2021 ONSC 5959
DIVISIONAL COURT FILE NO.: 070/21
DATE: 20210915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Tzimas, Kristjanson, and Favreau JJ.
BETWEEN:
SAMMY VAIDYANATHAN,
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Jeffrey E. Feiner and Hilary A. Brown, for the Appellant
Peter Wardle and Evan Rankin, for the Respondent
HEARD at Toronto (via videoconference): June 23, 2021
NOTICE OF PUBLICATION BAN
In the College of Physicians and Surgeons of Ontario and Dr. Sammy Vaidyananthan, this is notice that the Discipline Committee ordered that no person shall publish or broadcast the identity, the name or any information that would identify patients referred to orally or in exhibits at the hearing, and the name or any information that would identify the person identified as “Nurse “A” in these proceedings, under subsection 45(3) of the Health Professions Proedural Code (the “Code”), which is Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1999, c. 18, as amended.
Subsection 93(1) of the Code, which is concerned with failure to comply with these orders, reads:
Every person who contravenes an order made under … section 45 and 47 … is guilty of an offence and on conviction is liable,
(a) In the case of an individual to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence; or
(b) In the case of a corporation to a fine of not more than $50,000 for a first offence and not more than $200,000, for a second or subsequent offence.
ENDORSEMENT
Introduction
[1] The Appellant, Dr. Vaidyananthan, seeks to appeal the order of the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the Committee”) dated January 4, 2021, which imposed terms, conditions, and limitations on his certificate of registration, including a general prohibition on the prescribing and administration of controlled substances, and a 12-month suspension.
[2] He argues that the Committee erred both in its departure from the parties’ joint submission on the appropriate penalty and in relation to the imposition of a 12-month suspension. He therefore asks this Court to vary the penalty so as to realign it with the terms of the original joint submission. He also asks this Court to substitute and reduce the 12-month suspension to a period of only 6 months.
[3] The Respondent, the College of Physicians and Surgeons of Ontario (“the College”) asks that the appeal be dismissed. It argues that the Committee did not err in principle when it departed from the terms of the parties’ joint submission on the appropriate penalty. It also did not commit any palpable or overriding error or error in principle in its imposition of a 12-month suspension. In the College’s view, the Committee’s decision is well-reasoned, it reflects the evidence before it, it is proportionate to the misconduct, it is consistent with similar cases, and it achieves the established penalty principles.
[4] Dr. Vaidyananthan also sought to adduce fresh evidence in his appeal. That evidence consisted of an expert report by Dr. John Foote purporting to speak to the implications of a general prohibition on prescribing and the differentiation between prescribing and administering controlled substances. The motion also included three affidavits from clinical supervisors who were tasked with the supervision of the doctor after his failures to meet the standard of care were discovered. The purpose of these affidavits was to demonstrate Dr. Vaidyananthan’s “significant remediation” to his emergency practice generally and his prescribing practices, specifically.
[5] The College opposed the motion on two grounds. For Dr. Foote’s report, the College contended that the evidence could have been adduced at the time of the hearing but was not. In any event the report would not have made a difference because it does not address how the public would be protected in an emergency setting from any inappropriate prescribing or administering of controlled substances. For the three affidavits, the College submitted that they would not have had any decisive impact, or any impact at all on the Committee’s decision.
[6] For the reasons that follow, I conclude that the Committee did not err in its departure from the parties’ joint submission as that concerned Dr. Vaidyananthan’s prescription and administration privileges. Dr. Vaidyananthan was given notice of the Committee’s discomfort with the joint submission and offered the parties the opportunity both with written submissions and then with a supplementary hearing to respond to its concerns. On the suspension period, there was no joint submission; the Committee preferred the College’s proposal over that of Dr. Vaidyananthan.
[7] While severe and pronounced, neither the general prohibition nor the suspension period can be said to be clearly unfit to Dr. Vaidyananthan’s circumstances. The Committee’s reasons demonstrate a very deliberate consideration of the appropriate penalty and a clear explanation as to why it concluded that nothing short of a general prohibition against the prescription of narcotics and controlled substances would protect the public. Accordingly, the penalty imposed is to be afforded deference.
[8] The motion to adduce fresh evidence is dismissed. Given the concerns of the Committee, separate and apart from the issue of the timeliness of at least some of the proposed evidence, none of the proposed evidence would have made a difference to the Committee’s penalty analysis. Declining to admit the proposed evidence will therefore not result in a “substantial injustice”, see Sengmueller v. Sengmueller (1994)1994 8711 (ON CA), 17 O.R. (3d) 208.
Background
[9] Dr. Valdyananthan is a 41-year-old physician. He obtained his certificate of registration in 2010 and proceeded to practice emergency medicine in hospital, at Humber River Hospital and at the Niagara Regional Health Centre. He also practiced in walk-in and episodic care clinics outside a hospital.
[10] On January 9, 2020, the College issued a Notice of Hearing alleging that Dr. Vaidyananthan engaged in professional misconduct and incompetence and the hearing took place on July 13, 2020.
[11] At the hearing, the parties filed an Agreed Statement of Facts and Admission (Liability) dated July 13, 2020 which contained admissions regarding numerous instances of professional misconduct and spanning over a period of almost ten years. Highlights of the admissions were as follows:
a. Ten instances of self-treatment and billing OHIP while on shift in the emergency departments of two hospitals;
b. Misrepresentations and misleading information to the effect that other physicians on shift in emergency treated him;
c. Inappropriate and unprofessional behaviour at Humber River Hospital, including sleeping on a mobile stretcher intended only for patient use, using a mobile computer to watch YouTube videos, inappropriate communications to staff about cleaning, and aggressive and intimidating language directed to a nurse, with whom he was previously in a romantic relationship;
d. Providing incomplete and inaccurate information to the College in his 2016 and 2017 Annual Renewal forms;
e. Failure to maintain the standard of practice both in his in-hospital emergency medicine and his clinical practice, thereby exposing his patients to potential harm. Specific investigations were undertaken in response to a complaint in 2018 that raised concerns about Dr. Vaidyananthan’s prescription of narcotics;
f. For Dr. Vaidyananthan’s in-house emergency practice, the investigating expert, also a physician, expressed “significant concerns with this physician’s reckless prescription of opioids and in some cases, sedative agents” and concluded that patients were exposed to potential harm. He expressed specific concern with Dr. Vaidyananthan’s lack of knowledge, skill and judgment, his illegible notes and his inadequate documentation related to prescriptions; and
g. For his walk-in practice, a different investigating expert and also a physician concluded that Dr. Vaidyananthan failed to meet the standard of practice in 15/15 charts that he reviewed. He expressed specific concerns with Dr. Vaidyananthan’s lack of knowledge in patient assessment, a lack of judgment in the prescription of opioids and benzodiazepines and he concluded that Dr. Vaidyananthan exposed patients to potential harm in 14/15 charts he examined.
[12] The parties also filed an Agreed Statement of Facts and Admission (Penalty) where they agreed that the following were relevant considerations:
a. OHIP Billing for Self-treatment;
b. the Humber River Hospital Investigation;
c. Prior History with the College and in particular three separate instances of complaints to the Inquiries, Complaints and Reports Committee (ICRC);
d. Dr. Vaidyananthan’s Undertaking of July 19, 2019 to practice under the guidance of a clinical supervisor acceptable to the College for 12 months, engage in professional education in medical record-keeping, test results management and human rights;
e. A second undertaking in lieu of an Order undersection 25.4 of the Health Professions Procedural Code, which related to Dr. Vaidyananthan’s out-of-hospital practice and clinical supervision of all prescriptions for narcotic drugs, benzodiazepines, and other controlled or targeted substances; and
f. Dr. Vaidyananthan’s additional coursework at the University of Toronto on “Safer Opioid Prescribing Webinar Series” and a workshop on “Challenging Cases in Opioid Use and Misuse”.
[13] Based on these considerations, the parties made a partially joint submission on the appropriate penalty. They agreed that Dr. Vaidyananthan should be reprimanded, that he should complete instruction on ethics, and that his prescribing privileges of controlled substances in his out-of-hospital practice be restricted. They also agreed that there was no need for restrictions in relation to Dr. Vaidyananthan’s in-hospital prescribing practices. They did not agree on the period of a practice suspension. The College sought a 12-month suspension period. Dr. Vaidyananthan sought only a six month suspension period.
[14] Finally, each party provided the Committee with a draft Order for review. The proposed prohibition on the prescription of narcotics and other drugs for Dr. Vaidyananthan’s out-of-hospital practice included the following language: “… be prohibited from issuing new prescriptions or renewing existing prescriptions for or administering [Narcotic Drugs]”.
[15] The Committee reserved its decision on penalty. On July 24, 2020, independent legal counsel for the Committee wrote to the parties to ask why the parties had not proposed any prohibition or restriction on Dr. Vaidyananthan’s prescription of certain substances in his in-hospital emergency practice. Writing on behalf of both parties, Dr. Vaidyananthan’s counsel explained that such restrictions were not necessary because public protection and remediation measures were included in the July 2019 Undertaking. Counsel also noted that Dr. Vaidyananthan complied with the requirements of the undertaking. Finally, the communication cautioned the Committee on the high threshold to be met if they chose to depart from the parties’ joint submission and made specific reference to the considerations outlined in Anthony-Cook.
[16] On August 18, 2020, the independent legal counsel communicated with the parties for a second time to indicate that the Committee wanted to reconvene a hearing to obtain further clarification on aspects of the parties’ submissions on penalty. That communication identified four topics for discussion. The third topic addressed the following questions:
a. Why do the parties submit that the public will be adequately protected by the July 2019 undertaking? The panel notes that the reports from the clinical supervisors do not indicate whether Dr. Vaidyananthan has prescribed narcotics in his in-hospital practice, and so it is not evident whether any remediation or rehabilitation in respect of Dr. Vaidyananthan’s narcotics prescribing has occurred.
b. Is there precedent for restricting the prescribing of narcotics in one locale but not another? The panel notes that in CPSO v. Matheson 2-17, there were three other cases referred to i.e. CPSO v. Redekopp 2011, CPSO v. Wu and CPSO v. Esmond 2016, all of which resulted in prohibitions without stipulation of practice locale.
[17] The parties responded with the additional evidence that included the request by the College Compliance Case Manager that Dr. Vaidyananthan’s clinical supervisors ensure that five out of the twenty charts to be reviewed monthly relate to patients for whom Dr. Vaidyananthan prescribed narcotics or other controlled substances, a clinical supervisor’s report for the month of August 2020, commenting expressly on narcotics prescriptions and a commitment Dr. Vaidyananthan’s reassessment would include a review of hospital charts where he prescribed narcotics and other controlled substances.
[18] A hearing was reconvened on September 23, 2020 and a decision was released on January 4, 2021. In that decision, the Committee outlined the well-recognized penalty principles as set out in the jurisprudence, including most significantly protection of the public, denunciation of the misconduct, assurance of the integrity of the profession, and maintenance of public confidence.
[19] The Committee then considered the relationship between aggravating and mitigating factors, only to conclude that given the eight aggravating factors and the “breadth and seriousness of the professional misconduct”, the mitigating factors did “not carry significant weight”. It highlighted specifically Dr. Vaidyananthan’s demonstrated pattern of deceit, his deliberate behaviour, his lack of judgment, his abuse of authority and power, his arrogance and “blatant disregard” of his professional obligations, and a history of investigations between 2011 and 2019.
[20] Regarding the suspension period, the Committee preferred the College’s proposal of twelve months and concluded that a 12-month suspension was proportionate to Dr. Vaidyananthan’s conduct. The said period was seen to be both a strong specific and as well as a general deterrent to the profession.
[21] The Committee expressly rejected the differentiation in the restrictions to be placed on Dr. Vaidyananthan’s prescribing of controlled substances between the out-of-hospital and in-hospital locations. Following a very detailed review of the evidence, it concluded that “a full prohibition on the prescribing of controlled substances, regardless of the practice location, is necessary to protect the public.” It arrived at that conclusion on the basis of “the serious issues identified pertaining to Dr. Vaidyananthan’s clinical judgment, the lack of evidence regarding the safety of Dr. Vaidyananthan’s narcotic prescribing, and prior decisions of this Committee.” Ultimately, the Committee underscored its concern for public safety by reiterating that the only way to protect patients and the public was to impose on Dr. Vaidyananthan a general prohibition on the prescription of narcotics and controlled substances. Anything short of a such a prohibition would be contrary to the public interest and would bring the administration of justice into disrepute. The Committee expressed the concern that the public would question why this doctor was able to continue to prescribe controlled substances with “his longstanding record of deceit, displayed lack of clinical judgment, and failure to maintain the standard of practice”.
Standard of Review
[22] Sections 70(1) and (2) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18(the “Code”) provide that an appeal lies to this Court from a decision of the Discipline Committee on questions of law or fact or both.
[23] Where the legislature provides for an appeal from an administrative decision to a court, the appellate standard of review applies. That standard is correctness for errors of law and palpable and overriding error for findings of fact. For mixed fact and law findings, the standard is palpable and overriding error, except where there is an extricable error of law, in which case the standard is correctness, see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para.37, and Hanson v. College of Physicians 2021 ONSC 513 (Div. Ct.), at para. 36, citing Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para.18.
[24] When it comes to the review of a penalty, appellate courts extend considerable deference to decision-makers. In the criminal context, sentencing is recognized as a fact-specific exercise of discretion and the bailiwick of the trial judge, see R v. Ramage, 2010 ONCA 488 at para. 70. The standard of review on an appeal of a criminal sentence is a high. Except where a judge makes an error of law or an error of principle that has an impact on sentence, an appellate court may not vary the sentence unless it is “demonstrably unfit”, see R v. Lacasse, 2015 SCC 64, para. 41.
[25] The same is true for penalties imposed by a regulatory tribunal. The penalty must be found to be “clearly unfit,” or the decision-maker must be shown to have made an error in principle before the appellate court may intervene, see Mitelman, at para. 18. A clearly unfit penalty is one that is disproportionate or falls outside the range of penalties imposed in other cases involving similar infractions or circumstances. The Court of Appeal has recognized that discipline committees, such as the Committee in this instance, is “composed of members of the profession and the public with the expertise to assess the level of threat to the public and the profession posed by certain forms of behaviour.”, see College of Physicians and Surgeons of Ontario v. Peirvoy, 2020 ONSC 1348, 2020ONSC 1348, para. 14.
Analysis
[26] Although the parties articulated the issues in the appeal in slightly different ways, the issues for this court’s consideration are as follows:
a. Did the Committee err when it departed from the joint submission concerning Dr. Vaidyananthan’s in-hospital prescription and administration privileges?
b. Did the Committee breach a duty of fairness in its departure from the joint submission on penalty?
c. Is the restriction of Dr. Vaidyananthan’s in-hospital privileges for the prescription and administration of controlled substances disproportionate and clearly unfit? and
d. Is the 12-month suspension excessive, disproportionate, and clearly unfit?
[27] Dr. Vaidyananthan contends that the Committee erred in its departure from the joint submission concerning his in-hospital prescription and administration privileges, that it failed to give him any notice of its intention to depart from the joint submission, and that the penalty is disproportionate and clearly unfit both in respect of the in-hospital restrictions and the 12-month suspension. What makes the penalty unfit is that the restrictions amount effectively to a lifetime ban on his ability to work in the hospital as an emergency physician. He asks this court to set aside the Committee’s prohibition related to his in-hospital ability to prescribe and administer controlled substances and to reduce the 12-month suspension to six months, as he originally requested.
[28] The College contends that the Committee did not err in its departure from the joint submission on the appropriate penalty terms. In the College’s view, the Committee appreciated the very high legal threshold associated with a departure from a joint submission. It gave Dr. Vaidyananthan notice of its concerns as well as the opportunity to make additional submissions, and it understood the principles that govern the imposition of a penalty. In short, the College submitted that the Committee’s departure from the joint submission was amply justified, the penalty imposed was fit, and the appeal should be dismissed.
[29] In my review of the enumerated issues, I conclude that the Committee did not err in its departure from the joint submission as that concerned Dr. Vaidyananthan’s prescription and administration privileges. While severe and pronounced, neither the general prohibition nor the suspension period can be said to be clearly unfit to Dr. Vaidyananthan’s circumstances. The penalty imposed is to be afforded deference.
a. Did the Committee err when it departed from the joint submission concerning Dr. Vaidyananthan’s in-hospital prescription and administration privileges?
[30] The Committee did not err in its departure from the joint submission concerning Dr. Vaidyananthan’s in-hospital prescription and administration privileges. To the contrary, it demonstrated its understanding of the implications of a joint submission and did not take its departure from that submission lightly. The extent of the Committee’s concerns and the care it took before its rejection of the joint submission was reflected in its decision to seek out supplementary written and oral submissions from the parties, specifically on the issue of the doctor’s prescribing parameters.
[31] During the supplementary oral submissions, the Committee members were transparent with their difficulties with the proposed joint terms. They repeatedly expressed concerns that the joint submission was disproportionate to Dr. Vaidyananthan’s admitted severe clinical deficiencies, and reflected their understanding that their departure from that submission could not be undertaken lightly. The Committee expressed its concern that the proposed joint penalty would not protect the public in very deliberate and forceful terms. Specifically, at the hearing of September 23, there were repeated questions by the various Committee members about the differentiation in prescribing restrictions between in-hospital and out-of-hospital patients. The members expressly indicated that they were struggling with the said differentiation. Characteristic of the Committee’s concerns are the following comments:
At p.2-55 of the transcript, Dr. Stanton asked:
“… from a public safety protection perspective that if he’s taken all these courses and had the supervision, that he would have prescribed safely in an emergency room setting which actually deals with the same type of patients that he would often see at a walk-in clinic, why would he not be also safe to prescribe in the outpatient setting, given his rehabilitation and the types of patients he would see would not be dissimilar?”
At p.2-56, the concern was brought into greater focus with the following question:
“… So, again, how do you square that circle that he should be safe in the one environment but not in another environment with similar types of cases that present to him?”
[32] Later, at p.2-94 – 2-95, despite the attempts by counsel for both the doctor and the College to explain the distinctions between the two settings, Dr. Stanton reiterated the Committee’s persistent difficulties as follows:
“ … I am not quite understanding how [the clinic setting] differs from the emergency room situation, where the emergency room doc sees an orphan patient and starts the patient on chronic pain management medication for pain. And, again I am looking for some advice as to how we might craft a restriction. If the concern is chronic pain management, it should be the same issue of concern within the emergency room situation with orphan patients. … I am still confused. I don’t think the discrimination in chronic pain management in outpatients with orphan patients differs from what a physician would face in an emergency ward.”
[33] Other Committee members expressed concerns with respect to the totality of the doctor’s shortcomings and difficulties. They were clear in their comments that they were rejecting the suggestion that a substantial part of the penalty focus on the locus of prescribing practices without regard for the broader picture and the totality of the evidence. Pointing to the Agreed Statement of Facts on Penalty where there was an admission that there were “serious and pervasive clinical deficits”, they asked questions about how to frame a remedy that responded to the specific clinical deficiencies at issue.
[34] In framing their questions to counsel, in addition to explaining why they were having trouble with the joint submission, they asked for alternative remedies as well as guidance on how to fashion an appropriate remedy that would be more responsive to Dr. Vaidyananthan’s clinical deficiencies.
[35] Then, in its reasons, the Committee demonstrated its full appreciation of the test to be met before it could depart from a joint submission. At paragraph 47, the Committee expressly recognized that it should not depart from the joint penalty proposal unless it would “bring the administration of justice into disrepute or is otherwise not in the public interest”. It proceeded to explain why a full prohibition on the prescription of controlled substances was the only way to protect the public. That conclusion was based on the Committee’s findings that the Appellant was reckless and demonstrated a lack of judgment in both his in-hospital and out-of-hospital settings. The Committee went further to explain and conclude that the July 2019 Undertaking and the associated reports were insufficient indicators of any substantive changes to Dr. Vaidyananthan’s clinical knowledge and judgment.
[36] Ultimately, although the Committee did not use the term “unhinged from the circumstances of the offence” to describe its discomfort with the proposed joint submission and the reasons for its departure, its conclusion at paragraphs 61 and 62 of the decision demonstrated in clear and cogent terms the reasons for its rejection of the joint submission. It said that a general prohibition regardless of location was “the only way to protect patients and the public” and went further to say that it felt strongly that “anything short of a general prohibition would be contrary to the public interest and would bring the administration of justice into disrepute”. The Committee’s wholesale rejection of the joint submission was captured in paragraph 62:
[62] The Committee sees no justification to limit the prohibition of his controlled substance prescribing to just his out-of-hospital practice. The Committee does not agree with the parties that the supervision he is currently undertaking in the emergency department will serve as adequate remedy for his misconduct. Management of patients in an emergency department is similar to that in an out-of-hospital practice. Patients treated in the emergency room are often managed and sent home with a prescription without any oversight by other healthcare professionals. As a result, the Committee is not convinced that an emergency department would be any different than an unsupervised out-of-hospital locale with respect to Dr. Vaidyananthan’s controlled substance prescribing. A broad prohibition on prescribing controlled substances (i.e. both in-hospital and out-of-hospital) is required to ensure the public is protected.
[37] In my view, the Committee’s extensive explanation and its pronounced rejection of the joint submission, demonstrated in clear and cogent terms that the Committee understood and considered the “undeniably high threshold” for its departure from a joint submission. It applied the requirements of R v. Anthony-Cook 2016 SCC 43, paras. 34 and 60, and it met those requirements. Its repeated references to the public interest and its concern that the joint submission would be difficult to support and explain, captured the depth of its concern that the Committee’s acceptance of the joint submission would bring the administration of justice into disrepute.
b. Did the Committee breach a duty of fairness in its departure from the joint submission on penalty?
[38] For the reasons already discussed in the preceding section the Committee did not breach its duty of fairness in its joint submission on penalty. It sought written and oral submissions from the parties, it engaged with counsel in very clear terms, and it sought input from the parties for alternate remedies that would be responsive to their expressed concerns.
[39] Counsel for the College and Dr. Vaidyananthan chose to stand by their original submission and tried to persuade the Committee of the reasons for differentiating between an in-hospital emergency location and out-of-hospital locations. Neither side proposed any alternative remedies or other approaches to the Committee’s concerns.
[40] Dr. Vaidyananthan’s complaint in his factum that the Committee’s notices were not sufficiently clear to allow him to appreciate the magnitude of the Committee’s concerns and his jeopardy, such that he might withdraw the joint submission strains credulity, given the two written requests for specific clarifications, followed by a supplementary oral hearing. If the initial communication of July 24, 2020 did not sound any alarm bells for the doctor, the more detailed communication of August 18, 2020 followed by the supplementary oral hearing on September 23, 2020 should not have left him with any doubt that the Committee may not follow the Joint Submission. In my review of the transcript of the supplementary hearing, I note at least three or four exchanges where the Committee did not leave any doubt that it was considering departing from the joint submission. That disposition was underscored by the repeated requests by the Committee for an alternate and more comprehensive remedy that would be more proportionate to the doctor’s failings. Those requests serve to underscore the Committee’s awareness of the gravity of the situation and its attempt to be fair.
[41] Against such a dynamic, the onus was on Dr. Vaidyananthan to withdraw from the joint submission if he wished to do so, see R v. R.S., 2019 ONCA 542. If, as he submitted before this court, a general prohibition would amount to the revocation of his license, Dr. Vaidyananthan should have raised that concern.
c. Is the restriction of Dr. Vaidyananthan’s in-hospital privileges for the prescription and administration controlled substances disproportionate and clearly unfit?
[42] The general restriction to Dr. Vaidyananthan’s in-hospital privileges regarding the prescription and administration of controlled substances is a fit and fair penalty in light of the Committee’s findings of fact. Critical to the Committee’s prohibition was its finding that it could not differentiate between an out-of-hospital and an in-hospital practice and that nothing short of a general prohibition on prescribing would be sufficient to respond to the multitude of shortcomings in Dr. Vaidyananthan’s clinical practices.
[43] On the subject of Dr. Vaidyananthan’s complaint that the general prohibition on prescribing practices was tantamount to the revocation of his license, I acknowledge that the Committee was not looking to revoke Dr. Vaidyananthan’s license. In my review of the record, the Committee members were looking for meaningful supervisory terms that would protect the public. At no time was there any express suggestion that the Committee was seeking to revoke Dr. Vaidyananthan’s licence. Even their requests for alternate remedies were framed in terms of more robust remediation measures and better supervision. Consistent with the theme of remediation and appropriate restrictions, counsel for Dr. Vaidyananthan spoke of the adequacy of what was being proposed.
[44] That said, in at least three instances counsel for Dr. Vaidyananthan also submitted that they did not endorse a complete prohibition of Mr. Vaidyananthan’s narcotics prescribing practices. This would have been the opportunity for counsel to explain that a complete prohibition would amount to a practical revocation of the doctor’s license. But such objections were not raised and the Committee was not alerted to any such implications. Instead, counsel for both the doctor and the College limited their responses to the Committee’s concerns to arguments about why the joint submission ought to be accepted as adequate.
[45] In other words, they tried to persuade the Committee that the differentiation in restrictions between in-hospital and out-of-hospital made sense and could be justified. Given the Committee’s persistence that they could not understand the proposed differentiation between in-hospital and out-of-hospital prescribing practices, Dr. Vaidyananthan should have been alive to the prospect that, absent an alternative proposal as a remedy, the Committee would select a general prohibition. Having failed to alert the Committee to the implications of a general prohibition, when such opportunities existed, the doctor cannot complain about the outcome at this stage.
[46] Against these considerations, the threshold for a reviewing court in a discipline committee’s decision on penalty is very high. In this instance, the Committee was in a far better position than this court to determine the appropriate penalty for this particular case of professional misconduct, see Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 34.
[47] As already noted above, the Committee was acutely aware of its paramount role and obligation to impose a penalty that would protect the public. In its reasons, the Committee also addressed its obligations to maintain the public’s confidence in the reputation and integrity of the medical profession, effective self-governance, specific and general deterrence, and the potential for a member’s rehabilitation, see College of Physicians and Surgeons of Ontario v. Peirovy 2018 ONCA 420 at paras. 63-64 and Hansen v. College of Physicians, 2021 ONSC 513 (Div. Ct.) at para. 24. In doing so, it expressed its deep reservations over Dr. Vaidyananthan’s conduct. Its rationale for rejecting the differentiation between in-hospital and out of hospital prescribing restrictions reflected the Committee’s clear concern and recognition of its “paramount principle” to protect the public.
[48] In doing so, the Committee arrived at a penalty that is proportionate to Dr. Vaidyananthan’s clinical deficiencies and it is therefore entitled to deference.
d. Is the 12-month suspension excessive, disproportionate, and clearly unfit?
[49] The 12-month suspension is neither excessive nor disproportionate to the Committee’s findings concerning Dr. Vaidyananthan’s failures. It should be noted right from the outset that this aspect of the penalty was not a joint submission. Dr. Vaidyananthan asked for a six-month suspension and the College asked for a 12-month suspension. The Committee accepted the College’s proposal.
[50] Having regard for the principles already reviewed above, the 12-month suspension is proportionate and fit to the circumstances of Dr. Vaidnyanthan.
Fresh Evidence Motion
[51] Turning to Dr. Vaidyanthan’s motion to adduce fresh evidence, the request is denied as I am of the view that when considered with the evidence adduced both in writing and through the oral submissions, the fresh evidence would not have affected the Committee’s disposition.
[52] To begin, it is worth remembering that there are four factors that one must consider before fresh evidence can be adduced, Bent v. Platnick, 2020 SCC 23, at para. 50:
a. The evidence should generally not be admitted if, by due diligence, it would have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
c. The evidence must be credible in the sense that it is reasonably capable of belief; and
d. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[53] Dr. Foote’s report raises two concerns. First, Dr. Foote’s report could have been introduced at the very latest at the supplementary hearing when the Committee signaled very clearly that it was not going to accept the differentiation between in-hospital and out-of-hospital prescribing limitations. The distinction between “prescribing” and “administering”, as well as the implications of a general prohibition on one’s employability in an emergency department were relevant issues. However, as noted in the preceding section, the doctor did not make any submission on the implications of a wholesale prohibition on prescribing narcotics and controlled substances.
[54] More significantly, having regard for the Committee’s concern that the public coming into an emergency room be protected, Dr. Foote’s report offers no insights on the available mechanisms within an emergency department that would safeguard patients from the inappropriate prescription or administration of controlled substances. At the risk of simplifying the Committee’s exchanges, the single most important question for the members of the Committee concerned the question of how the public will be protected from the inappropriate administering or prescribing of controlled substances and narcotics. Learning that a general prohibition would result in a physician not being permitted to work at all in an emergency department may have alerted the Committee to concerns about revocation, but the report offers nothing on the available safeguards to the public.
[55] In the same vein, the distinction between prescribing and administering would not have made a difference to the Committee’s concerns since administering narcotics and controlled substances still involves the selection of appropriate medication. From the perspective of the public’s safety, concerns over one’s ability to choose medication safely would exist whether the physician were prescribing or administering.
[56] The three affidavits from the supervising clinicians would not have added anything to the Committee’s considerations, much less changed their disposition because they addressed Dr. Vaidyananthan’s remediation. The Committee was alive to the various remediation and rehabilitation measures that Dr. Vaidyanathan undertook but it expressly stated that all those efforts were insufficient to alleviate its concerns. The proposed affidavits speak only in generalities and include perfunctory comments. Having concluded that a general prohibition on prescribing was necessary even in the face of significant rehabilitation, see Reasons at para. 58, the proposed additional affidavits are unlikely to have impacted the Committee’s penalty analysis.
Conclusion
[57] Having concluded that the Committee did not err in principle when it departed from the joint submission, that the Committee satisfied its duty of fairness, and that the penalty was fit and proportionate to Dr. Vaidyananthan’s clinical deficiencies, the appeal is dismissed, as is the motion to adduce fresh evidence.
[58] Insofar as costs are concerned, I note that the parties exchanged offers to settle. Substantively, Dr. Vaidyananthan offered to consent to an Order of the Divisional Court varying the Order of the Committee so as to remove the restriction on the prescribing and administration of controlled substances for Dr. Vaidyananthan’s in-hospital emergency medicine practice. He also asked that the College pay the costs of the appeal.
[59] The College offered to consent to the admission of the fresh evidence. It also offered to concede that the Committee did not give adequate notice of its intention to restrict Dr. Vaidnayanthan’s administration of narcotics. In light of that concession, the College was prepared to consent to an order to remove the restriction on the administration narcotics and controlled substances in hospital emergency settings. Each party would pay for its own costs.
[60] The College was entirely successful on the appeal. Accordingly, it is entitled to its costs, which the parties agreed would be fixed at $7500.
Tzimas J.
I agree _______________________________
Kristjanson J.
I agree _______________________________
Favreau J.
Released: September 15, 2021
CITATION: Sammy Vaidyanathan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5959
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Tzimas, Kristjanson, and Favreau JJ.
BETWEEN:
SAMMY VAIDYANATHAN and COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
ENDORSEMENT
Tzimas J.
Released: September 15, 2021