Complainant v. the College of Dental Surgeons of British Columbia

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1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. the College of Dental Surgeons of British Columbia DECISION NO HPA-221(a) September 13, 2016 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 Dental Surgeons of British Columbia COLLEGE AND: A Dentist REGISTRANT BEFORE: Thelma O Grady, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on May 31, 2016 APPEARING: For the Complainant: Self-represented For the College: Allison Maharaj, Counsel Greg Cavouras, Counsel For the Registrant: Self-represented HEARING DECISION I DECISION [1] Upon considering the application and for the reasons outlined below, it is my decision that an Oral Hearing is not necessary, and that the disposition of the Inquiry Committee is confirmed. II APPLICATION FOR AN ORAL HEARING [2] On May 14, 2016, the Complainant made an application for an oral and/or a disciplinary hearing. I have treated this as a request that the Board proceed by way of oral submissions on this application to review. The Board provided the College and the

2 Registrant with the opportunity to provide their position on whether there was a need for an oral hearing. Only the College responded. [3] The College submitted that the format of a hearing is a preliminary question that should have been decided when the Board directed the parties to provide written submissions. [4] In any case, even if the Board has jurisdiction now to direct an oral hearing following the receipt of written submissions, I find it not appropriate to do so. Both the College and Complainant have spent significant time and resources providing written submissions to date, and there is no indication that there is any new information that would make the decision to proceed by written submissions incorrect. Further, I have no problems with the written submissions that would benefit from the opportunity to ask questions and assess credibility that an oral hearing would provide. [5] The Review Board decision in No HPA-120(a) states written hearings have become the norm, and the considerations that favour an oral hearing are not present in this case. An oral hearing is inappropriate for the following reasons: III (a) An application for review is a review on the record. The record is complete and further evidence is not required in order for me to properly assess the adequacy of the investigation and the reasonableness of the disposition; (b) The Complainant has articulated his concerns thoroughly in writing, and does not need an oral hearing to reiterate them; (c) There is no issue with conflicting evidence that would call for an oral hearing in order to ask questions for the purpose of determining which evidence is to be preferred, and to assess credibility of a party as a part of that process; and (d) An oral hearing would require significant additional time and resources for the Complainant, College, Registrant and this Board, without improving the quality of the decision. FACTS [6] This complaint arises out of the Complainant s dental experience with the Registrant between January and May 2014 after he consulted the Registrant about having his teeth whitened. [7] The Complainant states that he clearly advised the Registrant that he was not seeking any dental treatment, other than the whitening of his six upper teeth. He claims that the Registrant pressured him into having x-rays taken, followed by hygiene treatments and that he did not consent to those treatments. [8] The Complainant submits that the treatment by the hygienist was deficient and harmful and led to his gums abscessing and causing difficulty with chewing. He also submits that the whitening was not done properly and that his teeth are dingy and dark, barely a shade brighter than before the treatment.

3 [9] The Complainant wrote the Registrant a letter in August and another in September 2014 complaining about the dental services and stating that he did not give informed consent to the x-rays, and for spending so much time, effort, pain and the government s money for only slightly lighter teeth. He also stated that while he consented to cleaning of his teeth, he did not consent to the hygienist picking at and scraping on my gums with a sharp instrument. [10] He further stated that he had explained to the hygienist that sort of picking and scraping had created various holes in his gums and several abscesses seven years earlier. He claimed he had no issues with his gums and teeth in the six years prior to seeing the Registrant and his hygienist. [11] The College, in its Statement of Points, submitted the following about the treatment provided: (a) This case involved the cleaning of the Complainant s teeth. A typical hygiene appointment consists of scaling and root planning (debridement) to remove plaque and calculus from the tooth surfaces and below the gum line, as well as polishing. This is completed by using an ultrasonic instrument and/or hand instruments; (b) The hygiene appointment also typically includes periodontal probing (which) involves using a periodontal probe to measure the depth of the pockets in the gum around each tooth. Measuring pockets allows a dentist to determine if a patient has periodontal disease; and (c) This case involved the whitening of the Complainant s teeth. Before proceeding with any methods of whitening, it is usual to first clean the teeth in order to prepare the surfaces of the teeth and remove any stains. There are different methods available to whiten teeth. Bleaching is the most common method. When bleaching is not the chosen method of whitening, composite (filling material) may be used to cover the tooth surface in order to make the teeth appear whiter. [12] The Patient Chart records that on February 5, 2014, a new patient exam was completed, including two x-rays. The Complainant presented with moderate to heavy calculus, moderate to heavy inflammation, areas of severe bone loss, and deep pockets on several teeth. Cleaning began on the Complainant s teeth. [13] Due to the poor periodontal condition of the Complainant s teeth and gums, a second appointment was required to complete the cleaning. This occurred on February 14, The hygienist discussed periodontal disease with the Complainant as well as the fact that the bone loss could lead to eventual loss of teeth. She recommended that he attend for hygiene treatments at three-month intervals. The Registrant also began the process of covering the Complainant s teeth with composite. [14] A third appointment occurred on February 24 th to complete the covering of the teeth with composite.

4 [15] On May 15, 2014, the Complainant returned for hygiene according to the threemonth schedule the hygienist recommended. The hygienist completed root planning and polished the Complainant s teeth. She noted that the Complainant still presented with moderate inflammation, plaque and calculus and she stressed to the Complainant the importance of proper hygiene of the gum line. [16] On August 11 th, the Complainant phoned the Respondent s office and informed them he had two abscesses in the back of his mouth six weeks after his last appointment with the hygienist, which he believed were the result of treatment provided by her. The receptionist offered him an appointment, which he refused. IV APPLICABLE PRINCIPLES & ANALYSIS [17] The Review Board provides an objective, impartial review of the dispositions of Inquiry Committees of British Columbia s health colleges. The Act requires and empowers the Review Board to examine the adequacy of the investigation undertaken by an inquiry committee and/or the reasonableness of its disposition. The Review Board does not undertake fresh examinations of complaints nor does it step into the shoes of the original inquiry committee and rehear matters. [18] If I determine that either the investigation or the disposition was flawed I may direct the inquiry committee to make a disposition that it could have made or send the matter back to the inquiry committee to reconsider with specific directions. [19] The Review Board initially directed this review to a Stage 1 hearing which was based solely on the record of investigation provided by the College (the Record ) and submissions received by the Complainant. Subsequently, as Panel Chair of the review, I directed this complaint to a Stage 2 hearing as I decided it was more appropriate to adjudicate after receiving submissions from the Registrant and College and a reply from the Complainant in order to fairly, properly and finally adjudicate this matter on the merits. [20] In my directional letter on March 8, 2016, I requested the College to address the following question in their submissions: (a) Is the Review Board s assessment of the reasonableness of the disposition properly informed by the evidence of the College s subsequent actions in following up on the educational measures proposed in its disposition letter? In this regard, the parties may wish to consider and make reference to Review Board Decision No HPA-170(a), Review Board Decision No HPA-027(a) and Review Board Decision No HPA-089(a). (b) If the answer to question A is no, was it reasonable in the circumstances for the Inquiry Committee to issue a disposition recommending educational measures without including specific reference in the disposition itself to what steps if any the Inquiry Committee intended by way of follow up, and/or what would be the potential implications for the Registrant should the Registrant fail or refuse to carry out those recommended measures within a reasonable period of time.

5 [21] The College requested an extension of time for submissions which was granted. The College provided their Statement of Points on April 29, 2016, and the Complainant submitted his final reply on May 14, In his Reply, the Complainant made an application for an oral hearing. Both the College and Respondent were given the opportunity to provide their submissions on the issue of style of hearing which only the College did. [22] My decision regarding the oral hearing is set out above. A. Adequacy of the Investigation [23] The Review Board must, on review, determine the adequacy of the investigation. What constitutes an adequate investigation in the context of the Review Board was well defined in Review Board Decision No HPA-0001 to 0004(a) paras. [97] and [98] which reasoning I have adopted here: [97] A Complainant is not entitled to a perfect investigation, but he or she is entitled to adequate investigation. Whether the 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. [98] The degree of diligence expected of the College what degree of investigation was adequate in the circumstances may well vary from complaint to complaint. Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the college will all be relevant factors in determine whether an investigation was adequate in the circumstances. [24] The College investigated the complaint. They assigned an inspector who did the following: (a) reviewed the clinical records and additional documentation provided by the Registrants; (b) provided a copy of the Registrant s response to the Complainant and reviewed the Complainant s comments to that response; (c) obtained a statement from the Registrant s hygienist; (d) conducted two telephone calls with the Complainant; and (e) conducted three telephone calls with the Registrant. [25] After reviewing the records and interviewing both the Complainant and the Registrant, the inspector was unable to conclude that the abscesses were a result of the treatment provided. In fact, scaling and root planning are part of the treatment process for dental abscesses. The records from both the hygienist and the Registrant indicate that the Complainant first presented with pre-existing moderate to severe periodontal disease and severe bone loss in the posterior areas of his mouth.

6 [26] In summary, all records and information relevant to the complaint were obtained and reviewed. The Registrant provided a written response and both the Complainant and Registrant were interviewed by telephone. The Complainant was given an opportunity to review the Registrant s response and provide the inspector with his comments both in writing and during his two telephone interviews. [27] In this matter, I find that the Inquiry Committee availed itself of the key information to allow them to assess the complaint. Given the nature of this complaint, the seriousness of the harm alleged and having considered the entire Record, I find that the Inquiry Committee investigated the complaint adequately B. Reasonableness of the Disposition [28] Review Board Decision No HPA-059(a) in paragraphs [19] and [23] indicates that the role of the Review Board in assessing the reasonableness of the Inquiry Committee s disposition of a complaint is to determine whether it falls within a range of reasonable outcomes, based on the evidence before the Inquiry Committee. The Review Board does not determine whether the Inquiry Committee s decision was right or wrong. [29] Upon completion of the investigation, the College inspector noted that there were no concerns with the treatment provided. The College inspector also did not find any correlation between the treatment provided by the hygienist and the Complainant developing abscesses. In short, there was no evidence that the Registrant was responsible for the abscesses. [30] Likewise, there is nothing in the Record which indicates that the teeth whitening was inadequate. [31] However, there were concerns with the Registrant s recordkeeping, informed consent with regard to the options presented to the Complainant, and the diagnosis and treatment planning of the Complainant s periodontal disease. [32] The inspector and the College s Deputy Registrar then met with the Registrant via Skype and discussed these concerns with the Registrant. [33] As a result, the Registrant entered into an Agreement which addressed diagnosis and treatment planning, informed consent and recordkeeping. In the Agreement, the Registrant acknowledged the College s concerns with his periodontal diagnosis and treatment planning, recording keeping and informed consent protocols and agreed to take the Online Record Keeping Course and a course that focuses on the diagnosis and treatment planning of periodontal disease. [34] My role when assessing the reasonableness of a disposition is to determine whether it falls within a range of defensible outcomes based on the evidence the Inquiry Committee had before it. As noted in Review Board Decision No. 0001(a)-0004(a), the disposition need not be ideal, but reasonable.

7 [35] Within the range of outcomes, the Inquiry Committee chose to order that the Registrant take remedial courses. [36] The College was further asked by me if it was reasonable in the circumstances for the Inquiry Committee to issue a disposition recommending educational measures without including specific reference in the disposition itself to what steps, if any, the Inquiry Committee intended by way of follow up, and/or what would be the potential implications for the Registrant should the Registrant fail or refuse to carry out those recommended measures within a reasonable period of time. [37] The College argued that whether or not the educational measures were completed does not affect the reasonableness of the disposition. I choose not to address this argument at this time as the College did confirm that the Registrant has completed the online recordkeeping course and is in the process of working with the College to locate an appropriate course focusing on the diagnosis and treatment planning of periodontal disease. [38] I find that the disposition is reasonable. This disposition is transparent, justifiable and intelligible. It fell with a range of possible, acceptable outcomes that are defensible on a review of the facts and the law. V CONCLUSION [39] The majority of the relief the Complainant is seeking in this review is simply not available. As described in paragraphs [17] and [18], I have limited powers conferred by the Act. [40] However, I hope that the Complainant will take some comfort from the fact that the remedial program the College imposed upon the Registrant addresses the issues that arose in his case. This is an appropriate resolution, and one that is consistent with the College s mission to protect the public. [41] I find that the Inquiry Committee availed itself of the key information on which to base its disposition. It fulfilled its duty to investigate the complaint adequately. Similarly it has delivered a reasonable disposition. For the reasons outlined above, I dismiss the application for review and confirm the disposition of the Inquiry Committee. [42] In making this decision I have considered all the information and submissions before me whether or not I have referred to them specifically. Thelma O Grady Thelma O Grady, Panel Chair Health Professions Review Board

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