Thibert v. Health Professions Appeal and Review Board, 2022 ONSC 7045
DIVISIONAL COURT FILE NO.: 873/21
DATE: 20221222
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer and Matheson JJ
BETWEEN:
MARK ROGER THIBERT, MD
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND ROBERT CASAVANT
Respondents
COUNSEL:
Lorne Honickman and Laura Brown, for the Applicant
Steven Bosnick, for the Respondent, Health Professions Appeal and Review Board
Morgana Kellythorne, for the Respondent, the College of Physicians and Surgeons of Ontario
HEARD at Toronto by videoconference: October 5, 2022
REASONS FOR JUDGMENT
Lederer J.
Introduction
[1] Dr. Mark Roger Thibert (hereinafter "Dr. Thibert" or the "Applicant") is a plastic surgeon. Following a lengthy process of investigation, consideration and review it was determined that he should appear at the College of Physician and Surgeons of Ontario to be "cautioned" about the need to attend, in person, to patients who have suffered significant injuries and "advised" that, when unable to provide ongoing care, he should appropriately communicate the urgency of the situation when handing over care of patients to another physician. By this application for judicial review Dr. Thibert seeks to have that decision declared unreasonable and set aside.
Background
[2] On January 30, 2016, Robert Casavant injured his hand while operating a snow blower. He went to the Thunder Bay Regional Health Sciences Centre. He was attended to by a physician in the emergency department. Surgery was required. Fingers from the left hand of Robert Casavant had been "severed" and "severely lacerated". That evening Dr. Thibert was the plastic surgeon "on-call".
[3] Although he did not at first remember, the applicable records make it apparent that at approximately 5:45 pm, on that day, the emergency doctor treating Robert Casavant and Dr. Thibert spoke on the telephone. The call was a short one. It lasted about 4 minutes. No one involved recalls precisely what was said or discussed. Given the short duration of the call, Dr. Thibert believes it was unrelated to the injury suffered by Robert Casavant or, any mention of it was cursory in nature. The emergency physician believes that during this call he was instructed on how to perform the required procedure. Initially, Dr. Thibert asserted that his first interaction with the emergency room physician was shortly after 10:00 pm. There is some confusion as to whether this was by text, followed by a telephone call, or only the latter. It does not matter.
[4] During these communications the emergency room doctor explained the injuries suffered by Robert Casavant and the procedure he had undertaken. He sent photographs and asked for confirmation that the repair was satisfactory. Dr. Thibert confirmed that the repair was well-done and requested that Robert Casavant be sent for a follow-up examination with him the following day (February 1, 2016). At the follow-up, Dr. Thibert explained that he would be unable to continue to manage the treatment of Robert Casavant. He was leaving the country the next day. In order to ensure continuity of care, Dr. Thibert requested the involvement of Dr. Azad, another plastic surgeon. The formal referral, delivered by text, requested ongoing care of the patient and Dr. Azad agreed to see Robert Casavant the same day, being February 1, 2016. For whatever reason, Dr. Azad did not see the patient on that day. He saw him four days later and operated on the left hand of Robert Casavant on February 4, 2016.
[5] Following from these events, on January 2, 2018, Robert Casavant delivered a complaint to the College of Physicians and Surgeons of Ontario. The complaint raised three concerns related to the involvement of Dr. Thibert in the treatment Robert Casavant had received following the accident:
- he had failed to come and see Robert Casavant in the emergency room,
- two days later, on February 1, 2016, he referred Robert Casavant to Dr. Azad but without the urgency the situation required; this resulted in irreparable damage to the fingers of Robert Casavant; and
- his office staff was "brutal" when removing the bandages on February 1, 2016 and failed to re-wrap new bandages appropriately.[^1]
The Process
[6] The College of Physicians and Surgeons of Ontario is responsible for the regulation of the medical profession in Ontario. It does so pursuant to the Regulated Health Professions Act ("RHPA"), the Health Professions Procedural Code which is Schedule 2 to the RHPA, the Medicine Act, 1991, regulations promulgated under those Acts and the by-laws of the College. The Health Professions Procedural Code, s. 10 prescribes the committees the College is to have. They include an Inquiries, Complaints and Reports Committee ("ICRC").
[7] Where, as here, a complaint regarding the conduct or actions of a member of the College is received by the Registrar, a panel of members of that committee, as selected by its Chair, will investigate or consider a report of the Registrar.[^2] In this case there was an investigation. Once an investigation is complete the panel may:
- refer any allegation of misconduct or incompetence to the Discipline Committee,
- refer the member for incapacity proceedings,
- require the member to appear before a panel