CITATION: Kumer v. Royal College of Dental Surgeons of Ontario, 2022 ONSC 3090
DIVISIONAL COURT FILE NO.:: 476/21
DATE: 20220526
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, R. GORDON & MATHESON JJ.
BETWEEN:
BRIAN KUMER
Applicant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and [YJ]
Respondents
COUNSEL:
Neil M. Abramson and Robert Barbiero, for the Applicant
M. Jill Dougherty and Lara Kinkartz, for the Respondent Royal College of Dental Surgeons of Ontario
David P. Jacobs, for the Health Professions Appeal and Review Board
HEARD at Toronto: May 19, 2022 (by videoconference)
[1] The applicant, Dr. Brian Kumer, applied for judicial review of the decision of the Health Professions Appeal and Review Board (“HPARB”) dated May 3, 2021, confirming the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the Respondent Royal College of Dental Surgeons of Ontario dated September 20, 2019.
[2] These proceedings arise from a patient complaint regarding the circumstances surrounding a planned procedure for the removal of wisdom teeth. The ICRC investigated the complaint and directed that the applicant undergo practice monitoring and complete a specified continuing education or remediation program (“SCERP”) on the subject of informed consent.
[3] This application was dismissed at the oral hearing, with reasons for decision to follow. These are those reasons.
Brief background
[4] In January of 2018, the complainant was scheduled to have four wisdom teeth removed by the applicant. She had been referred to the applicant by her general dentist. The applicant is also a general dentist. Before the removal procedure began, the complainant was given an oral sedative, a topical anaesthetic, nitrous oxide, and a local anaesthetic. After the procedure began and she showed discomfort, the applicant decided to terminate the procedure and refer her to a dental surgeon who administered a general anaesthetic.
[5] In her complaint to the College, the complainant raised a number of issues, including the communications with her before the procedure regarding sedation, the steps taken once the procedure began and communications afterward regarding what had happened and aftercare.
[6] Sedation was the main focus of the argument in this application, specifically the use of “conscious sedation” – that is, oral sedation, local anaesthesia and nitrous oxide gas – rather than a general anaesthetic. The complainant said that she had asked to be “put under”. In her complaint, she said that the applicant informed her that she would be “put to sleep” using a local anaesthetic. She said that while the applicant administered the local anaesthetic, he repeatedly asked her if she was awake, and he administered more as she continued to answer yes. After the procedure began, she said she had a panic attack and kept fading in and out of consciousness while in considerable pain. The applicant terminated the procedure.
[7] In the applicant’s response to the complaint, he did not agree with the account of what happened. He noted steps taken to inform the complainant and obtain her consent, including with respect to anaesthetics. He provided his records and letters from his staff.
[8] With respect to anaesthesia, the applicant’s letter in response to the complaint indicated that the referring dentist had reviewed sedation options with the complainant and told her that she would receive oral moderate sedation with nitrous oxide. However, the information given in the letter to the College was not detailed in the patient record the applicant had received from the referring dentist at the time of the procedure. The record from the referring dentist said only that the referring dentist had recommended removal with oral sedation.
[9] The applicant’s letter to the College noted a number of interactions between the complainant and his office on the subject of sedation. The applicant’s assistant sent pre-sedation instructions to the complainant a few days in advance of the procedure and confirmed that she would receive oral moderate sedation with nitrous oxide. The instructions began by saying that the sedation would produce a “dream like state”.
[10] The day before the procedure, another staff member called the complainant. The applicant provided the College with a letter from the staff member saying that she reiterated the level of sedation in the call.
[11] There were also interactions with staff on the day of the procedure. The complainant met with a staff member and signed a consent entitled “Request for Anethesia and Sedation” that referred to local anaesthesia, nitrous oxide/oxygen and/or oral sedation. That document said the drugs “may cause drowsiness and lack of awareness”. The applicant provided a letter from that staff member to the College, in which the staff member said that when they were going over the paperwork the complainant mentioned that she was nervous and expected to have general anaesthesia. In her letter, the staff member said that she told the complainant that they did not have that option and made some suggestions, recounting the complainant replying that she was willing to give the sedation referred to in the above consent document a try.
[12] The applicant also provided a letter from his office manager, who said that she would not have said that a patient would be “asleep with a needle in the arm” but that a patient with oral sedation “may or may not drift off.”
[13] In his letter of response to the College, the applicant recounted the above and said that after “obtaining the [complainant’s] fully informed consent”, he administered the oral sedative. The chart says, “informed consent given, read, explained”. Counsel submits that these statements should be read to mean that the applicant also provided information to and had a discussion with the complainant before the procedure sufficient to obtain her informed consent. The complainant had said that the applicant told her that he would give her a local anaesthetic to put her “to sleep”. The applicant’s responding letter contains no particulars of a discussion between the applicant and complainant on the subject of sedation. He did say that her recall would be affected by the medication.
[14] On the procedure itself and aftercare, the applicant wrote to the College that he began the procedure by making a sulcular flap around one of the molars and, after aborting the procedure, explained what happened. The next morning, after hearing from staff that the complainant was in significant pain, the applicant said he would prescribe Percocet and did so.
ICRC and HPARB Decisions
[15] The ICRC concluded that the applicant had rightly decided to abort the procedure, but it did not appear that the complainant had been given sufficient information about sedation, about why the procedure had been unsuccessful, about the incision in her mouth and about what appropriate post-procedure steps she should take once discharged. The ICRC further noted that, rather than the incision, a more appropriate course of action would have been for the applicant to use an explorer or other less invasive method to ensure that the complainant was adequately anaesthetized.
[16] On the issue of sedation, the ICRC concluded that it was the applicant’s responsibility to ensure that the complainant was properly informed of what to expect and ensure that the patient had given her fully informed consent, including providing a reasonable level of detail about the type of sedation and anaesthesia she would receive. The ICRC concluded that the complainant had not been sufficiently informed.
[17] As required under s. 26(2) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, the ICRC also considered the applicant’s prior history with the College. There was a 2017 complaint that resulted in the applicant receiving advice and recommendations from the College to better communicate the nature of the sedation that patients would receive. The ICRC took into account the timing of the other complaint. The advice given in that case post-dated the events in this case.
[18] The ICRC gave the applicant notice that it intended to require a SCERP. In response, the applicant submitted that he had implemented additional safeguards in his informed consent process. After considering those submissions, the ICRC decided to proceed with the SCERP. The ICRC indicated that they remained concerned about the lack of one-on-one communication between the complainant and the applicant and other factors including the prior history with the College. They concluded that the issue requiring remediation posed a moderate risk of directly affecting patient care or safety or the public interest.
[19] The applicant sought a review by HPARB. Under s. 33 of the Code, in a review, HPARB shall consider either or both of the adequacy of the investigation conducted by the ICRC or the reasonableness of the ICRC decision. Before HPARB, the applicant agreed that the ICRC investigation was adequate. The issue was the reasonableness of the ICRC decision. The applicant submitted that the ICRC decision was unreasonable because the ICRC ignored information showing that the applicant did obtain informed consent and because of the timing of the other complaint that the ICRC considered.
[20] HPARB noted the ICRC’s mandate to screen complaints and determine whether a referral of allegations of professional misconduct to the Discipline Committee was warranted or if some other remedial action should be taken.
[21] HPARB reviewed the ICRC decision, noting that the ICRC had identified a number of deficiencies in the applicant’s treatment of the complainant including the use of an incision to test whether the anaesthetic had taken effect. On communications, HPARB concluded that the ICRC’s concern about the lack of one-on-one communication was supported by information in the record, even if the complainant had provided her informed consent. With respect to the other complaint, HPARB noted that the nature and timing of the other complaint had been taken into account. HPARB found that the ICRC’s decision was reasonable.
[22] HPARB confirmed the ICRC decision, noting that a SCERP is remedial in nature and not a sanction or penalty. It is meant to improve the member’s practice and protects the public interest.
Issues and Standard of Review
[23] The applicant submits that the ICRC decision, and HPARB’s confirmation of it, are unreasonable. Although the applicant accepts that this is a judicial review of the HPARB decision, the applicant submits that the HPARB decision did not depart significantly from the ICRC decision. The applicant’s submissions therefore mainly focused on the ICRC decision.
[24] The parties agree that the standard of review is reasonableness.
Analysis
[25] In support of the position that the decisions were unreasonable, the applicant submits as follows:
(i) that the ICRC misconstrued the evidence;
(ii) that the ICRC wrongly made credibility findings;
(iii) that the ICRC’s decision was inconsistent with the College’s policy on informed consent; and
(iv) that the ICRC wrongly relied on the other complaint.
[26] With respect to the submission that the ICRC misconstrued the evidence, the applicant put forward detailed submissions about each of the occasions when there was some communication with the complainant about sedation. The applicant begins with his account of what the referring dentist did, then the steps taken by his staff, concluding with the submission that the applicant’s statement in his letter to the College, “after obtaining the patient’s fully informed consent”, amounted to saying that he too had a full discussion with the complainant and obtained consent.
[27] The applicant’s submissions on this issue amount to an invitation to this court to draw certain inferences from the record in his favour, yet the record allows for other inferences as well. It is not the role of this court to re-weigh the information, nor was that the role of HPARB, as noted in its reasons for decision. Contrary to the applicant’s submission, the information before the ICRC and HPARB did not lead inevitably to the conclusion that there was no basis to require supervision or a SCERP.
[28] Nor did the ICRC make credibility findings. The above conclusion did not require findings of credibility with respect to communications with staff. The information from staff was considered but did not address the concerns. Further, the ICRC accepted that the applicant may have had a discussion with the complainant at the outset of the procedure. The complainant said the applicant did speak to her and she provided her account of that discussion, saying that the applicant informed her he would be giving her a local anaesthetic to put her to sleep. In the applicant’s response to the complaint, he said he had informed consent but did not provide any particulars about the discussion between him and the complainant. There was no credibility finding regarding that conversation. At most, the ICRC engaged in a limited weighing of the facts, which the ICRC was entitled to do: Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246 (Div. Ct.), at para. 68.
[29] Further, HPARB noted that even if informed consent was provided that did not displace the ICRC’s concern about the lack of one-on-one communication by the applicant.
[30] On the question of relying on others, HPARB did note that the applicant relied on discussions with other people. In these proceedings, the applicant relied to some extent on the referring dentist but at the time he had only a brief note from that dentist. More significantly, the applicant relied on the interactions with his staff. Staff members communicated with the complainant, but those communications included information that was not particularly clear such as the reference to a “dream like state” in the instructions and the reference to the potential to “drift off” and on one staff member’s account, the complainant still misunderstood right before the procedure.
[31] The applicant submits that HPARB acted in breach of College policy by suggesting that the applicant could not rely on the discussions that the complainant had with other people. The document that the applicant relies on is not a College policy. It is an article by two lawyers about the law of informed consent. However, it does have the College logo on the front page and was posted on the College website. We therefore accept that it could be described as the College offering guidance.
[32] The article that the applicant relies upon provides considerable information about informed consent, emphasizing that obtaining informed consent is a legal and ethical duty of dentists. Among other things, the article notes that a health professional does not need to “personally provide all material facts” relating to a proposed treatment to the patient. The article says that discussions can be delegated to a competent colleague. Neither the ICRC nor the HPARB decision contain a general prohibition against delegation that is inconsistent with this article.
[33] The other issues raised in the applicant’s factum regarding the facts were not the main focus of the application nor does it appear that they were raised before the HPARB. In any event, the applicant has not shown that the HPARB decision was unreasonable due to the ICRC’s comments about the complainant’s understanding of general anaesthetic, the question of whether the applicant confirmed the referring dentist’s diagnosis or the presence of notations about post-surgery communications.
[34] Lastly, both the ICRC and HPARB noted the timing of the other complaint. They did not err by saying that the applicant had failed to follow the guidance that had been given in response to the other complaint (since it had not been given at the time). The focus was that it was another instance of a complaint regarding informed consent. The ICRC considered whether the guidance already given was sufficient, finding that this case was more serious and a SCERP and monitoring were needed to address public interest concerns. HPARB found this reasonable.
[35] The question before HPARB was whether the ICRC decision was reasonable. HPARB found that it was. On this application, the applicant must demonstrate that HPARB’s decision was unreasonable, and has not done so. The HPARB decision falls within a range of possible, acceptable outcomes that are defensible with respect to the facts and law.
Decision
[36] The application is dismissed with costs to be paid by the applicant to the College in the agreed on all-inclusive sum of $7,500.
Justice K. Swinton
Justice R. Gordon
Justice W. Matheson
Released: May 26, 2022
CITATION: Kumer v. Royal College of Dental Surgeons of Ontario, 2022 ONSC 3090
DIVISIONAL COURT FILE NO.:: 476/21
DATE: 20220526
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, GORDON & MATHESON JJ.
BETWEEN:
BRIAN KUMER
Applicant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and [YJ]
Respondents
REASONS FOR decision
Released: May 26, 2022