CITATION: Dr. Liberman v. College of Physicians and Surgeons, 2010 ONSC 337
DIVISIONAL COURT FILE NO.: 5/10
DATE: 20100112 AND 20100113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS J.
BETWEEN:
DR. BRUCE LIBERMAN Applicant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
Michael B. Fraleigh and Meagan J. Swan, for the Applicant
Brian Gover and Paul Jonathan Saguil, for the Respondent
HEARD at Toronto: January 12 & 13, 2010
JENNINGS J. (ORALLY)
Overview
[1] Dr. Liberman applies under s.6(2) of the Judicial Review Procedures Act (the Act) for an order quashing an interim order made by the Inquiries, Complaints and Reports Committee (the Committee) of the College of Physicians and Surgeons of Ontario (the College) on December 15, 2009.
[2] Dr. Liberman is an anesthesiologist. He obtained his fellowship in 1985. Since 1998 he has practised in private cosmetic and dental surgical clinics. On September 20, 2007, Dr. Liberman administered anesthesia to a patient, Ms. S. who died following a liposuction procedure performed upon her by Dr. Yazdanfar at the Doctor’s facility, the Toronto Cosmetic Clinic.
[3] On November 20, 2009, a complaint against Dr. Liberman filed as a result of the death of Ms. S., was referred by the Committee to the Discipline Committee of the College. Dr. Liberman was charged with professional misconduct and incompetence. After notice to Dr. Liberman to which he responded with submissions, an interim order was made under s.37(2) of the Health Professions Procedural Code (the Code). The order prohibited Dr. Liberman from performing anesthesia, except in a hospital under the supervision of a certified anesthetist. Because of the nature of his practice Dr. Liberman does not have hospital privileges. It is not disputed that the effect of the interim order was to shut down Dr. Liberman’s practice.
Threshold Issue
[4] To bring an application for judicial review under s.6(2) of the Act before a single judge it must be shown that there is urgency and that delay required to apply to the Divisional Court for a hearing before a panel is likely to involve a failure of justice.
[5] For all practical purposes Dr. Liberman is unable to practice. He cannot earn his livelihood. Between now and whenever the complaint is heard, the practice he has built up is likely to be dissipated. In effect, he is now experiencing prior to his hearing the heaviest sanction that could be imposed upon him if he is ultimately found guilty of incompetence and misconduct.
[6] Accordingly, counsel agree that the pre-conditions in s.6(2) are met. Leave is granted to bring this application before me in this Court.
[7] Because of the importance of the matter to the applicant I undertook to counsel to consider the matter overnight and deliver my judgment this morning. For that reason, what follows does not do justice to the able and helpful submissions of Mr. Fraleigh and Mr. Gover for which I am most grateful.
Standard of Review
[8] The parties agree that the standard of review is reasonableness. They both refer in their facta to the same passage in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190 para. 47, which directs that in review for reasonableness I should be concerned “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law.”
[9] In applying the reasonableness standard, I am not to retry the matter, but may only determine whether there was some evidence before the Committee that can justify its decision. See Mohan v. College of Physicians and Surgeons (1991) 1991 8328 (ON SC), 81 D.L.R. (4th) 108 and Markham v. College of Physicians and Surgeons (Div. Ct.) January 6, 1998 (unreported).
Section 37 Orders
[10] To make an order under s.37, the Committee must be of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.
[11] I am conscious that in making orders under s.37, the Committee is carrying out its vital and overriding responsibility of protecting the public. See Code s.3(2) and Pharmascience v. Binet [2006] S.C.R. 513.
[12] That said, it is trite to say that the Committee’s opinion of the likelihood of harm ensuing must be based upon the evidence before it.
Issue
[13] The issue to be determined is whether on the record before the Committee there was some evidence to support the opinion that Dr. Liberman’s conduct exposes or is likely to expose his patients to harm or injury.
The Evidence
[14] After practising emergency medicine in a hospital setting for thirteen years, Dr. Liberman has for the next eleven years practised as an anesthetist. He has in that time administered approximately 50,000 general anesthetics. Apart from the pending complaint, he has not been the subject of either complaint or investigation relating to his practice of anesthesia. Specifically, no complaints have been received since the Ms. S. case twenty-eight months ago.
[15] Following receipt of the complaint, the College retained an anesthetist, Dr. Jaeger, to review Ms. S.’s patient record and provide an opinion as to whether Dr. Liberman met the standard of practice. Dr. Jaeger received her fellowship in 1997. She is a member of the Department of Anesthesiology at Queen’s University, Kingston and is currently a program director with that department.
[16] Dr. Jaeger opined that Dr. Liberman did not in the case reviewed by her meet the standard of practice because he failed to recognize and properly treat post-operational hypovolemic shock.
[17] Dr. Jaeger was asked to express an opinion on the issue before the Committee; whether “Dr. Liberman’s clinical practice, behaviour or conduct exposes or is likely to expose his patient to harm or injury.” In her report she replied, “I am unable to answer this question with only one patient chart to review. The fact remains, however, that his clinical practice was below the standard of care in (sic) this patient and did contribute to her ultimate demise”. (See Record, pages 39 & 40).
[18] On November 27, 2007, the College began an investigation under s.75 of the Code to determine whether Dr. Liberman had committed an act of professional misconduct or was incompetent. The College appointed Dr. Kulchyk as a Medical Inspector to review Dr. Liberman’s practice and to analyze fifty-five randomly selected patient files. Dr. Kulchyk has practised as an anesthetist at the Toronto East General Hospital since 1994. He was asked to opine on the standard of care and specifically does “Dr. Liberman’s clinical practice, behaviour or conduct expose or is likely to expose his patients to harm or injury.” Having found that in those 55 cases there were charting issues in 3 of them that fell below the standard of care, Dr. Kulchyk concluded his report as follows:
From the information I have (charts only) the patients recoveries from anesthesia have been uneventful and the patients have been stable at all times. The patients in the charts reviewed have not been exposed to any risk of harm beyond what is expected from care provided by a competent anesthesiologist. Overall Dr. Liberman’s clinical practice, behaviour and conduct meet the standard of care. Dr. Liberman does need to have it reinforced that documentation of both ASA physical status and the first vital signs in the Recovery Room Period are required elements of a complete Anesthetic chart and that failure to document both the ASA physical status and the first Recovery Room vital sign does constitute a breach of the standards of care and more importantly, it requires the assumption that transfer of care occurred in an acceptably stable patient and in an acceptable manner. (See Record, page 55)
[19] Dr. Kulchyk did not review Ms. S.’s file but he did question Dr. Liberman under oath about his involvement with Ms. S. His opinion and report were delivered subsequent to that examination.
[20] In response to an invitation from the Committee for submissions, Dr. Liberman submitted evidence including the expert opinion evidence of two anesthetists.
[21] Dr. John Cain received his fellowship in anesthesia in 1981. He is presently head of the Department of Anesthesiology at Queen’s University, Faculty of Health Sciences, Kingston. He reviewed Ms. S.’s chart, and all the charts reviewed by Dr. Kulchyk. He was asked if he was “of the opinion that Dr. Liberman’s clinical practice, behaviour and conduct expose or is likely to expose his patients to harm or injury.” He responded in his report as follows:
Dr. Liberman initially treated Krista Stryland’s (Ms. S.) transient hypotension with crystalloid intravenous solutions, this was appropriate. His management of Krista from the initial period in the recovery room was acceptable.
When Krista has a marked drop in blood pressure plus a rise in heart rate with a loss of consciousness, Dr. L. (Liberman) proceeded to intubate her, control her ventilation, establish additional intravenous lines, catheterized her and bolused more ringers lactate solution. This was acceptable.
As Krista reportedly responded quickly with a rise in blood pressure and a return of consciousness the delay in calling 911 and transferring her to NYGH is understandable but unfortunate.
An earlier transfer would have allowed the use of blood, blood products and the infusion of sympatomimetics to support Krista’s blood pressure and treat her coagulopathy and severe anemia. Dr. Liberman’s medical care during this period meets the standards of care of the profession. I note however, that there are documentation issues both in Dr. Liberman’s care rendered to Krista Stryland and as noted by Dr. Kulcyk in his chart review of Dr. Liberman’s cases.
In reviewing the care rendered by Dr. Liberman to Krista Stryland and in the care rendered in the anesthetic records of the cases reviewed by Mr. Kulcyk, I am of the opinion that Dr. Liberman’s clinical practice, behaviour and conduct does not expose nor is likely to expose his patients to harm or injury. (Emphasis in original). (See Record, page 118)
[22] Dr. George Dyke also received his fellowship in anesthesia in 1981. He has served as Chief of Anesthesia at Credit Valley Hospital and has practised anesthesia since 1985. He was asked to review Dr. Kulchyk’s report. He agreed that there were no examples of bad outcome from any of the cases reviewed, but he agreed with Dr. Kulchyk that there were incidents of below standard charting. He was asked to review Dr. Jaeger’s report. He disagreed with Dr. Jaeger’s comments on Dr. Liberman’s post-operative care of Ms. S. He answered two questions in his written report as follows:
[23] Questions:
- Does Dr. Liberman’s care display a lack of knowledge, skill or judgment or disregard for the welfare of his patient?
Dr. Liberman did demonstrate knowledge, skill, judgment and regard for his patients by continuing to treat her (sic) hypovolemic state with all his available resources – fluids and oxygenation. Faced with inadequate resources and continued escalation of bleeding, he sought outside assistance for his patient.
- Are you of the opinion that Dr. Liberman’s clinical practice, behaviour or conduct exposes or is likely to expose his patients to harm or injury?
Dr. Liberman’s practice and behaviour in this situation met the standard of practice within the restraints of the environment and resources available. There is nothing to suggest that his clinical practice, behaviour or conduct exposes or is likely to expose his patients to harm or injury.
(See Record, page 135)
[24] Dr. Liberman filed additional reports and letters from doctors, dentists and nurses with whom he had practised, all of which spoke extremely favourably of his skills as an anesthetist and his incident-free record of practice when involved with them. (See Record, pages 136-156).
[25] On this evidence, the applicant submits that there was no foundation for the Committee’s opinion of potential harm. Adopting the words used by the Court in Mohan (op. cit.) the appellant says there must be evidence of a “probable exposure to harm” and not mere speculation of harm.
[26] The respondent submits that there is on the record some evidence of potential harm. Given that I may not re-try this case, that deference is due to a panel of doctors deciding a matter squarely within their expertise and in the exercise of their obligation to protect the public interest, that the order under review is interim only, made on a summary procedure and is therefore to be considered tolerantly (see Mohan) there was a tenable basis for the decision and it was within the range of what was reasonable. I fully agree with Mr. Gover’s submissions as to my role as the reviewing judge and as to the conditions governing my review of this s.37 order.
Analysis
[27] Mr. Gover submitted that the Committee had before it a record of some 1,700 pages which it had to review to arrive at its decision and make the interim order that it did. That is true. However, in the wealth of material to which I was referred, I was referred to no evidence that directly addressed the issue of likely harm, other than the medical opinions which I have summarized in these reasons.
[28] Of the two experts retained by the College, one (quite properly in my opinion) stated that she could not answer the question of whether potential harm would likely result from Dr. Liberman’s practice based on her review of only one chart. I accept Mr. Fraleigh’s submissions that to base such an opinion on one incident out of thousands would tend to make a s.37 order automatic between charge and hearing. The other expert who reviewed 55 files (but not that of Ms. S.) opined there would be no harm.
[29] Two experts whose opinions were obtained on behalf of Dr. Liberman were firmly of the opinion that there was no risk of exposure to harm.
[30] It is clear that the Committee was at liberty to accept some evidence and reject other evidence, and to prefer one expert opinion over another. That said, the Committee gave no explanation for rejecting the opinion of its own Medical Examiner on the core issue that it was to decide. Further, having concluded that Dr. Liberman’s conduct is likely to expose his patients to harm, the Committee dealt with the detailed report of Drs. Cain and Dyke by merely acknowledging that they were enclosed with Dr. Liberman’s submissions and that everything submitted by Dr. Liberman was carefully considered (See Record, page 27). In my opinion, in a case such as this where there was no direct evidence to support the Committee’s decision, it was encumbent upon the Committee to give some explanation however brief for rejecting all of the evidence that was contrary to its conclusion.
[31] There was much reference by counsel to the decision of a panel of the Divisional Court in Yazdanfar v. College of Physicians and Surgeons, June 15, 2009, No. 573/08.
[32] Dr. Yazdanfar was the surgeon who performed liposuction on Ms. S. with Dr. Liberman acting as the anesthetist. A complaint was received against her apparently shortly before the complaint against Dr. Liberman. Charges were subsequently laid and an interim order under s.37 pronounced. I was told by counsel that her disciplinary hearing is presently underway. In its decision, the Divisional Court dismissed Dr. Yazdanfar’s application for judicial review of the Committee’s decision to issue its interim order to cease her practice of liposuction until the hearing. She too submitted that there was no evidence to support the s.37 interim order.
[33] I strongly suspect that decision was the “elephant in this courtroom” on this hearing. However, the case is easily distinguishable. From the Divisional Court’s review of the evidence before the Committee it appears that there was ample evidence to support the order that the Committee made. Here, the evidence to which Mr. Gover has referred is evidence of below standard charting and in the evidence of Dr. Jaeger which is of course contradicted by Dr. Dyke, below standard practice in failing to react to, and properly treat low blood pressure. This is not of itself evidence of probable harm to future patients, nor can it support a reasonable inference.
[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.
[35] Based on my conclusion, it is unnecessary to deal in any detail with two further submissions made by the applicant.
[36] Firstly, the applicant submits there was a denial of procedural fairness by the inclusion in the record before the Committee of three items that were not disclosed to Dr. Liberman by the Committee when it advised him of the material upon which it intended to rely in considering whether a Rule 37 order was to be made. Those items were:
(i) The records of the patient whose procedure followed that of the liposuction given to Ms. S.;
(ii) The profile of Dr. Liberman which referred to three old contacts with the College when he was practising emergency medicine; and
(iii) Transcripts of Dr. Liberman’s evidence taken for use on Dr. Yazdanfar’s Disciplinary hearing.
[37] In its reasons, the Committee referred to items (ii) and (iii) in support of its decision.
[38] Dr. Liberman was not given the opportunity to respond to that material. That was a denial of procedural fairness. (See 1657575 Ontario Inc. v. Hamilton, July 31/08 ONCA 570).
[39] Secondly, the Committee referred to the admissions made by Dr. Liberman in an under-oath examination conducted by Dr. Kulchyk on April 15, 2009 in which Dr. Liberman said that upon reflection and in retrospect he felt he should have called 911 sooner than he did when Ms. S. exhibited low blood pressure.
[40] Dr. Liberman claimed protection of the Ontario Evidence Act in giving that evidence.
[41] Although I was told by counsel there was no case on point, in my opinion the prohibition in s.9(2) of the Evidence Act, R.S.O. 1990, c.E-23 that:
… the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature” applies.
[42] I do not accept that the interview was a procedural matter. I find it to have taken place as part of a proceeding under the Code which itself is part of the Regulated Health Professions Act 1991. The Committee ought not to refer to that evidence in the proceeding taken against Dr. Liberman.
[43] The application must be allowed. The interim order made December 15, 2009 is quashed.
[44] Having considered the submissions of counsel and their draft Bills, costs will be to the applicant fixed at $12,500.00 payable forthwith.
JENNINGS J.
Date of Reasons for Judgment: January 12 & 13, 2010
Date of Release: January 15, 2010
CITATION: Dr. Liberman v. College of Physicians and Surgeons, 2010 ONSC 337
DIVISIONAL COURT FILE NO.: 5/10
DATE: 20100112 AND 20100113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. BRUCE LIBERMAN Applicant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 12 & 13, 2010
Date of Release: January 15, 2010