrary to the evidence that was already before the Committee, such as the evidence of his substandard patient care. Further, the Appellant had the opportunity to put further evidence forward at the penalty hearing, and make submissions, yet he chose not to do so. It was not unreasonable for the Committee to proceed based on the evidence and submissions that were before it. The Committee considered the seriousness of revocation. It decided that the Appellant would pose a risk to the public due to his incompetence, his inability to self-reflect and his ability to deceive. The Committee found that dishonesty was a significant aggravating factor because it placed the public at risk.

48The Appellant also puts forward additional cases where lesser penalties were imposed, beyond the three cases that he had provided to the Committee in advance of the penalty hearing. Based on all of these cases, the Appellant submits that the Committee erred by ordering a disproportionate penalty. However, this submission was premised on the alleged error that the Committee ought to have found that the Appellant admitted his deficiencies and took steps to change. The Appellant has not demonstrated that the Committee made any such error. On the factual findings that were made by the Committee, the cases put forward are not sufficiently analogous to conclude that the penalty of revocation was unreasonable based on proportionality.

49Penalty decisions are owed a high degree of deference. The Appellant has not established that that there was an error in principle or a sentence that was clearly unfit.

50On the issue of costs, the Appellant again submits that the Committee failed to take into account that he was ill and self-represented, and also puts forward some examples of lower costs awards in different circumstances.

51Section 53.1 of the Code provides that in an appropriate case, a panel may make an order requiring a member who has committed an act of professional misconduct or is found to be incompetent to pay all or part of the College’s legal costs and expenses as well as costs and expenses of the investigation and of the hearing. This discretionary decision is entitled to deference.

52The College was successful in proving all of the allegations in the Notice of Hearing. The costs sought were within the Tariff and did not include any claim in respect of the costs of the penalty hearing. Further, the Committee found that the Appellant’s conduct had resulted in additional and unnecessary costs being incurred by the College. The College had incurred significant cancellation charges as a result of the Appellant’s conduct. Again, the Appellant did not introduce evidence at the penalty stage regarding his health, or whether it affected his ability to request adjournments in a timely manner.

53The Appellant has not demonstrated that the costs order was unreasonable in the circumstances of this case.

54In conclusion, the Appellant has failed to establish that the decision on incompetence, revocation or costs was unreasonable. The decisions at issue fell within the range of possible, acceptable outcomes in this case.

Other issues

55The Respondent objects to certain evidence in the Appeal Book and Compendium because it was not before the Committee and there is no basis for its admission now. To the extent that the documents in question were tendered to the Committee, ruled inadmissible and that ruling is now challenged, such as the reports of Dr. Lake and Dr. Kuhlmann, they are properly before us. However, there are additional documents beyond that category of documents, including documents that post-date the decisions at issue. There is no motion for fresh evidence before us or other explanation regarding why those additional documents should be received on this appeal. I have disregarded them.

Orders

56The appeal is therefore dismissed.

57The Appellant shall pay the Respondent costs in the agreed on amount of $10,000, all inclusive.

W. Matheson J.

I agree _______________________________

B. Conway J.

I agree _______________________________

L. Sheard J.