CITATION: Montour v. Health Professions Appeal and Review Board, 2019 ONSC 3451

DIVISIONAL COURT FILE NO.: DC-17-568-JR DATE: 20190611

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Sachs, D.L. Corbett and M. Edwards JJ.

B E T W E E N:

DR. AMY ANGELA MONTOUR Applicant

• and -

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and J.G. Respondents

Counsel: Valerie Wise and Rozmin Mediratta, for Dr. Montour Steven G. Bosnick, for Health Professions Appeal and Review Board Ruth Ainsworth, for College of Physicians and Surgeons of Ontario

Heard at Toronto: March 20, 2019

DECISION

The Court:

Introduction

[1] The Applicant (“Dr. Montour”) applies for judicial review of the decision of the Health Professions Appeal and Review Board (“HPARB”) dated May 3, 2017 (the “HPARB order”), upholding the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”) dated March 17, 2016 (the “ICRC decision”). The ICRC decision required Dr. Montour to be cautioned in person at the College respecting her failure to attend at the Brantford General Hospital (the “Hospital) to assess a patient, J.G. (the “Patient”) when notified of the Patient’s deteriorating condition.

Summary and Disposition

[2] The decision of the ICRC misstated the medical records. On the basis of those records and the uncontested expert evidence, Dr Montour responded appropriately to the Patient’s medical issues between 5:00 and 5:30 pm on April 17, 2015. The Patient did not “decompensate” after that time and there is no evidence in the medical records that Dr Montour was told otherwise by nursing staff or the Patient’s family. The ICRC’s finding to the contrary, misstating the evidence, is unreasonable. The HPARB’s decision upholding the ICRC was similarly unreasonable in deferring to a finding of fact directly contrary to the evidence. Therefore, for the reasons that follow, the decision of the HPARB is quashed and the decision of the ICRC is set aside.

Background Facts

[3] The Patient had a long history of chronic back pain. She was brought to the Hospital by ambulance at 0538 hours on April 17, 2015. Ambulance attendants obtained a history from the Patient’s family which, in combination with the Patient’s condition, raised concerns about the amount of medication the Patient had taken. The medical records show that the reason for the Hospital visit was recorded as “overdose ingestion”, that is, a drug overdose. An attending doctor filled out a Form 1 under the Mental Health Act to assess the Patient as a suicide risk.

[4] Prior to becoming the responsibility of Dr. Montour, another doctor at the Hospital noted that the Patient had a history of chronic back pain for which she was taking Oxycodone and Ativan. This doctor recorded that the Patient’s pain had been increasing, and so the Patient had been increasing her Oxycodone. The doctor suspected the Patient’s decreased level of consciousness was due to too much narcotic and he ordered Narcan to reverse it. The doctor decided to leave the Form 1 in place so that a psychiatric assessment could “query deliberate drug overdose”. The admitting medical diagnosis was “pain management/failure to cope/query OD”.

[5] Dr. Montour did not assume responsibility as the “most responsible physician” (“MRP”) until 1700 hours. The medical records show six telephone calls between Dr. Montour and various nurses and the Hospital administrator between about 1700 on April 17, 2015 and 0300 on April 18, 2015. Dr. Montour did not attend at the Hospital to assess the Patient in person.

The Medical Records

[6] Between 1650 and 1729, nursing notes reflect the following:

Upon examination pt. (patient) noted to have abnormal flexion to Rt (right) hand, cont’d Ɵ hand strength noted to Rt hand. Difficulty following directions, pt ++ confused. Difficulty noted with swallowing. New orders rec’d by Dr. Montour. Pt awaiting CT.

[7] Dr Montour’s contemporaneous Physician Progress Notes (“Dr. Montour’s notes”) relating to this entry are as follows:

17/4/15 TC from ER nurse at 1710 states abnormal flexion and weakness right hand, patient remains confused – gave order for CT had -/o – CVA.

[8] The nursing notes then reflect that at 1729 the following exchange took place with the Patient’s family:

Spoke with family who state she is more lucid & awake…Family states pt does not wish to have CT scan performed. States (family) that pt is claustrophobic & has had numerous CT scans & at present does not want one. Stated to family that pt’s wishes will be followed. Dr. Montour paged.

[9] The entry of the nursing note at 1729 is reflected in Dr. Montour’s notes as follows:

TC from ER nurse at 1740 – related that family has refused CT as patient has had ++ scans in past, aware of consequences if CVA and not detected.

(CVA is a medical short form of cerebral vascular accident, or in lay terms, stroke).

[10] Between 23.11 and 23.38 the nursing notes contain the following entry:

At 2050 family called writer into bedside stating patient was in ++ pain. Patient appeared comfortable, when writer asked patient her pain level she stated 8/10. Writer asked patient how many mg of Dilaudid she would like - between 2-4 mg, patient stated she would like 4 mg. Dilaudid 4 mg administered. Approximately 30 minutes later family came to nurses’ station requesting the on-call MD come to assess patient and transfer her to Hamilton General. Since this request was new to writer the family was asked for more information as to request. The family stated that they knew doctors in Hamilton and that she needed to go there immediately. The patient’s son stated that he was calling his lawyer to have this Hospital sued. Care Leader Tiffany called and made aware of situation developing and she came to the floor. Call made to hospitalist on-call Dr. A. Montour who ordered an additional Dilaudid 1 mg PO q2h PRN… Writer in to assess patient’s pain at 2330, patient stated she was in no pain, refused PRN pain medication. Patient currently resting comfortably, appears to be sleeping, husband at bedside. No new issues or concerns. Will continue to monitor.

[11] This interaction between the attending nurse and the Patient and her family at 2050 is reflected in Dr. Montour’s notes as follows:

TC from Kaleigh – nurse on B6 at 2050 – relayed family demanding transfer to HGH immediately. Son threatening to call lawyer and have lawsuit against caregivers here, requested I speak with son. Patient’s daughter came on phone and stated patient in ‘excruciating pain’ and was given a little Dilaudid but only Tylenol for breakthrough. Demanding immediate transfer to HGH to be cared for by internist and Doctor Klurfan. DW (Discussed with patient) I do not know patient and would need medical reason to transfer patient, patient has had no imaging so difficult to convince specialists. Can arrange for transfer in a.m. Daughter asked for increased pain meds. Spoke with Kaleigh again – stated patient sleeping and pain assessment did not indicate patient in distress. Gave order to have dilaudid 1 mg po BT q 2h in addition to 4 mg po q 4h scheduled dose.

[12] Dr. Montour’s progress notes reflect a further telephone call with the nurse at the hospital as follows:

TC from Kaleigh again at 2150 – son demanding to speak with me. As per nursing pain assessment remains comfortable and not in distress….

[13] The progress notes of Dr. Montour then reflect discussions between herself and the Patient’s son relating to the family’s demand that the Patient be transferred to a hospital in Hamilton. Dr. Montour’s notes reflect that she spoke with the hospital administrator on call, and that Dr. Montour had a further discussion with the nursing staff responsible for the Patient. In that regard, Dr. Montour’s progress note reflects that she had a discussion with the hospital administrator as follows:

…called me back at 2300 and stated daughter agreed with nursing assessment that patient is comfortable and willing to wait until a.m. to discuss further transport to HGH.

[14] Nursing notes for the period 2311 to 2338 correspond to Dr. Montour’s notes at 2300 and state as follows:

…Writer called Dr. Montour again and she spoke with both son and daughter. Dr. Montour notified Administrator on-call Beverly Thompson who then spoke with both son and daughter…. Writer in to assess patient’s pain at 2330, patient stated she was in no pain, refused PRN pain medication. Patient currently resting comfortably, appears to be sleeping, husband at bedside. No new issues or concerns, will continue to monitor.

[15] The hospital administrator prepared a clinical note that covers the period 2313 to 2317, which reads:

Writer spoke to daughter of J. who is very concerned that the patient be followed by the spinal cord injury program with which she was previously associated in Hamilton. Daughter confirmed that J. is resting comfortably at the moment. This was confirmed by the primary nurse. Writer also discussed the patient with Dr. Montour who agreed that at this time there is no indication for an urgent transfer. Writer agreed to follow up with the Hospitalist tomorrow morning regarding the family request to have the patient transferred to Hamilton for further follow up.

[16] The last entry in Dr. Montour’s notes prior to the Patient leaving the hospital are at 0250, when Dr. Montour received a telephone call from a nurse::

0250 TC from Kaleigh that OPT (an ambulance service) had been called by family to transport patient to HGH. I stated that I could not authorize this as I did not have a medical reason to transport patient. Had not talked to receiving physician and patient should not leave as on Form 1. Nurse relayed family currently speaking with administrator.

[17] The last nursing note of significance was prepared by the attending nurse between 0024 and 0032 on the morning of April 18, 2015:

Writer in to do pain assessment at 2330. Patient stated she was in no pain. Was asked if she would like pain medication and patient refused. At 0010 husband stated patient was feeling ++ anxious and required Ativan. Ativan is currently on hold. Patient’s husband demanded writer call MD on call. Writer (i.e. the attending nurse) in to assess patient, patient sleeping at this time. Writer woke patient and asked if she was in any pain, patient denied being in pain. Writer asked patient if she was feeling any anxiety, patient denied feeling anxious. Writer asked patient if there was anything that she required at this time and patient said no. Writer then explained to husband that patient is alert and oriented, and stated she is not feeling anxious, therefore the MD would not be called at this time.

[18] What then followed after the telephone call between the nurse and Dr. Montour, as reflected in Dr. Montour’s progress notes at 0250, is a visit by the Patient’s husband to the nursing station that resulted in the nurse preparing the following nursing note between 0345 and 0449 :

Patient’s husband up to nursing station at 0240 to notify writer that patient was experiencing pain. Writer in to assess patient, patient stated she would like some breakthrough pain medicine. Writer administered 4 mg of Dilaudid. Upon exiting the room OPT was waiting outside room. Patient’s family stated that they were taking her to the Hamilton General…

[19] The Patient was then taken by the OPT to the Hamilton General Hospital.

The Patient’s Complaint to the College

[20] On May 20, 2015, the Patient sent an email to the College concerning the treatment that she received in the Hospital’s emergency room by someone other than Dr Montour. This complaint was then followed up with a letter dated July 21, 2015 to the College relating to Dr. Montour, and specifically an allegation that Dr. Montour “did not examine me, observe me or request that any other physician do so.” It was this complaint that was dealt with by the ICRC in the case before us.

The Decision of the ICRC

[21] In coming to the decision that it did, the ICRC had available to it the medical records from the hospital as well as information supplied by the Patient and her family, information supplied by Dr. Montour, and a report from Dr. Gee, an expert retained by Dr. Montour. The medical records reviewed by the ICRC included the extracts referred to above.

[22] There were a number of complaints made by the Patient that the ICRC rejected. Ultimately, after reviewing the information before it, the ICRC came to the following conclusion:

Based on all of the above, the Committee has determined that the appropriate disposition is to require Dr. Montour to attend at the College to be cautioned in person with respect to failing to attend at the hospital and assess a patient that was decompensating. [Emphasis added.]

[23] In coming to the conclusion that it did, the ICRC stated:

The Committee considered the following points in reaching its decision:

• With respect to [the Patient]’s concern that Dr. Montour failed to assess or examine her, the Committee has grave concerns about the fact that Dr. Montour did not attend at the hospital even after she was notified of Ms. G’s deteriorating condition and the family’s level of concern, both of which are well documented in the medical record.

• The record indicates that, while [the Patient]’s condition had improved at 3:30 p.m. (when Dr. Kugathasan assessed her), at 4:50 p.m. she was experiencing weakness in her hand, was confused, and had difficulty swallowing. At 5:17 p.m. she had severe weakness in both arms and slurred speech, and by 11:30 p.m. was ‘in crushing pain’.

• Dr. Montour was paged six times regarding [the Patient]’s decompensation, however for whatever reason, she did not come in to the hospital to either assess or examine her. In the Committee’s view, this is not acceptable, and shows a serious lack in judgment. A patient with progressive neurological changes should be assessed in a timely manner.

• We note that even Dr. Gee recommended in his report that Dr. Montour improve her communication skills and consider a more physical presence, even if there was no medical necessity (which in our view there was in this case, given the progressive findings in the record), for no other reason than to simply reassure the patient’s family. [Emphasis added.]

[24] In short, the ICRC concluded that Dr. Montour ‘s conduct in failing to come in to assess the Patient after having been contacted on six separate occasions by the hospital nursing staff with respect to the patient’s deteriorating condition merited a caution. In coming to this conclusion, the ICRC noted that the Patient was in “crushing pain” and had “progressive neurological changes”. As the ICRC stated in its decision:

A caution in person arises when the Committee is concerned about an aspect of a physician’s care or professional conduct, and believes that the physician would benefit from direction provided in person about the issues raised. It is also intended to protect the public interest, and a summary of the decision will appear on the College’s public register. At Dr. Montour’s attendance at the College, Committee members will provide direction to her about steps that the Committee believes she must take in order to avoid future difficulties.

The HPARB Decision

[25] Dr. Montour requested a review of the ICRC decision, asserting that the investigation by the College was inadequate, and that the disposition by the ICRC was unreasonable. With respect to the adequacy of the investigation, the HPARB held that an adequate investigation need not be exhaustive, and that the significant medical information in the record was such that various witness statements, which Dr. Montour suggested should have been obtained by the ICRC, would not have provided additional medical information.

[26] With respect to the reasonableness of the ICRC decision, the HPARB determined that the ICRC’s conclusions were reasonable because of the following: the ICRC reviewed each of the Patient’s specific concerns and canvassed the medical record upon which it based its “grave concern” about Dr. Montour not attending at the hospital; the ICRC had an expert opinion from another physician that an attendance in person, in the circumstances, would have been appropriate; and the ICRC reasonably found that not attending at the hospital to assess the Patient after being paged six times showed a serious lack of judgment. The HPARB also determined that, given the nature of its concerns, it was reasonable for the ICRC to require Dr. Montour to attend the College to be cautioned.

The Issues

[27] Dr. Montour raises the following issues:

1. Was the decision of the HPARB upholding the ICRC decision reasonable?

2. Was the decision of the HPARB on the adequacy of the investigation by the ICRC reasonable?; and

3. Was the decision of the HPARB procedurally fair?

In view of our conclusion on the first issue, we have not found it necessary to address the second and third issues.

Standard of Review

[28] The standard of review of the HPARB order is reasonableness (see McKee v. Health Professions Appeal and Review Board, para. 29). While this is not a judicial review of the ICRC decision, this court will consider the reasonableness of the underlying ICRC decision to determine the reasonableness of the HPARB order (see Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297 (Div. Ct.), para. 11).

Position of Dr. Montour

[29] Dr. Montour argues that the ICRC decision contains palpable and overriding errors. The medical records show that the Patient’s condition was stable, not decompensating. The ICRC’s conclusion to the contrary is unreasonable. This unreasonable finding of fact is so fundamental to the ICRC decision that it renders the decision unreasonable.

[30] Dr. Montour also argues that the ICRC unreasonably misinterpreted the only expert evidence before it as an opinion that supported the ICRC decision to caution Dr. Montour. In fact, the expert opined that Dr. Montour’s treatment of the Patient met the required standard of care.

[31] Dr. Montour argues that the HPARB unreasonably deferred to the ICRC decision by failing to find that the ICRC unreasonably found that the Patient’s condition was decompensating, and unreasonably found that the expert opinion evidence supported their disposition of the case. Therefore, Dr. Montour argues, the HPARB order is unreasonable.

Position of the HPARB

[32] The HPARB argues that its decision that the ICRC decision was reasonable was itself reasonable. It submits that the HPARB listened to the detailed submissions made on behalf of Dr. Montour about the medical records and evaluated her claims that the ICRC made improper findings of credibility. HPARB argues that it found that the ICRC decision was based on the medical records, and the ICRC’s conclusions were reasonable because the medical records supported the finding that the nursing staff at the hospital had paged Dr. Montour throughout the night, and that Dr. Montour did not attend at the hospital to personally assess the patient. As such, it is argued that the HPARB determined that the ICRC’s conclusions were reasonable and entitled to deference.

[33] From a factual perspective, it was argued that the evidence before the HPARB included a discharge summary that made reference to the Patient experiencing “crushing pain”, information that would have been communicated to Dr. Montour and that should have caused her to come into the hospital to personally examine the Patient.

Position of the College

[34] The College argues that the decision of the HPARB upholding the decision of the ICRC was reasonable. It submits that it is improper for Dr. Montour to invite this court to subject decisions of the ICRC and the HPARB to painstaking scrutiny. According to the College, the issues that Dr. Montour raises in this court with respect to the decision of the ICRC were thoroughly addressed by the HPARB and it reasonably rejected her arguments.

[35] The College submits that the minute parsing of the decisions by Dr. Montour for errors ignores that the HPARB reasonably concluded that the ICRC’s core concerns were squarely supported by the documentary record and, in light of this, the HPARB reasonably deferred to the ICRC.

[36] The College also argues that there was no misinterpretation of the expert evidence, and that the HPARB reasonably concluded that the opinion of the expert on this issue supported the decision of the ICRC that Dr. Montour’s care fell below the standard of practice. It was reasonable for the HPARB to uphold the decision of the ICRC to caution Dr. Montour and the ICRC was entitled to rely on its own expertise in coming to this conclusion. The ICRC gave reasons for why it reached the conclusion that it was not only “preferable” for Dr. Montour to attend at the hospital in person (adopting the words of Dr. Montour’s expert), but it was also medically necessary, and, as such, the decision of the HPARB is entitled to deference.

Analysis

[37] According to the College, the decision of the HPARB and thus the decision of the ICRC was entirely reasonable as the evidence establishes that the Patient’s condition, as communicated to Dr. Montour, had deteriorated from earlier in the day and this more than warranted Dr. Montour coming into the hospital to assess for herself the patient’s medical status.

[38] The question this court must address is whether it was reasonable for the HPARB to conclude that the decision of the ICRC was reasonable. This requires determining whether the “decision making process” discloses the existence of justification, transparency and intelligibility and whether the decision itself “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47).

[39] In coming to the decision that it did, the HPARB found that the decision of the ICRC was reasonable for the following reasons:

The Committee canvassed the medical record, which in its view, supported that the nursing staff was paging the Applicant throughout the night, whether to address the family’s concerns, in response to the Respondent’s increasing pain, or due to changing physical symptoms. The medical record reflected that at no time did the Applicant attend at the hospital to personally assess the Respondent.

[40] If the ICRC’s review of the medical records had accurately reflected what was in those records, then we would have found that it was reasonable for the HPARB to uphold the ICRC decision. However, we have concluded that the ICRC fundamentally erred in its review of the medical record for the following reasons:

1. The analysis and conclusions of the ICRC reflect that at 5:17 p.m. the Patient had severe weakness in both arms and slurred speech. Nowhere in the medical record is there a clinical note made by any of the attending nurses, doctors, or other medical personnel, that the patient at 5:17 p.m. was found to have severe weakness in both arms and slurred speech.

2. The analysis and conclusions of the ICRC reflect that “by 11:03 p.m. (the Patient) was in ‘crushing pain’”. There is no notation in any of the medical records prepared by the nursing staff, medical personnel, or Dr. Montour, that the Patient was in crushing pain.

3. While the medical records do confirm that Dr. Montour was paged on six occasions, the medical records do not reflect - as suggested in the analysis and conclusions of the ICRC - that when Dr. Montour was paged on those six occasions, it was regarding the Patient’s “decompensation”. The analysis and conclusions of the ICRC further reflect that the Patient had “progressive neurological changes” that should have been assessed in a timely manner. Simply stated, the medical records prepared by the attending nurses, medical personnel, and Dr. Montour, do not reflect, as suggested in the analysis and conclusions of the ICRC, that the patient was decompensating, or that she had progressive neurological changes. The only information that the Patient was deteriorating was shortly after 5 p.m. Dr. Montour’s response was to order a CT scan. The Patient and her family declined the test, as they were entitled to do. The Patient was monitored thereafter and there were no signs of further deterioration related to the symptoms reported at approximately 5 p.m.; that situation appeared to be stabilized. The expert retained by Dr. Montour opined that Dr. Montour responded appropriately to the information she was provided at around 5p.m., and opined that the ongoing monitoring of the Patient, after the CT scan was refused, was the appropriate course of treatment. Thereafter, the Patient’s condition was stable and seemed to improve: Dr. Montour was told that the Patient was sleeping and seemed to be resting comfortably.

[41] If an analysis of the medical records conducted by the ICRC reflected that Dr. Montour had been paged on six separate occasions concerning the Patient’s decompensation, and that she had progressive neurological changes, it would have been reasonable for the ICRC to reach the conclusion that it did; that Dr. Montour should have attended at the hospital in order to assess a patient who was decompensating. It was unreasonable for the ICRC to arrive at the conclusions that it did when the facts as it found them are not borne out from a review of the medical records. As such, the decision of the ICRC to require Dr. Montour to attend at the College for a caution is no longer defensible in terms of the facts and the law. In short, it is unreasonable.

[42] The suggestion made by counsel for HPARB that there was evidence that the Patient was experiencing “crushing pain” that would have mandated a personal attendance by Dr Montour to assess the Patient is not grounded in the evidence for a number of reasons. The reference to “crushing pain” is found in a discharge summary that the HPARB did not have before it when it rendered its decision. More important, the contemporaneous nursing notes contain no reference in to “crushing pain”. This raises the distinct probability that the discharge summary is not accurate. If it is accurate, there is no evidence that Dr. Montour was ever told that the Patient was experiencing “crushing pain.” On the contrary, the records show that Dr Montour was told that the Patient was resting comfortably. In the absence of evidence that Dr Montour was ever told of this pain, it is unreasonable to conclude that Dr. Montour should have attended at the hospital to deal with it.

[43] It is true, as the HPARB found, that Dr. Montour was paged six times regarding the Patient. However, many of the calls that Dr Montour received from the nursing and hospital staff related not to the Patient’s medical condition, but rather to the complaints of the Patient’s family and their demand that she be transferred to another hospital. The Patient, herself a retired nurse, wanted to be transferred to Hamilton, where there were doctors following her case. Dr. Montour could not grant this request in the absence of either a medical requirement for the move (which did not exist) or a request for the patient from the receiving hospital (which, as Dr. Montour made clear, could be arranged the following day if a doctor at the Hamilton hospital wanted the Patient moved there.)

[44] To summarize, the HPARB found that the decision of the ICRC was reasonable because of the ICRC’s review of the medical records and subsequent findings that Dr. Montour had been paged on six separate occasions concerning the patient’s increased pain and deteriorating physical symptoms. That conclusion is simply not borne out by the medical records. Thus, the decision of the HPARB upheld a decision of the ICRC that fundamentally misconstrued the facts in a manner inconsistent with the contemporaneous medical records. Therefore the decision of the HPARB was not reasonable.

[45] Usually in a successful judicial review the matter is remitted back to the tribunal below, in this case the HPARB. There is no point in doing that here. On the basis of the court’s decision, the HPARB would be bound to set aside the decision of the ICRC. Rather, the practical thing to do is to quash the decision of the HPARB and set aside the decision of the ICRC. It is so ordered.

[46] Having reached this conclusion, it is not necessary to address the other issues raised by Dr Montour.

Costs

[47] Dr. Montour shall have her costs on a partial indemnity basis, fixed at $14,000, inclusive, payable by the College. There shall be no costs payable to or by HPARB.

H. Sachs J.

D.L. Corbett J.

M. Edwards J.

Date of Release: June 11, 2019

CITATION: Montour v. Health Professions Appeal and Review Board, 2019 ONSC 3451 DIVISIONAL COURT FILE NO.: DC-17-568-JR DATE: 20190611

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Sachs, D.L. Corbett and M. Edwards JJ.

BETWEEN:

DR. AMY ANGELA MONTOUR Applicant

– and –

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and J. GALLACHER Respondents

DECISION

Date of Release: June 11, 2019