Court File and Parties

CITATION: Zhao v. HPARB, 2024 ONSC 515

DIVISIONAL COURT FILE NO.: 599/22

DATE: 2024-01-31

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KATE ZHAO Applicant

AND: HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and MELANIE MARIE HAVERS Respondents

BEFORE: Matheson, Davies, and O’Brien JJ.

COUNSEL: Self-represented Applicant David P. Jacobs and Steven G. Bosnick, for the Respondent Health Professions Appeal and Review Board Mark Flisfeder, for the Respondent Melanie Marie Havers

HEARD at Toronto: January 22, 2024 (by videoconference)

Endorsement

[1] The applicant seeks judicial review of the decision of the Health Professions Appeal and Review Board (“HPARB”) dated September 23, 2022. HPARB confirmed the disposition of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario dated May 7, 2021. The ICRC decided not to take further action in respect of the applicant’s complaint about the respondent, Dr. Melanie Havers.

[2] The College proceedings arose from an operation the applicant’s spouse underwent in November 2016. At the time, his medical history included mixed dementia, hernia repair, diverticulosis, atrial fibrillation, and other conditions. He went to hospital emergency with abdominal pain. He had a large bowel obstruction and had colostomy surgery. The obstruction was initially thought to be cancer but was later found to be due to a piece of migrated mesh that had been used in a hernia repair some twenty years earlier.

[3] The respondent doctor was the anaesthesiologist for the abdominal surgery. The patient required post-operative re-intubation in the post-operative anaesthetic care unit due to a drop in oxygen saturation.

[4] The applicant complained to the College. She complained that the respondent doctor conducted herself unprofessionally and that she inadequately managed the patient’s care in relation to the colostomy surgery, including the assessment of the patient’s health condition, information about risks, and management of anaesthesia and extubation. The applicant’s view was that these failings contributed to her spouse having severe dementia, decreased quality of life, and shortening of life.

[5] In 2019, the ICRC decided to take no further action regarding the complaint. The applicant then sought a review of that decision by HPARB. In a review, HPARB considers the adequacy of the investigation and/or the reasonableness of the decision. HPARB concluded that the ICRC had not done an adequate investigation and therefore did not proceed to consider the reasonableness of the decision. HPARB required that the ICRC conduct a further investigation and render a new decision.

[6] The patient died in 2020 of severe pneumonia and sepsis.

[7] A newly constituted ICRC panel conducted a further investigation, obtained additional information, and released its decision on May 7, 2021. The ICRC again decided to take no further action regarding the complaint. The applicant again went to HPARB for a review. That is the HPARB decision challenged in this court application.

[8] As set out in its September 2022 decision, HPARB confirmed the ICRC decision to take no further action. HPARB considered the applicant’s position that the investigation was still inadequate. The applicant submitted that the ICRC failed to properly identify and obtain information from a surgical resident, failed to obtain further information from a medical student, and failed to interview three nurses, despite having the available medical records and responses from three of these people that they had no recollection of the matter.

[9] HPARB concluded that the investigation was adequate. HPARB noted that the ICRC investigation covered the events in question, that the ICRC obtained relevant information to make an informed decision, and that there was no indication of additional information that, if obtained, might reasonably be expected to have affected the ICRC’s decision.

[10] HPARB then considered the reasonableness of the ICRC decision. HPARB reviewed the doctor’s treatment of the patient, concluding that the ICRC had addressed all the concerns that had been raised. HPARB noted that the Surgical Panel of the ICRC, which made the decision, used its knowledge and expertise to assess the doctor’s actions.

[11] With respect to what information the patient was given about the risks of general anaesthesia, HPARB noted that the ICRC was faced with conflicting accounts. The applicant disputed the doctor’s account that the doctor was present for the pre-operative discussion about the risks of general anesthesia despite the doctor’s signature in the medical records. HPARB also considered the applicant’s position that because the anaesthetic record was not scanned in for over a year, it had been falsified and could not be relied on. It found the ICRC’s conclusion that the evidence did not support the falsification of the records to be reasonable. HPARB further found it reasonable that the ICRC did not identify any concern with the doctor’s knowledge of anaesthesia.

[12] Moving to this application for judicial review, the applicant has made extensive and detailed submissions setting out her view of the facts and issues in her factum, in annotations she has made on the HPARB decisions, and in her oral submissions. We will not attempt to recount each and every detail in this endorsement.

[13] The standard of review is reasonableness. The applicant challenges both HPARB’s finding that the investigation was adequate and that the ICRC decision was reasonable.

[14] Beginning with the investigation, the applicant submits again that the ICRC ought to have obtained information from a surgical resident, further information from a medical student, and should have interviewed three nurses.

[15] The applicant submits the 2019 HPARB decision directed the ICRC to obtain information from this resident. There is one accepted error in the HPARB reasons for decision, which state that the surgical resident was not registered with the College and therefore could not be located. As it turns out, the surgical resident is registered with the College. However, HPARB concluded it was not necessary for the ICRC to seek further information from the surgical resident, stating an adequate investigation does not need to be exhaustive.

[16] This conclusion was reasonable. In its 2019 decision, HPARB did not “direct” the ICRC to obtain information from the surgical resident. It instead stated that information from the surgical resident and others involved in the patient’s circle of care would have helped the ICRC. The new ICRC had substantial information about the surgery and the patient’s treatment on the day of the surgery, including correspondence from the surgeon who would have been assisted by the surgical resident, the resident’s consultation note, and the surgeon’s operative note. The applicant was specifically concerned the surgical resident had told her the patient “could not breathe on his own" while the respondent had reported he was breathing well. But the ICRC had the patient’s contemporaneous medical records including the details of his respiratory status. HPARB concluded that even if the surgical resident was able to remember the details of what had occurred more than five years earlier, there was no indication the information might reasonably have been expected to affect the ICRC’s decision. We do not find this conclusion unreasonable.

[17] With respect to the applicant’s remaining allegations about the investigation being inadequate, the ICRC obtained the medical records from the post-operative anaesthetic care unit (the PACU) and correspondence from the PACU nurses. Two of the nurses had no recollection of the treatment provided and one provided a response based only on the documentation. The ICRC investigator had two telephone calls and an e-mail with the medical student. The medical student stated he had no recollection of the case. In these circumstances, it was reasonable for HPARB to conclude the ICRC was not required to take further steps.

[18] The applicant is strongly of the view that the respondent doctor was lying when she submitted to the ICRC that she recalled meeting with the applicant and patient. The applicant submits it was wrong for HPARB to rely on the medical records as evidence to corroborate the doctor’s position. She suggests that the doctor falsified the anesthetic record. The applicant relies on the fact that the records were not scanned into the hospital’s online record until 14 months after the surgery. The applicant also relies on HPARB’s analysis of the pre-operative discussion as an example of its bias in handling this case.

[19] HPARB concluded it was reasonable for the ICRC to be assured by the medical records. The medical records included the respondent’s handwritten note that she discussed the anesthetic with the patient and the applicant. Medical records are a reliable source of information about a patient encounter absent compelling information to the contrary. HPARB accepted the respondent’s explanation that the handwritten records would have remained with the patient’s chart during the patient’s hospital stay and that this accounted for the delay in uploading the notes to the electronic record. This was a reasonable approach.

[20] With respect to the allegation of bias, the applicant submits that HPARB was biased because it did not confront the truth regarding the conflicting evidence about the meeting with the doctor, did not adequately address discrepancies in the evidence that was before the ICRC, and because HPARB sided with the doctor on the rulings it made.

[21] We do not find that there is a reasonable apprehension of bias. HPARB thoroughly considered the issues the applicant raised regarding the investigation and the reasonableness of the ICRC decision. HPARB considered the submissions of the parties, the record of proceedings and the ICRC decision, including the Surgery Panel expertise, in assessing the respondent’s conduct. HPARB carried out its screening function and was not required to undertake fact-finding to the extent requested by the applicant. The absence of the findings and conclusions that the applicant sought does not demonstrate bias.

[22] This application is dismissed with no order as to costs.

Matheson J.

Davies J.

O’Brien J.

Released: January 31, 2024