Complainant v. The College of Physicians and Surgeons of British Columbia

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Physicians and Surgeons of British Columbia DECISION NO HPA-008(c) November 9, 2017 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT BEFORE: Marilyn Clark, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on August 31, 2017 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Sarah Hellman, Counsel Nevin Fishman, Counsel STAGE 2 DECISION Upon reviewing the record of investigation provided by the College, (the "Record") relating to this complaint at Stage 1, I determined I was unable to adjudicate based simply on the Record and the Statement of Points submitted by the Complainant. I, therefore, elevated the review to Stage 2 in order to have the benefit of further submissions from the College and the Registrant. I INTRODUCTION [1] This Complaint concerns a disposition by the Registrar pursuant to s.32(3) of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) adopted by resolution of the Inquiry Committee. Section 32(5) of the Act provides that such a disposition is considered to be a disposition by the Inquiry Committee and in this review I will refer to it as a disposition by the Inquiry Committee.

2 [2] This is an unusual complaint that the Inquiry Committee has dismissed and the Review Board has been asked to review. The Registrant gave an expert opinion on behalf of Physician A, defendant in a trial brought by the Complainant. The Registrant was asked to prepare a report "based solely upon my review of the materials provided to me by the instructing law firm. The Registrant had never examined or provided medical care to the Complainant. He was asked to conduct a "paper review" of the care provided to the Complainant by Physician A and Physician B, neither of whom are the subject of this complaint. [3] The Complainant is currently a 37 year old male who is totally disabled as a result of a perforated ear drum that occurred at age 26 when his left ear was irrigated while he had, or was recovering from, an ear infection. [4] The Registrant, an Otolaryngologist, was an expert witness at trial when the Complainant pursued the suit against Physician A who performed the ear flush. [5] The Complainant filed the suit in the BC Supreme Court where the judge ruled that the claim fell outside the limitation period of two years and was, therefore, barred by statute. The Complainant's appeal was similarly rejected and his application for leave to appeal to the Supreme Court of Canada was also dismissed. [6] The Complainant states that the Registrant, in his submission to the Court, "completely and utterly contradicts ALL relevant medical records. [7] In addition to the Registrant, the Otolarynologist, and Physician A against whom the suit was filed, there are a number of other medical personnel who will be referenced: (a) Physician B saw the Complainant in the Regional Hospital emergency room ( ER ) when he attended with an earache, and recommended he have his ear irrigated in a week's time. When the Complainant attended to see his family physician for that purpose one week later, Physician A, who worked out of the same clinic as the Complainant's family physician, saw him and conducted the irrigation. (b) Physician C is the Complainant's family physician and has cared for him since he was an infant. (c) ENT Specialist A is the Otolaryngologist who has cared for the Complainant's ear issues from childhood. (d) ENT Specialist B is an Otolaryngologist from whom it was suggested the Complainant seek a second opinion. There is nothing in the Record from this specialist. [8] In their disposition letter, the Inquiry Committee responded as follows: The role of the College is to ensure that any physician who undertakes a role in a medical-legal case does so in adherence to professional ethical standards. Physicians providing an expert opinion must confirm that they are aware of their duty to assist the court in a non-biased manner. They must diligently review the relevant medical records

3 and other documentation and, to the best of their ability, formulate a professional opinion based on their medical expertise. We have reviewed the report of [the Registrant], dated July 29, 2014, and we have no criticism of the content of this report. [9] The Complainant is seeking to have the Inquiry Committee's decision overturned and the Registrant reprimanded. II BACKGROUND [10] The Complainant suffered ear problems from a young age and a number of myringotomies (a surgical procedure to reduce the pressure in the ear) were performed and tubes inserted. [11] On November 18, 2006, the Complainant visited the Regional Hospital ER with an earache. Physician B was on duty. Physician B examined the Complainant and advised him that his ear was "too red and swollen" to examine it thoroughly and suggested he might have an ear infection. The Complainant states that Physician B prescribed an antibiotic and advised him to "have my ear flushed in the near future, preferably within the coming week. [12] A week later, the Complainant made an appointment with the office of his family physician, Physician C, for ear flushing as instructed. Physician C was unavailable so Physician A saw him and flushed the ear which is allegedly the reason he has a perforation. The Complainant states in the court discovery document: I told [Physician A] that I had been given a prescription of antibiotics by [Physician B] and that [Physician B] had told me he couldn't tell because it was too red and swollen, but that he had told me to have my ears cleaned within the week of having seen him. [Physician A] then proceeded to clean my ears... I indicated pain during the cleaning of the left ear but not during that of the right, and [Physician A] informed me that if there was some pain, I would have to tough through it so that he could continue. [13] ENT Specialist A who had treated the Complainant for many years saw the Complainant on November 29, 2006, at a time when he was suffering extreme pain in his left ear and recorded "He has been treated off and on for otitis externa (inflammation of the ear canal) and was actually irrigated on one occasion by [Physician A] which is probably contraindicated." [14] ENT Specialist A provided a report for presentation to the Court in which he stated, in response to the question: What is your present diagnosis of [the Complainant's] injuries resulting from the syringing of [the Complainant's] ear by [Registrant A]: [The Complainant] has difficulty with equalization of ear pressure (Eustachian tube dysfunction). This puts him at increased risk for fluid accumulation, resulting in infection (otitis media), and potential perforation of the eardrum. Additionally, he reports episodes of vertigo with related nausea and tinnitus.

4 [15] In response to the question relating to the standard of care met by Physician A, ENT Specialist A stated: The standard of care for a patient with otitis externa is manual cleaning with the operating microscope and/or eardrops and antibiotics. Irrigation is contraindicated. Additionally, in a patient who has a history of myringotomies and tubes, irrigation is contraindicated. In [the Complainant's] case, he had a previous history of several occasions of myringotomies and tubes, performed at the [Regional Hospital]. [Physician B's] examination findings were that the left eardrum was plugged with wax. He appropriately treated this by prescribing antibiotics. He also advised [the Complainant] to see his family doctor for irrigation after he had completed the antibiotics. During the irrigation procedure, [the Complainant] reported pain which would be indicative of trauma to the tympanic membrane (i.e. perforation). This was further evidenced when [the Complainant] returned to the Emergency Room within days of the irrigation exhibiting ear discharge and otalgia. [16] ENT Specialist A stated that the perforation failed to heal and a tympanoplasty was required on April 1, In the spring of 2009 there was again a small perforation and on June 2, 2009, a second tympanoplasty was performed. He stated: His tympanic membrane is very thin because of the multiple procedures myringotomies in childhood (which is contraindication for irrigation of the ear) and tympanoplasty x 2 for repair of the perforation sustained in 2006 following irrigation leaving him at risk for reperforation. [17] The Complainant is currently unable to work to sustain himself. He has difficulty with equalization of ear pressure so any change of altitude causes pain. He lives in a remote mountainous valley which means his ability to travel is limited. III THE REGISTRANT'S EXPERT OPINION [18] In his report to Counsel, the Registrant identifies the information he relied upon to form his opinion, including: 1. Notice of Civil Claim which sets out the allegations of negligence; 2. Records of Physician C; 3. Records of the Regional Hospital; 4. Copies of faxes from ENT Specialist A; 5. College of Pharmacists of BC, PharmaNet Printouts; 6. Records of ENT Specialist A and ENT Specialist B; 7. Transcript of examination for discovery of the Complainant; 8. Statement of Assumed Facts of Physician B; and 9. Statement of Assumed Facts of Physician A

5 [19] In that report, the Registrant refers to the medical records of Physician A stating "there were no apparent contra indications to ear syringing. He further states "It is documented that [Physician A] carried out examination on left ear using otoscope as well as palpation of left pinna... The procedure by which ear syringing was performed was appropriate." There are no medical records from Physician A in the Record. In fact, it has been stated in the Record that Physician A only recorded "ears flushed" and that Physician A had no recollection of the event. [20] The Registrant states in his letter of July 8, 2015 to the College: Ultimately, the trial judge will have to rule whether or to what extent my opinions are accepted by the court. With the greatest of respect, it is not for the college to investigate or decide if my "findings are wholly contradictory " as [the Complainant] invites. I merely authored a medical legal report based on the materials and instructions provided to me by [the instructing law firm]. [21] With the greatest of respect, it is totally appropriate for the College to "investigate" as they must when a complaint is filed, just as it is my role to determine whether that investigation was adequate. Unfortunately, the "materials and instructions provided by [the instructing law firm]" do not form part of the Record. [22] The Registrant suggests that the document provided by the Complainant relating to the procedure to be used for ear irrigation was developed for nurses in the Regional Hospital, and was not intended for physicians. [23] Other health authorities have established the same or similar protocols. It is clear from the foregoing that the protocols were not followed by Physician A and it appears the protocols are similar if not the same for nurses and physicians. [24] The Registrant expands on the matter of protocols in his Statement of Points. In paragraph [45] below, and submits:... A physician's training allows them to discern between previous ear surgery of consequence to irrigation (e.g. a mastoidectomy) and previous ear surgery of no consequence (e.g. remote myringotomy and tube that had healed as in the complainant's case). [25] The Registrant accurately states that the Emergency Room document of November 18, 2006, indicates the Complainant ought to have his ears irrigated one week later and the Complainant followed that instruction. [26] The Registrant states there "were no apparent contra indications to ear syringing in medical records of Physician B or Physician A. There would be no reason for Physician B to have a history of the Complainant; he was simply the physician on duty in the ER on the date the Complainant appeared. Physician A apparently did not take a history or review the Complainant's medical files lodged with the clinic.

6 IV LEGISLATIVE ROLE [27] As the hearing chair, I am limited by the Act which stipulates in s.50.6(5) and s.50.6(8) that: the review board must conduct a review of the disposition and must consider one or both of the following: (a) the adequacy of the investigation conducted respecting the complaint; (b) the reasonableness of the disposition. On completion of its review under this section, the review board may make an order: (c) confirming the disposition of the inquiry committee, (d) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (e) sending the matter back to the inquiry committee for reconsideration with directions. [28] If I find the investigation was adequate and the disposition falls within a range of reasonable outcomes, then I must confirm the decision of the Inquiry Committee. V STATEMENTS OF POINTS [29] In my letter to the parties regarding my Stage 2 hearing directions ( Stage 2 directions ), I specifically asked the College and the Registrant, as appropriate, to respond to the following: (a) The Complainant has provided a copy of a document from [the Regional Hospital] that provides a checklist and guidelines to be used by a registered nurse when a patient is being assessed for ear irrigation but [the Registrant] has stated that this document is intended for the use of nurses, not physicians. There is nothing in the Record to clarify what the College's guidelines are for proceeding with irrigation of the ears. I ask the Registrant and the College to advise what the protocols and contraindications are that apply to physicians. (b) I would further ask the College to comment on their reasoning in finding no basis on which to criticise the Registrant when the Registrant allegedly ignored statements in the medical records while performing a medical review. The Complainant had had a number of myringotomies and tubes in his left ear and was on an antibiotic for a recent ear infection when [Physician A] performed a flushing of the left ear. Was this contrary to the protocols physicians are expected to follow? (c) [The Registrant] has listed in his expert opinion document the information he relied upon to form his opinion. Among those are Statements of Assumed Facts of [Physician B] and [Physician A], both dated June 16, Who

7 prepared these Statements of Assumed Facts and what information was used to prepare them? Statement of Points College [30] The College notes a preliminary decision is necessary as to whether certain additional information provided by the Complainant with the Form 11 submitted with his Statement of Points received by the College on May 26, 2017, should be admitted as evidence. They submit that the review is to be made on the Record and remind the Panel Chair that the role of the Review Board "is not to rehear the evidence and come to factual conclusions which differ from those reached by the Registrar, except where those conclusions are clearly not supportable. Preliminary Decision [31] The College takes the position that the additional information "lacks sufficient probative value and does not assist in rendering disclosure of the matters related to the adequacy of the investigation and reasonableness of the college's disposition more full and fair. [32] The College reminds me of Review Board decision 2010-HPA-G09 in which criteria was presented to be considered in assessing the admissibility of additional information not included in the Record: (a) How relevant is the material to the matters at issue on the review? (b) Would it be fair to all parties to admit it? (c) Does the admission of the information render the disclosure more fulsome or complete so as to enable the Review Board to render a full, fair and proper hearing? [33] I have reviewed the many documents submitted with the Complainant's Form 11, some of which are included in the Record, others which are not of probative value to the matters at issue in this Review, and others which are interesting but unnecessary to this Review. [34] I did find three of the documents interesting. I accept the document that provides the College's disposition of the Complainant's complaint in regard to Physician A which I find is relevant to the matters under review and necessary to ensure a full, fair and proper hearing of those matters. The document does provide confirmation that the College was critical of Physician A, that he was previously disciplined and he was required to leave the practice of medicine. Physician A's departure from the practice of medicine was related to a number of concerns, not necessarily related to his treatment of the Complainant. I remind the Complainant, however, that this review is of the decision of the College in regard to the Registrant, not Physician A. [35] The two other documents of interest were simply confirmation of the points that have been raised by the Complainant.

8 (a) Registrant's Counsel's letter of February 28, 2015, to the Complainant advising he wished the Complainant to be assessed by the Registrant. Plans were made for the Registrant to examine the Complainant but that examination did not happen. This contradicts the Registrant's submission that he was only to do a "paper review" and Counsel has stated the Registrant has no intention of examining "the Complainant since his complaint was filed with the College"; and (b) The Pharmanet record confirming Tylenol 3 was prescribed when Physician A recorded he had prescribed an antibiotic. This was a record keeping error by Physician A that was brought to the attention of the College by the Complainant. [36] Although, I do not find it necessary to admit these two documents, they do provide credence to the Complainant's story-line. [37] I have to remind the Complainant that my only role is to determine if the investigation in regard to the complaint filed against the Registrant was adequate and the disposition reasonable. I cannot step into the shoes of the Registrar or the Inquiry Committee and change the disposition to one the Complainant would prefer. [38] In their Statement of Points, the College reviewed the chronology of the Complainant's complaint filed on February 27, 2015, in which he alleged the Registrant provided "a contradictory medical opinion regarding my health and medical history which pose a serious risk to my access to adequate treatment and care of medical condition. [39] The College goes on to remind me of the Review Board's role in assessing the adequacy of the investigation: that it is not one of perfection; that I must recognize the finite resources of the College; and that the Review Board owes deference to the College. [40] Their Statement of Points goes on to outline the steps taken by the College in their investigation of the complaint. [41] After determining whether the investigation was adequate, the next step is to assess the reasonableness of the College disposition. In their Statement of Points, the College references Review Board Member Unruh's Decision No HPA-086(a) and submits: The standard of reasonableness requires deference to the first instance decision maker's assessment of the evidence. In exercising its role, the Review Board does not determine whether the College's disposition is right or wrong. It reviews the Record to determine whether the decision is within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. If the outcome falls within a range of reasonable outcomes, the disposition ought to be confirmed. [42] In response to the questions I posed in my Stage 2 directions, the College submitted in regard to the first question:

9 (a) The College does not issue guidelines or protocols for specific clinical procedures. Rather, the College expects that its Registrants will perform their duties to a standard of practice in keeping with other physicians with similar specialization in their community, and with reference to current scientific knowledge. (b) As such, the College does not have a published standard with respect to ear irrigation. The assessment of whether or not ear irrigation is contraindicated in a particular case involves an exercise of clinical judgment that falls within the scope of expertise of a qualified physician including an otolaryngologist. In arriving at his medical opinion, [the Registrant] reviewed, among other things, medical records and statements of assumed facts pertaining to [Physician B] and [Physician A], respectively. Based on this information, and [the Registrant's] qualifications as a medical practitioner specializing in otolaryngology, [the Registrant] had a documented foundation upon which to state: (i) Occluding wax preventing full assessment of the ear drum and middle ear is an appropriate indication for ear syringing; (ii) Contraindications include tympanic membrane perforation and otitits externa (external ear canal infection). (iii) The medical records reviewed by [the Registrant] demonstrated an absence of ear discharge (otorrhea) and otherwise normal wax in the external ear canal, suggesting to him that there wasn't tympanic membrane perforation. (iv) In addition, an otherwise benign otoscopic examination ruled out a diagnosis of otitis externa. Thus, on the basis of the documentation before [the Registrant], he was able to conclude that there were "no apparent contraindications" to ear syringing in the medical records of [Physician B and A]. [43] The College, in response to question (b) in my Stage 2 directions (para. [29] above) submitted the following:... the College notes that [the Registrant] was entitled to critically evaluate the information before him in order to arrive at an opinion. The College acknowledges that opinions based on the same information may differ; such variation does not in and of itself detract from the validity of the opinions. It was evident based on the information obtained by the College and reviewed as part of its assessment of this matter, that at the time [the Registrant] authored his report in 2014, the documents he reviewed (including [ENT Specialist A's] records at pages of the Record) indicated there was not an intact patent tube or a hole in the drum of the Complainant. The possibility of an ear infection was noted but inconclusive. Thus, there was a sufficient basis upon which [the Registrant] could opine that ear irrigation to remove wax was not contraindicated. When adjudicating a complaint such as this, the College considers whether or not a physician reviewed relevant documents, acknowledged their duty to the Court, and applied their skill and knowledge in formulating an opinion based on the medical

10 information before them. In this instance, the Registrant is a fully qualified otolaryngologist. His specialized training affords him the skill and knowledge to formulate the opinion he provided in the July 29, 2014 report. [44] The College concludes: In this instance, the Registrar exercised discretion to determine the scope of the investigation, utilized expertise to evaluate the complaint and concluded that further regulatory intervention was not required in the public interest. It is respectfully submitted that the Review Board ought to refrain from re-weighing the clinical information in the Record and instead ought to accord deference to the determinations reached by the Registrar in the Disposition as reflective of an outcome that falls within the range of reasonable options available in respect of the facts and law. Statement of Points Registrant [45] In his Statement of Points, the Registrant responds at length to the first question in my Stage 2 directions. He submits: The protocols for ear irrigation that apply to nurses see pp of the Record are broadly applicable to physicians. However, the determination of what indications and contraindications are present is a medical one, based on medical assessment, as is the decision to proceed with irrigation.... A physician's training allows them to discern between previous ear surgery of consequence to irrigation (e.g. a mastoidectomy) and previous ear surgery of no consequence (e.g. remote myringotomy and tube that had healed as in the complainant's case).... Contraindications to ear syringing include external ear canal infection (otitis externa) and tympanic membrane perforation. The emergency room record of November 18, 2006 did not document these diagnoses. The diagnosis of tympanic membrane perforation is typically associated with ear discharge (otorrhea). The absence of otorrhea and documentation of otherwise normal wax in the external ear canal, suggests tympanic membrane perforation was not present. Further, the records provided to the Registrant suggested that there was an absence of certain symptoms during ear irrigation including immediate and dramatic pain in the ear that indicate there was an intact tympanic membrane at the relevant time. The Complainant's recollection of experiencing pain during the irrigation was not of "immediate and dramatic pain". His recollection of the pain varied from "minor discomfort" to "significant pain which resolved". Further absence of contraindications is shown in the Complainant's history of previous ear irrigations in 2003 and This information was noted in the clinical history provided to the Registrant. No complications that would be expected in a patient with an intact tympanostomy tube or perforation were noted, implying that the tympanic membrane was intact. The Complainant argues that there was evidence of a suspected ear infection... that should have been acknowledged as a contraindication in the Registrant's reports. However, the Complainant acknowledges that [Physician B] did not document a

11 suspected ear infection in his clinical notes... The Registrant's reliance on [Physician B's] clinical notes regarding this issue adhered to professional ethical standards. [Physician B's] notes were made contemporaneously with the examination of the Complainant, and did not document a suspected ear infection. [46] In response to the Complainant's suggested contraindications, the Registrant submits "An earache does not imply otitis externa and is not a contraindication to syringing when otitis externa has been ruled out. Additional pain while syringing is indeterminate, but not a contraindication." [47] The Complainant's history of myringotomy and tubes, the Registrant submits, "is not a contraindication for ear irrigation as long as there is no longer an intact patent tube in place, or a hole in the drum. [48] The Registrant submits "the Complainant was placed on antibiotics for a possible sinus-related infection on November 18, There was apparently a possibility of ear infection, but this was indeterminate. The absence of hearing loss is an indication there was no ear infection at the time. Ear irrigation to remove wax is not contraindicated in the context of a middle ear infection (otitis media). [49] The Registrant summarizes that, in his view, "The otitis externa was not present at the time of syringing, but syringing could have caused the otitis externa, which is unfortunate but unforeseeable. As the otitis media improved clinically and audiometrically according to [ENT Specialist A's] notes, a left tympanic membrane perforation developed between December 9 and December 19, 2016 [sic]. This perforation was probably due to the natural history of resolving otitis media with a retracted tympanic membrane." Complainant's Statement of Points [50] The Complainant provides comments on the adequacy of the investigation and the reasonableness of the disposition and declares that I only owe deference when the adequacy of the investigation is not in question and the disposition is reasonable. [51] The Statements of Assumed Facts of Physicians A and B were apparently provided to the Registrant by his legal counsel. He relied upon them but they are not included in the Record and it is not known who prepared them. I agree with the Complainant that the College could have requested them but the College is not required to pursue every possible line of inquiry in order to satisfy the definition of adequacy of the investigation. [52] The Complainant submits that because of the College's decision in regard to Physician A that it follows they ought to have found the Registrant's expert report unreasonable, which he suggests must mean their investigation was inadequate. The set of facts in regard to the complaint against Physician A are not the same set of facts the College had to deal with in regard to the complaint filed against the Registrant. [53] The Complainant provided in his Statement of Points the transcript of a decision of the Supreme Court of British Columbia in Pichugin v. Stoian, 2014 BCSC 2061 on the

12 Oral Ruling on Admissibility of Expert Reports in which Mr. Justice Skolrood ruled that for a host of reasons, the expert reports provided by the Registrant were "not admissible" and the Registrant was not "permitted to testify at trial. This decision is interesting but the facts are unique in each case and, therefore, not applicable in this case. [54] The Complainant has had much to say about time limits and mailing deadlines, asserting that certain documents should not be accepted because he did not receive them within a reasonable time frame. I deal with this issue below. Time Limits and Receipt of Documents [55] The Act provides for a time frame within which an application for review must be received from a Complainant (s. 50.6(2)). Rules were established to clarify time limits and the definition of "deemed delivery. [56] Rule 27 was established to define "deemed delivery" and states in 27(3): A document or communication that is sent by mail is deemed delivered on the fifth day after it is mailed excluding a Saturday, Sunday or public holiday. [57] One definition of "deemed" is to consider or to hold. "Deemed delivered" on the fifth day means that it will be considered to have been delivered on the fifth day and does not mean that it will in fact have been delivered on the fifth day. [58] Rule 30 of the Rules of Practice and Procedure provides the Review Board with the discretion to determine when correspondence or documents may not be invalidated because they have not been delivered within a time frame referenced in the Act or in the Rules. It states: (1) If a notice, correspondence or document is not delivered in accordance with this Part the proceeding is not invalidated if the review board determines that the failure to deliver does not result in prejudice to the person or any prejudice can be satisfactorily addressed by an adjournment or other means. [59] There is considerable correspondence in this file that relates to receipt of documents especially by the Complainant that in the view of the Complainant are out of time and ought not to be considered by the Review Board. [60] There is even more correspondence that relates to the Complainant's inability to receive mail in a timely fashion from the parties. I note that the Complainant lives in a remote rural area and picks up his mail from a mail box at a distance from his residence when he goes into town. [61] As Panel Chair, and in accordance with Rule 30, I have decided that I will accept all documentation currently on the file without regard to the date of receipt by any of the parties and have determined that none of the parties are prejudiced to the point that I should not consider any of the submissions.

13 [62] The parties should note that I am making my decisions in regard to this matter as it relates to the core issue of the complaint filed by the Complainant: that the Registrant "provided a medical opinion that completely and utterly contradicts ALL relevant medical records (and all other official records). My role, as has been stated previously, is to determine if the investigation of the complaint was adequate and the disposition of the Inquiry Committee reasonable. VI ADEQUACY OF THE INVESTIGATION [63] The Review Board articulated in Review Board Decision No HPA-0001(a) (a) at para. [97] the extent to which a College must investigate a complaint: A complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the inquiry committee s assessment of the complaint. [64] The College received the complaint on February 27, It included a number of attachments: certain Emergency/Outpatient Records for the Complainant; consultation and medical chart records prepared by ENT Specialist A; a Report for Presentation to the Court completed by ENT Specialist A; the documented discipline of Physician A by the College; and the expert opinion provided to the court by the Registrant. [65] Over the course of time, the Complainant provided further documentation to the College which included portions of the transcripts of the Examination for Discovery of the Complainant relating to his interactions with Physicians A and B. [66] The College sought and received responses from Physician B, ENT Specialist A and the Registrant. [67] On the basis of those submissions, the College determined they could not find fault with the Registrant's expert legal opinion. [68] I would have preferred had the College requested copies of the Assumed Facts on which the Registrant in part relied in making his decisions. After considerable deliberation, however, I determined access to those documents would not have made a difference to my decision. [69] Although not perfect, I find the investigation adequate. The Registrar had sufficient information to make a reasonable disposition, one that must fall within a range of rational solutions. VII REASONABLENESS OF THE DISPOSITION [70] The Complainant raises the issue of the College having criticized Physician A in an earlier Review Board decision (2016-HPA-061(a)). That decision was written after the Complainant filed a complaint about Physician A's actions in flushing his ears when he was being treated in 2006 for an ear infection, an action that was contraindicated for

14 a patient with a history of ear surgeries. The complaint also referenced a visit in February 2011, when Physician A apparently made an inaccurate entry in the Complainant's medical record in regard to a prescription he had written for the Complainant. In that disposition, the College wrote, after their investigation of the complaint, they were "critical of [the Registrant's 1 ] assessment, documentation and management of your ear condition. They noted that since the Registrant was no longer a registrant of the College, they would take no further action but would place the decision on the former Registrant's permanent file should he apply to be reinstated. [71] This disposition relates to the testimony of the Registrant, an otolaryngologist, who was engaged by Physician A to provide expert testimony in a civil suit the Complainant had brought against Physician A. After investigating this complaint, the Registrar of the College stated in his disposition that the College had no criticism of the Registrant and that it was the job of the trial judge to weigh the arguments put forward by the opposing parties. [72] The Registrar wrote in regard to his role: The role of the College is to ensure that any physician who undertakes a role in a medical-legal case does so in adherence to professional ethical standards. Physicians providing an expert opinion must confirm that they are aware of their duty to assist the court in a non-biased manner. They must diligently review the relevant medical records and other documentation and, to the best of their ability, formulate a professional opinion based on their medical expertise. [73] The fact that the College was critical of Physician A in the above-noted decision does not relate to the Registrant's expert testimony in a different setting. [74] The Complainant submits that the Registrant ignored the response of ENT Specialist A that the flushing of the ears by Physician A was contraindicated. That is true. The Registrant, however, has put forward another scenario: that the perforation of the ear "likely developed between December 9 and probably due to the natural history of resolving otitis media with a retracted tympanic membrane. This would not be the first time that two specialists had differing views of the cause of an event. [75] The Registrant submitted the following to counter the Complainant's submission that the Registrant was wrong to find that Physician A was not responsible for the perforation in the Complainant's ear. The Registrant submits the following to counter that position: (a) ENT Specialist B, according to the Registrant, "documented intact tympanic membranes" during the period November 25 28, 2006; 2 (b) ENT Specialist A recorded in a consultation record on November 29, 2006, "Examination revealed the ear to be completely shut in keeping with a severe otitis externa. 1 This reference to the Registrant relates to Physician A. 2 This information is not in the Record.

15 (c) ENT Specialist A notes indicate "an intact left tympanic membrane, confirmed by "Type B AS" and "Weber's Lt. The Registrant submits "This is diagnostic of left otitis media. This is not iatrogenic or syringing related, but proves diagnosis is otitis media which requires an intact tympanic membrane. (d) ENT Specialist A entry on December 4, 2006, states "type b no inf. The Registrant submits "Type B refers to the measure of middle ear pressure testing, called impedance testing, which requires an intact tympanic membrane. A type B shape is associated with intact but flat impedance which is typical for fluid in the ear, behind an intact tympanic membrane. (e) A clinical note made by ENT Specialist A on December 9, 2006, documents "type c" and "bubbles. Type C, according to the Registrant, "confirms there was an intact, but retracted tympanic membrane. The "bubbles" notation typically denotes air behind an intact but retracted tympanic membrane." At this point in the Record there is the first reference to "yeast. This, the Registrant submits, is important because it "denotes yeast infection of the ear canal which is a common complication of otitis externa that has been treated too long or incorrectly, by antibiotic drops." The first documentation of "a hole in the tympanic membrane: 'perf as'" is on December 19, [76] The test the Review Board has traditionally applied to determine reasonableness of an Inquiry Committee disposition is whether it falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained. I see no basis to depart from this view. I only note that the range of acceptable and rational solutions and what is sufficient justification, transparency and intelligibility in a particular case is a question to be determined by the Review Board on a case by case basis, applying its expertise and specialized role in good faith. [77] The standard test for reasonableness of a disposition was established early in the Review Board s history, again referencing Review Board Decision No HPA- 0001(a) 2009-HPA-0004(a) where it was stated in para. [92] that the focus of the Review Board in determining the reasonableness of the disposition is to confirm it falls within the range of acceptable and rational solutions, and is, viewed in the context of the whole record, sufficiently justified, transparent and intelligible to be sustained. This standard has been quoted and modified over the years but continues to instruct Review Board members that a disposition that falls within a range of reasonable outcomes in respect of the facts and the law ought to be sustained. [78] The College submits, quoting Review Board Decision 2013-HPA-090(a), as follows: It is important that the Complainant understand that I am not a subject matter expert...my role is limited to considering, on a reasonableness standard, whether the disposition of the Inquiry Committee falls within the range of acceptable outcomes that are defensible in respect of the facts obtained through an adequate investigation and the applicable law. In this case I find that the disposition of the Committee in this matter is reasonable.

16 [79] The College has reminded me of the need for me to give deference to the opinions of the medical experts. The Complainant argues that "the owing of deference is only owed at best, where the investigation was adequate and the disposition was reasonable. [80] As the College stated in their Statement of Points: The standard of reasonableness requires deference to the first instance decision maker's assessment of the evidence. In exercising its role, the Review Board does not determine whether the college's disposition was right or wrong. It reviews the Record to determine whether the decision is within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. If the outcome falls within a range of reasonable outcomes, the disposition ought to be confirmed. [81] I find the arguments the Registrant has put forward compelling. I find the disposition to be reasonable. VIII CONCLUSION [82] I remind the Complainant that the actions or non-actions of Physician A have been dealt with by the College in the earlier complaint disposition referenced in para. [70] in which they were critical of Physician A. In that disposition, they criticized Physician A for not documenting the Complainant's history of ear surgeries; not documenting the physical examination or whether or not the syringing was successful and that "syringing your ears was 'probably contraindicated.' In your case we would have expected [the Registrant] to either remove the wax under direct vision or refer you back to [the Otolaryngologist] for assessment." This Review is of the disposition of the College in relation to a complaint filed against the Registrant who provided testimony in a court case. This is not a re-hearing of the Physician A complaint. [83] The Complainant has been dogged in his search for justice and in so doing has pursued many avenues to seek redress. He has sought to have Physician A disciplined through the College but got only assurances that, since Physician A was no longer a practicing physician, the criticisms against him would be placed on his file should he attempt to return to practice. He sought restitution through the court system but was not successful there because of the time delay between the actions of Physician A in 2006 and when he began his claim. He appealed the decision of the lower court and again was not successful. His application for leave to appeal to the Supreme Court of Canada was denied. Now he has confronted the Registrant in this review for not accepting and supporting the evidence submitted by ENT Specialist A who indicated that syringing of the Complainant's left ear by Physician A was contraindicated. [84] The College has investigated the complaint and has determined there are no grounds on which to criticize the Registrant's testimony in a civil suit. The disposition falls within a range of possible outcomes which means I will not be returning this file to the College.

17 [85] I sincerely hope that some healing can occur that will assist this Complainant with his hearing and his ability to live and to travel. Luck and healing seem to be what he needs. IX DECISION [86] Based on my review of the Record and the submissions from each of the parties, I have decided the investigation by the Registrar was adequate and the disposition reasonable. [87] In confirming the disposition of the Inquiry Committee, I have considered all of the information and submissions whether or not specifically reiterated herein. Marilyn Clark Marilyn Clark, Panel Chair Health Professions Review Board