CITATION: Sharma v. College of Physicians and Surgeons of Ontario, 2023 ONSC 5687

DIVISIONAL COURT FILE NO.: 440/23

DATE: 20231012

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, R. Gordon and Schabas, JJ.

BETWEEN:

DR. VIJAY SHARMA

Applicant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Mark Polley and Emily Fraser, for the Applicant

Sayran Sulevani and Penelope Ng, for the Respondent

HEARD at Toronto,

September 28, 2023

REASONS FOR JUDGMENT

SCHABAS J.

Overview

[1] The applicant, Dr. Vijay Sharma, applies to this Court seeking to quash an Interim Order of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”), dated May 9, 2023 (the “Order”). The Order placed restrictions on Dr. Sharma’s ability to practice medicine, requiring that he do so only under the guidance of a clinical supervisor acceptable to the College at Dr. Sharma’s expense, and that he must be directly observed by the clinical supervisor when providing anaesthesia care. As Dr. Sharma is an anesthesiologist, the Order effectively prevents him from practicing pending the outcome of the investigation into his conduct.

[2] The Order was made without notice to the applicant pursuant to s. 25.4(7) of the Health Professions Procedural Code (the “Code”), Schedule II to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 75 (the “RHPA”) which empowers the ICRC to take interim action to suspend or restrict a physician's practice at any time during an investigation if it forms the opinion that a physician's conduct “exposes or is likely to expose patients to harm or injury.”

[3] The ICRC issued a Decision and Reasons for the Order dated May 9, 2023. It also considered and dismissed a request to vary the Order in a Decision and Reasons dated June 23, 2023 (the “Reconsideration Decision”). Dr. Sharma’s counsel then brought this application to quash the Order on an urgent basis.

[4] For the reasons that follow, the application is dismissed. In my view, the decisions of May 9, 2023 and June 23, 2023 are reasonable. The ICRC’s findings were based on evidence which could reasonably support the conclusion that Dr. Sharma’s conduct is likely to expose patients to harm or injury. I am not satisfied that the ICRC failed to address, or misapprehended, relevant evidence that would have led to a different conclusion. Further, while the Order is severe, the applicant has not satisfied the burden of showing that the ICRC acted unreasonably in not imposing a less restrictive order given its objective of protecting patients.

Background

[5] Dr. Sharma has practised as an anesthesiologist in Ontario since 1995. For the last 17 years, he has practised at the Scarborough Health Network (“SHN” or the “hospital”). He has also worked out of several Out of Hospital Premises ("OHPs"), primarily gastrointestinal clinics.

[6] The College is the self-governing regulatory body for the medical profession in Ontario. Its powers and authority are contained in the RHPA and the Code. The ICRC is a statutory committee of the College which is responsible for considering the results of investigations and determining whether a matter should be referred to the Discipline Committee. The ICRC may also make interim orders at any time in an investigation if it forms the opinion that the conduct of a member exposes or is likely to expose patients to harm or injury. It can direct the Registrar to suspend the member or to impose terms, conditions or limitations on the member's certificate of registration. Such an order remains in place until varied by the ICRC, or until the matter is fully resolved either by the ICRC or the Discipline Committee.

[7] The College commenced an investigation into Dr. Sharma on May 3, 2023, following the receipt of a mandatory report from the Chief of Staff of SHN on April 19, 2023 that Dr. Sharma’s hospital privileges had been suspended on March 23, 2023. This suspension followed an external review of Dr. Sharma’s practice and two incidents in March 2023 involving Dr. Sharma’s treatment of patients. The hospital had concluded that his “actions have and are reasonably likely to expose patients to harm or injury and are detrimental to patient safety and the delivery of quality patient care”, and that “immediate action must be taken to protect patients from harm or injury.”

[8] The external review of Dr. Sharma was commenced following a series of complaints about him made between May 2020 and October 2022. It was completed by Dr. Robert Smyth in December 2022. The report noted that Dr. Sharma had previously been disciplined by the College in 2014 for inattention to patients. At that time, the College required Dr. Sharma not to leave an operating room, and not to use a computer for personal or non-work-related use while in an operating room, in which he is responsible for anaesthesia. Dr. Smyth’s report described a number of continuing concerns with Dr. Sharma’s behaviour, including frequent lateness, inattention to patients during surgery, and falsification of medical records which, Dr. Smyth stated, “will continue to put safe patient care in jeopardy.”

[9] As the hospital was considering Dr. Smyth’s review and Dr. Sharma’s response to it, submitted on March 8, 2023, the Chief of Staff of SHN was made aware of incidents involving patient care on March 1 and March 6, 2023 which then led to the suspension of Dr. Sharma’s hospital privileges and the reporting of the matter to the College.

[10] The March 1, 2023, incident involved the treatment of a patient during a gastroscopy in which Dr. Sharma had to be alerted by a nurse to a decrease in oxygen saturation in the patient’s blood. The assistance of at least one other physician was required to open the patient’s airway by intubation as the patient was not responsive for a period of time, followed by one-on-one attention of a nurse. The matter was reported to Dr. Mark Glube, the Chief of Anesthesiology at SHN who, after reviewing the chart, had no concerns about the care provided.

[11] On March 6, 2023, a patient died following a gastroscopy performed at 8:30 AM. Dr. Sharma was the attending anesthesiologist who administered a drug called midazolam. Dr. Glube investigated this incident and reported that following the brief procedure, at 8:39 AM, the patient had hypoxia, hypotension and bradycardia. His heart rate was no longer being captured or recorded. The only action taken at that time by Dr. Sharma was to give 10mg of ephedrine.

[12] At 8:42 AM, seven minutes after the last known breathing, the patient was found by nurses to be “dusky” with “no respiration.” Dr. Sharma was reported to be at his computer with his back to the patient and had to be alerted to the fact that the patient had no pulse. The patient was then resuscitated with the assistance of another anesthesiologist but died a short time later. Dr. Sharma manually changed data on the records and recorded, afterwards, a preoperative evaluation that the patient was “critically ill” despite observations describing the patient as “stable” during the previous 48 hours. The preoperative evaluation also quoted incorrect data which appeared to have been obtained from records prepared after the procedure.

[13] Dr. Glube concluded that the patient was given anesthetic without appropriate monitoring, stating:

I believe this patient stopped breathing following the administration of midazolam. It does not appear as though this was recognized. Over the course of the following 8 minutes, the clinical condition continued to deteriorate until others in the room notified Dr. Sharma that there was no pulse.

[14] Dr. Glube agreed with the conclusion of the intensivist that the cause of death was related to sedation administered during the gastroscopy.

[15] After concerns about Dr. Sharma altering the anesthesia record regarding the March 6, 2023 incident came to light, a more detailed review of the March 1 incident was done by Dr. Glube. He found that Dr. Sharma had manually altered heart rate, blood pressure and oxygen saturation readings recorded in the electronic medical record (“EMR”) on two separate occasions, first following the delivery of the patient to the recovery room and later in the afternoon that same day. The modified numbers gave the appearance that the patient was stable.

[16] Dr. Glube noted that the original, unaltered values were consistent with each other and consistent with the description from the nurse and the endoscopist who had reported the matter on March 1, that the patient was not stable. Dr. Glube confirmed that there were no manual blood pressure cuffs, oximeters, or capnography machines in the room that could have been used to obtain other readings, such as those recorded by Dr. Sharma, and Dr. Glube therefore concluded that the altered numbers were fabricated.

[17] Dr. Sharma’s explanation for his changes to the data was that he experienced technical challenges capturing accurate readings of patients’ vital signs in the electronic charts (the EPIC system), and therefore had to update them with his own readings. However, nurses reported that Dr. Sharma is often distracted and does not apply monitors.

The May 9, 2023 Order, Decision and Reasons

[18] The ICRC met on May 9, 2023 and made the Order that day. The ICRC provided lengthy reasons referring to, among other things, Dr. Sharma’s “significant history with the College” involving concerns of inattentiveness and improper record-keeping, the external reviewer’s conclusions regarding inattentiveness and falsification of records, the incidents on March 1 and 6, and Dr. Sharma’s responses, including many letters from staff supportive of Dr. Sharma. At the conclusion of its reasons, the ICRC stated:

The Committee is aware that any order imposed should not exceed what is necessary to protect patients from harm. Given the Committee's grave concerns about the Respondent's inattentiveness to patients while providing anaesthesia care, medical record-keeping, and lack of judgment and insight, the Committee is of the opinion, on reasonable and probable grounds, that the conduct of the Respondent exposes or is likely to expose his patients to harm or injury and urgent intervention is needed. The Committee is satisfied that this Order is necessary to protect patients.

[19] The ICRC did not suspend Dr. Sharma's certificate of registration. Instead, it ordered, among other things, that:

• Dr. Sharma practice only under the guidance of a clinical supervisor acceptable to the College who shall directly observe Dr. Sharma at all times when providing anesthesia care, throughout the procedure and beforehand, including pre-anesthetic assessment, induction, maintenance, and emergence and/or until transfer of accountability to another health professional;

• Dr. Sharma shall meet weekly with the clinical supervisor to review each patient chart and discuss any concerns; and

• the clinical supervisor will report to the College at least once every two weeks, or immediately if they have formed concerns about Dr. Sharma's standard of practice or that Dr. Sharma's patients may have been exposed to harm or injury.

[20] Following the issuance of the Order on May 9, 2023, Dr. Sharma was provided with the materials that had been before the ICRC and was given an opportunity to make submissions, which were received on May 30, 2023. In that lengthy submission prepared by his counsel, Dr. Sharma addressed in detail the issues of his history with the College, the external review, and the events of March 1 and March 6, 2023. Dr. Sharma’s counsel submitted that the ICRC did not have a sufficient basis to impose restrictions on his practice, and that the order goes beyond what was necessary as it effectively prevents him from practicing and earning a livelihood.

[21] Dr. Sharma included in his May 30, 2023 submission two “independent expert reviews” of the March 1 and March 6 incidents by Dr. Paul Westacott and Dr. Stuart McCluskey, both of whom are specialists in anesthesiology. Although both raised concerns about Dr. Sharma’s record keeping and data entry, Dr. Westacott concluded that “Dr. Sharma’s management meets the standard of care.”

[22] Dr. Sharma acknowledged that there were “aspects of his practice that require improvement.” He proposed, among other things, to limit his practice to OHPs pending the conclusion of the investigation, stating that “patients seen at OHP’s are typically lower risk”, and that his charts could be reviewed by a supervisor there.

[23] On June 21, 2023, the College investigator sought Dr. Sharma’s comments on how he proposed to practice in OHPs in light of his loss of hospital privileges which put him offside the Standards for OHPs. Dr. Sharma responded through his counsel the following day, taking the position that his privileges had not been lost, but only temporarily suspended.

The June 23, 2023 Reconsideration Decision and Reasons

[24] In its Reconsideration Decision of June 23, 2023, the ICRC declined to vary the Order. It did not accept Dr. Sharma’s submission that the reports “exaggerate the extent of issues with his practice” and stated that “the external review was particularly concerning.” Dr. Sharma’s altered records of one of the incidents in March 2023 were not “clinically likely” and the ICRC was not prepared “to take the Respondent at his word” regarding alleged issues with the computerized monitoring system. The alterations did not fit the patient's clinical scenario, which “would not have been serious enough to warrant intubation by another anesthesiologist.” Further, in response to the decision to initiate a review, Dr. Sharma quoted “incorrect lab results and vital signs."

[25] The ICRC considered and rejected Dr. Sharma’s proposal to limit his practice to OHPs and have periodic chart reviews, concluding that this did not address the committee’s concerns. The ICRC noted, for example, that “OHPs typically have fewer safeguards in place as compared to hospitals”, and that mere chart review was “not sufficient to ensure patient safety, given the ongoing concern that Dr. Sharma has inappropriately altered charts.”

Standard of review and the statutory context

[26] The parties agree that the standard of review of the Order is reasonableness: Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882 (Div. Ct.) at para. 32; Kustka v College of Physicians and Surgeons of Ontario, 2023 ONSC 2325(Div. Ct).

[27] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court provided guidance on whether an administrative decision is reasonable. A reasonableness review is concerned with the presence of justification, transparency and intelligibility in the decision-making process. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints. The applicant has the burden of showing that a decision is unreasonable. Minor flaws or peripheral shortcomings are not sufficient; rather, any flaws or shortcomings must be sufficiently central or significant to the merits of the decision to support a finding of unreasonableness.

[28] The role of a reviewing court is to review the decision, not to re-weigh the evidence or to decide the issue afresh. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings: Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC, 7597, at para. 31; Vavilov at paras. 99-101, 125.

[29] In applying the reasonableness standard to orders made pursuant to s. 25.4 of the Code, the role of the College in regulating the medical profession is an important contextual factor, as the legislation and the Code must be interpreted and applied to protect the public: Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 SCR 513 at para. 36; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 at para. 101. This Court has stated a number of points to consider when reviewing these interim orders, including:

• the principal objective of the order is the protection of patients: Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654 at para. 23;

• if there is a demonstrated likelihood that a doctor will expose their patients to harm and/or injury, the ICRC may act, and its remedial discretion is to be accorded deference: Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 at para. 51;

• a committee with expertise such as the ICRC must be given deference when imposing measures to protect the public: Luchkiw at para. 51; and

• such orders of the ICRC are reasonable if there is “some evidence” to justify imposing the order: Luchkiw at para. 51.

[30] Consistent with Vavilov, this Court has also stated in the context of reviewing orders issued under s. 25.4 of the Code that reasons are not to be assessed against a standard of perfection, and that as interim orders a reviewing court is to be more tolerant in scrutinizing the decisions: Luchkiw at para. 51. A decision should not be set aside merely because it does not include or address all arguments or other details. Rather, “[i]f the court can discern the ‘why’ of the decision from the record and whatever reasons have been given, it must not intervene on the basis of the reasons’ adequacy or sufficiency”: Matheson at para. 43, quoting Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, at para. 29.

The Issues

[31] The applicant submits that the Order is unreasonable because:

(1) the Order is not based on actual evidence of probable harm as the ICRC’s reasons relied on evidence not in the record and failed to adequately consider evidence presented by Dr. Sharma; and

(2) the ICRC’s Order does not employ the least restrictive means of protecting patients.

Analysis

Issue 1: Sufficiency of evidence and adequate consideration of the evidence

[32] The applicant submits that there was insufficient evidence of probable harm to meet the standard required by s. 25.4(7) of the Code. Dr. Sharma submits that the ICRC fundamentally misapprehended evidence by relying on evidence that was not in the record, and that it unreasonably relied on Dr. Smyth’s review. He also argues that the ICRC ignored evidence presented by him; in particular, the evidence from Drs. Westacott and McCluskey.

[33] Dealing first with evidence that is not in the record, counsel for Dr. Sharma refers to the following passage of the Reconsideration Decision:

The Committee notes that the Respondent subsequently altered that particular record as follows: "normal all, slightly subnormal". The Respondent's documentation does not appear clinically likely. The Committee does not feel compelled to take the Respondent at his word regarding the issues with the EPIC system, as this particular alteration clearly does not fit the patient's clinical scenario in this case, which would then not be serious enough to warrant intubation performed by another anesthesiologist. Additionally, the Committee notes that in his response to the decision of the chief of staff to initiate a review, the Respondent quoted incorrect laboratory results and vital signs.

[34] Dr. Sharma’s counsel notes, correctly, that the words “normal all, slightly subnormal” are not found anywhere in the patient charts as altered by Dr. Sharma. However, the paragraph goes on to note, as was found by Dr. Glube, that Dr. Sharma altered readings on the patient’s chart to change abnormal numbers to seem normal or slightly subnormal. As Dr. Glube put it:

On further review, this chart has been significantly changed….A deeper examination into the chart reveals a period of profound hypoxia with associated heart rate and blood pressure changes. The actual numbers were altered on the chart to give the appearance of stability. [Emphasis added.]

[35] The ICRC’s use of quotes is misplaced, but the meaning is clear. The ICRC is not held to a standard of perfection. One must give “respectful attention” to the reasons and not parse every word: Vavilov at paras. 84 and 92. What matters is whether the Court can “discern the ‘why’ of the decision from the record and whatever reasons have been given”: Matheson at para. 43. The conclusion of the ICRC that charts were altered to make the vital signs of someone appear stable when they were in fact highly abnormal is a key finding explaining why the decision was made, supported in the record. I am also mindful, in reaching this conclusion, that it is not for a reviewing court to “buttress the administrative decision” when reasons contain a “fundamental gap” (Vavilov at para. 96); however, here there is no fundamental gap as the ICRC is addressing, clearly, its concern about Dr. Sharma’s fabrication of data on charts.

[36] Dr. Sharma also takes issue with the ICRC’s reliance on his discipline history and the external review by Dr. Smyth. The ICRC stated in its May 9, 2023 Decision that Dr. Smyth’s report “underscores an ongoing and concerning pattern of behaviour involving inattentiveness to patients while providing anaesthesia care and significant concerns with medical record-keeping.” In the Reconsideration Decision, the ICRC stated that Dr. Sharma’s history with the College – which includes prior discipline for his inadequate record-keeping and inattentiveness - “remains relevant to this case, in particular, demonstrating a pattern of concerns with medical record-keeping and behaviour involving inattentiveness to patients while providing anaesthesia care.”

[37] Counsel for Dr. Sharma submits that one should not be punished for one’s history, that a history does not establish a risk of probable harm, and that nowhere does Dr. Smyth say that he had serious concerns with patient safety. The ICRC erred, it is argued, in finding a risk of probable harm from “below standard conduct”, an error committed by the College in Liberman v. College of Physicians and Surgeons, 2010 ONSC 337 at para. 34. Jennings J. stated in that case that the committee must act on “’some evidence’, not evidence of below standard conduct, but evidence of probable harm.” See also: Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656at para. 41

[38] In this case, however, there was evidence that Dr. Sharma’s conduct exposes patients to harm. In the May 9, 2023 Decision, the ICRC referred to ongoing concerns with inattentiveness in the operating room, a lack of insight by Dr. Sharma into his behaviour, and concerns about continuing deficiencies in his record keeping.

[39] Similarly, in the Reconsideration Decision, the ICRC rejected the submission that it had exaggerated the extent of the issues with Dr. Sharma’s practice. The ICRC noted that the external reviewer interviewed staff who attested to Dr. Sharma’s continuing inattentiveness in the operating room and referred, again, to concerns arising from the incidents in March, 2023. The ICRC emphasized the conclusions of Dr. Smyth, including the comment that Dr. Sharma’s inattention results in him having to “rescue” patients which “is no way to look after patients under anesthesia and this behaviour should not be allowed to continue.” Respecting record keeping, Dr. Smyth commented that Dr. Sharma’s “falsification of times on the medical record is something that I have never witnessed in my practice. It is a serious abuse of the trust placed on us as physicians and asking nurses to be involved, is alarming.” Dr. Smyth also noted that “these cannot be ignored as the effect on the operative environment continues to put patients at risk” (emphasis added). Further, the ICRC noted that Dr. Smyth, after reviewing the many letters supportive of Dr. Sharma, nevertheless stated:

Dr. Sharma's concerning behaviour in the OR, dysfunctional relationships with many of the perioperative staff, and his constant denials have made it difficult for many of the staff to now work with him in a collegial manner. This will continue to put safe patient care in jeopardy. [Emphasis added].

[40] This evidence of patients being “at risk” and of putting “safe patient care in jeopardy” is “some evidence” that “the conduct of the Respondent exposes or is likely to expose his patients to harm or injury and urgent intervention is needed.” This distinguishes Dr. Sharma’s case from Liberman in which there was no evidence that he was exposing patients to harm. The concerns raised by the external reviewer are illustrated by the incidents of March 1 and March 6. As the ICRC noted in the May 9, 2023 decision, “[t]he information received to date is that Dr. Sharma's inattentiveness and failure to check the vital signs of the March 6, 2023 patient prior to administering sedation may have contributed to the patient's death.”

[41] Dr. Sharma also submits that the ICRC failed to consider his evidence, particularly the evidence of Drs. Westacott and McCluskey, in the Reconsideration Decision, contrary to the direction in Vavilov which warns, at para. 128, that “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.”

[42] Dr. Sharma is correct that there is no specific reference to the reports of Drs. Westacott and McCluskey in the Reconsideration Decision; however, the ICRC noted that it had Dr. Sharma’s package of May 30, 2023, which included those reports, and it made specific reference to Dr. Sharma’s submissions contained in the May 30, 2023 package. The ICRC stated that “the Respondent has provided a detailed review of the two cases (March 1 and March 6) and his resuscitation efforts with reference to contemporaneous paper documentation.” This included the two reports which addressed those incidents, including “issues with data capture” and Dr. Sharma’s admitted error in changing records without a detailed note documenting the changes, as was recommended by Dr. McCluskey. There is no basis, therefore, to conclude that the ICRC failed to consider the reports of Drs. Westacott and McCluskey.

[43] The two reports are in any event quite limited in their scope. They do not refer to the external review nor do they comment on whether Dr. Sharma’s conduct is “reasonably likely to expose patients to harm or injury.” Neither report addresses the concerns raised by Dr. Glube about Dr. Sharma’s reported inattention to the patients and delays in administering urgent resuscitation. Dr. Westacott states that he had the reports of Dr. Glube, but Dr. McCluskey appears to have just worked from the charts.

[44] Drs. Westacott and McCluskey do not address the basis on which Dr. Sharma changed the records, described as a fabrication by Dr. Glube given the lack of any other monitors in the room and the inconsistency between the records and the condition of the patients. Dr. McCluskey observes that it is possible, as Dr. Sharma claimed, that “EPIC or its communication with a monitor can be defective, resulting in errors to measurements recorded”, but said that “a simple note to indicate that there was a measurement error would be better than correcting or attempting to correct values already noted.” Dr. Westacott does not engage in any analysis about why a patient needed intubation if the numbers are as stated by Dr. Sharma.

[45] As the ICRC stated, it did not “feel compelled to take the Respondent at his word” about these issues, which appears to be what Drs. Westacott and McCluskey did. This is not a case, therefore, like that in Rohringer, at para. 52, in which it appeared that the respondent’s expert reports were not even considered, and no reasons were provided to explain why they were rejected. In Rohringer the ICRC provided no reasons at all for not setting aside its first decision suspending the applicant’s licence. Here, on the other hand, there is a basis to conclude that the reports of Dr. Sharma were reviewed, and the ICRC effectively explained why they were not accepted. The reasons of the ICRC may not be perfect, but perfection is not the standard.

[46] In conclusion on this issue, there was “some evidence” before the ICRC to support its opinion that the conduct of Dr. Sharma “exposes or is likely to expose patients to harm or injury.” It is not for this Court to re-weigh or substitute its opinion for that of the ICRC, a professional body far better qualified to assess medical issues than a court. The reasons of the ICRC in its Decisions are, to use the words in Vavilov, “based on an internally coherent and rational chain of analysis and . . . [are] justified in relation to the facts and law that constrain the decision maker” (para. 85). They therefore meet the test of reasonableness and should not be set aside.

Issue 2: Is the Order overly broad?

[47] The parties agree that the ICRC must impose the least restrictive order necessary to protect the public. The order must only address the risk of harm. This principle of restraint recognizes that such interim orders are made when allegations remain unproven: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 at paras. 7 and 24; Morzaria v College of Physicians and Surgeons of Ontario, 2017 ONSC 1940 at para. 46. It is also well-accepted that an expert tribunal such as the ICRC is entitled to deference in the choice of restrictions: Morzaria at para. 26.

[48] Dr. Sharma submits that the Order effectively prohibits him from practicing as an anesthesiologist, rather than tailoring the terms to address concerns about attentiveness and charting. Although we were informed that Dr. Sharma has more recently, in August 2023, proposed to the College that he have full-time clinical supervision by a nurse and that a physician hold regular meetings with him and conduct chart review, that was not before the ICRC in the Decisions under review and we therefore do not address that proposal here.

[49] In its Decision of May 9, 2023, the ICRC stated that it was “aware that any order imposed should not exceed what is necessary to protect patients from harm” in concluding that the terms of the Order were necessary. In its Reconsideration Decision of June 23, 2023, the ICRC repeated what it said in the first Decision, and then addressed Dr. Sharma’s proposal that he be permitted to limit his practice to OHPs and to “work with a supervisor who will review a selection of charts on a weekly basis.” Dr. Sharma submitted, as the Reconsideration Decision sets out, that patients at OHPs “are typically lower risk” and that “this would be a better environment for him partially because almost all OHPs maintain paper charting.”

[50] The ICRC explained why it rejected these proposals, as follows:

OHP Practice Setting

The Respondent's proposal to only practice in OHPs is not reassuring to the Committee. By the very nature of its setting, the OHPs have fewer safeguards than there are in a hospital setting (i.e., OHP practices are isolated, with less assistance available and no colleagues around to notice any problems or lapses, etc.).

Paper Charting

The Committee confirms that contrary to the Respondent's suggestions that almost all OHPs have a paper charting system, many OHPs have an EMR system in place. The Committee is puzzled as to why paper charting would provide comfort to the Committee when the EMR system allows for an audit trail that would discover any alterations made to the charts, as in the current case.

[51] The ICRC also went on to explain the need for clinical supervision “at all times” in the following passage of the Reconsideration Decision:

Given the Committee's ongoing concern that the charts may have been inappropriately altered, the Respondent's proposal for the supervisor to review a selection of charts is not sufficient to ensure patient safety. As such, the Committee confirms that clinical supervision at all times remains the least restrictive measure required in this case.

[52] These reasons are intelligible, transparent and provide justification for the ICRC’s decision. The conclusions are reasonable, consistent with the objectives of the statute and the Code and are entitled to deference.

Conclusion

[53] The application for judicial review is dismissed. As agreed between the parties, the applicant shall pay costs to the College in the amount of $6,000.

P. B. Schabas J.

I agree _______________________________

H. Sachs J.

R. GORDON J., dissenting

[54] Section 25.4(1) of the Health Professions Procedural Code provides that the Inquiries, Complaints and Reports Committee (ICRC) may 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.

[55] Following notification that Dr. Sharma’s hospital privileges had been suspended at the Scarborough Health Network (SHN), the ICRC imposed conditions and limitations on his membership that effectively prevent him from practicing. It based its findings on: (1) An external review authored by Dr. Robert Smyth at the request of the SHN in which Dr. Smyth reviewed the anesthetic practice of Dr. Sharma including his clinical ability, patient care and interpersonal relationships with colleagues; (2) A report by Dr. Glube concerning an incident on March 1, 2023 in which Dr. Sharma is said to have significantly altered a patient’s anesthesia record to give the patient the appearance of stability when, in fact, she had suffered a period of profound hypoxia with associated heart rate and blood pressure changes; and (3) A report from Dr. Glube concerning an incident on March 6, 2023 in which Dr. Sharma is said to have provided inappropriate care resulting in the patient’s subsequent death, and to have altered the medical record of what transpired during the procedure.

[56] Dr. Smyth’s report was delivered to SHN on December 23, 2022. Although he identified several shortcomings in Dr. Sharma’s relationships with colleagues and staff, along with some deficiencies in patient monitoring and documentation, he determined that: “In terms of his clinical skills, from the charting and interviews, Dr. Sharma seems to provide adequate care…”. Clearly, the contents of the report were not sufficiently serious to warrant immediate action as Dr. Sharma continued to work with full scope of practice pending receipt of his response to the report. It may reasonably be inferred that SHN did not, upon receipt of that report alone, have reason to believe that Dr. Sharma’s actions would expose patients to harm or injury.

[57] What tipped the scale for SHN were the reports of Dr. Glube with respect to the incidents of March 1 and 6. What did or did not happen during those two incidents were of obvious and critical concern both to the hospital and to the ICRC.

[58] To address those concerns, Dr. Sharma provided to the ICRC an independent expert report authored by Dr. Paul Westacott dated May 14, 2023. In his report, Dr. Westacott opined that on both March 1 and 6, Dr. Sharma’s actions met the required standard of care.

[59] Dr. Sharma provided a second expert opinion from Dr. Stuart McCluskey dated May 23, 2023 in which Dr. McCluskey also approved of the care that had been provided.

[60] As Dr. Sharma’s actions or inaction on these dates was critical to the decision of the ICRC, one might have expected some comment or explanation of why the expert opinions were not accepted. Unfortunately, no such comment or explanation was provided. If the two experts are correct, Dr. Sharma’s care was appropriate and it cannot be said that he is likely to place his patients at risk of harm or injury. If the evidence of the two experts could not, for some reason, be accepted it was incumbent upon the ICRC to explain why.

[61] The reasonableness of a decision may be jeopardized where the decision maker has failed to account for the evidence before it. This is all the more so when the decision has a harsh or severe impact on the rights and interests of the person affected. [See Vavilov at paras.126 and133].

[62] There can be no doubt that the decision of the ICRC in this case is particularly severe. Its practical effect is to prevent Dr. Sharma from working in the profession he has served for 17 years. Although the order is interlocutory, it has already been in effect for more than five months and is likely to be many months, perhaps even years, before the matter is determined on a final basis.

[63] The IPRC failed to account for crucial evidence in that it failed to meaningfully grapple with the two expert reports that indicated Dr. Sharma met the standard of care required of him. In these circumstances the decision cannot be said to be reasonable and must be quashed.

R. Gordon J.

Released: October 12, 2023

CITATION: Sharma v. College of Physicians and Surgeons of Ontario, 2023 ONSC 5687

DIVISIONAL COURT FILE NO.: 440/23

DATE: 20231012

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

DR. VIJAY SHARMA

Applicant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

REASONS FOR JUDGMENT

Schabas J.

Released: October 12, 2023