Complainant v. 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. College of Physicians and Surgeons of British Columbia DECISION NO HPA-034(a); 2018-HPA-035(a) (GROUP FILE 2018-HPA-G07) July 19, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: Complainant COMPLAINANT AND: College of Physicians and Surgeons of British Columbia COLLEGE AND: Physician and Surgeon REGISTRANT A Physician and Surgeon REGISTRANT B BEFORE: John M. Orr, Q.C., Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on June 18, 2018 APPEARING: For the Complainant: Self-represented For the College: For Registrant A: For Registrant B: Michelle Stimac, Counsel Self-represented Self-represented DECISION ON APPLICATION FOR REVIEW OF AN INQUIRY COMMITTEE DISPOSITION I INTRODUCTION [1] This Application for review under the Act was made to the Review Board in response to the Inquiry Committee decision communicated to the Complainant in the Senior Deputy Registrar s letter of January 25, 2018 (the Disposition ).

2 [2] The Complainant has had a long history of at least seven years of suffering serious pain mostly down her right lower extremity. She has received care from many healthcare providers including podiatrists, chiropractors, acupuncturists, physiotherapists and a neurologist. She also received health care from Registrant A, her family physician, and Registrant B, an orthopedic surgeon. Pain in her hip, knee and right foot was investigated including X-Ray and MRI examinations. Registrant B also further referred her to a foot and ankle specialist. [3] The Complainant made a complaint to the College that despite her long history of pain she was not properly diagnosed or treated until late in 2016 when an MRI ordered by a foot surgeon identified a specific injury in her right foot which she now believes was the source of all her ailments. She alleges that the injury to her foot was caused by improperly used heel lifts. [4] Following an investigation, the Registrar of the College (the Registrar ) issued the Disposition under s.32(3)(c) of the Act which Disposition is deemed under s.32(5) to be made by the Inquiry Committee. The Disposition concluded with the finding that the medical care provided by each of the Registrants was consistent with standard and appropriate medical practice. [5] The Complainant made extensive submissions to the College and Review Board during this process. Clearly the Complainant feels deeply that the Registrants failed to listen to her complaint about her foot and failed to identify the real source of her chronic pain. She states her belief that degenerative issues in her lumbar spine are a product of the unidentified heel-lift injury. [6] Having considered all the evidence before me, I conclude that the Disposition was adequate and reasonable, and my order is that the Disposition be confirmed. [7] Based on the Complainant s submissions, I believe that my order is not the outcome she wants; however, as set out below, my order is the one that is consistent with the evidence. The Complainant made extensive submissions and raised many serious allegations. In this matter, the records are very legible, clear and complete, the College conducted a proper investigation and I find the Disposition aligns with the evidence. [8] I extend my sincere sympathy to the Complainant for the pain she has suffered for many years and hope that my decision may allow her to move forward with treatment for the now identified injury to her foot and that this will relieve her other structural problems and chronic pain. II REVIEW BOARD [9] The Review Board exists in part to provide, upon an application for review by a complainant, an impartial and objective review of a complaint disposition of an Inquiry Committee. These are reviews of college investigations and dispositions and not fresh investigations or fresh dispositions of the complaints. My mandate is to determine

3 whether the Inquiry Committee conducted an adequate investigation and whether its disposition of the matter was reasonable. [10] The Review Board utilizes a two-stage hearing process as set out in Rule 44 of the Review Board Rules of Practice and Procedure for Reviews under the Act. To proceed to a Stage 2 hearing I would need to find at Stage 1 the need for further submissions from the College and Registrants prior to being able to properly adjudicate this matter. Given the very full investigation and submissions, I have determined that I can fairly, properly and finally adjudicate this matter on the merits without the need for further submissions. III BACKGROUND [11] The Complainant made office visits to Registrant A, a family physician, on many occasions since September Her reason for attending in 2007 was neck pain following a motor vehicle accident. In 2008 the Complainant attended reporting poor sleeping and chronic fatigue. Issues involving nasal congestion, sleep apnea and daytime drowsiness were discussed at length. Bloodwork, cholesterol and blood sugar tests were requisitioned but the Complainant did not make follow-up appointments as requested. [12] In March 2009, the Complainant attended complaining of sleep problems and a sore throat. She was referred to an ENT surgeon and because her blood pressure was elevated repeat blood work was requisitioned. The Complainant did not undergo the blood work. [13] In December 2009, for the first time, the Complainant reported low back pain and occasional sciatica. She reported that this originated from a fall down stairs 15 years earlier. She also reported neck pain and headaches. She disclosed that she had previously seen a chiropractor and a physiotherapist. She did not complain of any foot pain. A lumbar spine x-ray was done and the Complainant was asked to book another appointment to review this and a full physical. She did not make that booking. [14] In March 2010, the Complainant attended with some vision issues and some low back pain. She had been seeing a physiotherapist and had been receiving intermuscular stimulation therapy. An ultrasound and renal blood work were ordered. She was also referred to an ophthalmologist. There was no note of a foot problem at that time. Subsequently in July when she attended she disclosed some stress issues, legal problems, chest tightness and sleep problems. She was prescribed some sleep medication. In September blood work revealed that she suffered from diabetes. She was referred to a diabetes clinic which she did not attend. [15] In November 2010, the Complainant again talked about her low back pain and on this occasion described it as radiating to her right leg and foot. Registrant A diagnosed the problem as likely to be sciatica and the Complainant was referred for physiotherapy. [16] In January 2011, the Complainant again reported back pain which she related to her fall down the stairs. She disclosed at that time that in 2010 she had purchased a

4 heel lift recommended at a physio clinic and increased the lift height twice since then. She said that it seemed to make things worse. She reported that the leg pain now radiated into her foot. Registrant A did a physical examination and booked an MRI of the lumbar spine. [17] Although the MRI report was still pending the Complainant was seen on July 26, 2011, when she reported right foot numbness but that her back was much better. She disclosed that of her own volition she was purchasing orthotics for a possible Morton s neuroma. [18] The MRI report showed multilevel degenerative disc changes and compression of right L5 and S1 nerve roots. The Complainant was seeing a chiropractor and was provided with a referral for massage therapy, physiotherapy and acupuncture. [19] In March 2012, the Complainant reported persistent right knee problems. A full examination was done and x-rays ordered. The Complainant was referred to Registrant B, an orthopedic surgeon. [20] The Complainant was seen by Registrant B on May 15, 2012, for a consultation regarding a complaint about pain now in her left knee. Registrant B ordered an MRI of the left knee. [21] The Complainant was seen by Registrant B and in August 2012 reported some improvement in her right foot. She also reported that she was seeing a podiatrist who advised that she had plantar fasciitis or a neuroma. [22] Registrant B met with the Complainant on December 5, 2012, and discussed the option of arthroscopy for a medial meniscal tear. The Complainant chose not to undergo surgery. [23] In June 2013, the Complainant again attended Registrant A complaining of a buckling in her right knee. She was again referred to the orthopedic surgeon. In November that year Registrant A requisitioned a further MRI for the right leg. The scan showed a right lateral meniscal tear. [24] Registrant B consulted with the Complainant again in January They discussed the option of arthroscopy but again the Claimant declined this option. [25] On a third referral by a foot specialist Registrant B responded that he did not generally evaluate foot conditions but the Complainant attended anyway on July The Complainant at that visit stated she did not have knee pain but back, buttocks and right ankle pain. Registrant B then referred the Complainant to a physician who specialized in foot and ankle issues. [26] As follow-up, Registrant B discussed with the Complainant the findings of the hip x-rays and told her that she had severe arthritis of her left hip. He offered the option of hip replacement. Registrant B did not hear from the Complainant again.

5 [27] In April 2016, Registrant A reviewed many of the problems the Complainant had over the years in regard to family issues, mood changes and sleeplessness. She reported being overwhelmed and having mobility issues. The Complainant acknowledged that she had been offered surgical procedures but had declined them. The Complainant talked about the amount of money she had spent on various orthotics and therapies without benefit. [28] The Complainant s final visit with Registrant A was in April [29] The Complainant submits that despite all of the visits she had with the Registrants they failed to diagnose and offer adequate treatment for her persistent pain issues and failed to identify that she had a physical injury in her right foot caused by her use of heel lifts. The Complainant maintained this physical injury was the cause of all of her pain in her right lower extremity. [30] The Inquiry Committee, following receipt of the complaint, conducted an investigation and provided the Disposition which included a detailed review of their findings and the rationale for their conclusion that the medical care provided by each of the Registrants was consistent with standard and appropriate medical practice. [31] Following receipt of the Disposition, the Complainant filed her Application for Review and subsequently her Statement of Points. IV COMPLAINANT S STATEMENT OF POINTS AND DISCUSSION [32] The Complainant submits in the final paragraph of her seven page submission that she agrees that Registrant B provided an expected standard of care. [33] The Complainant says that she disagrees with the report of the investigation that Registrant A is not responsible for the outcome and duration of my pain and injury. (I note that this was not a finding in the Disposition). [34] The seven page submission is a detailed disagreement with the manner in which she was medically treated by Registrant A and her disagreement with his diagnoses and remedies offered. She alleges he failed to adequately investigate the injury in her foot caused by her use of heel lifts and to recognize that her random body pains were by-products of this foot injury. [35] The Complainant does not claim that the investigation was inadequate but believes that the Disposition was not reasonable. She submits that there should have been formal disciplinary charges against Registrant A. It is submitted that Registrant A should have been required to commit to remedial activities or implement changes to his practice. [36] Prior to setting out my decision on the adequacy and reasonableness of the Disposition, I provide for convenience, the key sections of the Act relevant to this matter.

6 V STATUTORY PROVISIONS GOVERNING THE REVIEW BOARD [37] The Disposition in this matter was made by the Registrar in accordance with the provisions of s.32(3)(c) of the Act and was reviewed and accepted by the Inquiry Committee in accordance with s.32(5) of the Act. Hence it is considered to be a disposition of the Inquiry Committee. [38] Section 50.6(5) of the Act defines what the Review Board must consider: On receipt of an application under subsection (1), 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. [39] Section 50.6(6) of the Act stipulates that a review under this section is a review on the record. The record, in this context, refers to the record of investigation provided by the College (the Record ) and the submissions of the Complainant. [40] Section 50.6(8) of the Act stipulates that upon completion of its review under this section, the review board may make an order: (a) confirming the disposition of the inquiry committee, (b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or (c) sending the matter back to the inquiry committee for reconsideration with directions. [41] In addition to the Act, the Review Board is guided by the principles of administrative law. Specifically, I draw the Complainant s attention to a well-established principle set out in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R At para. [3], This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable. [42] Consistent with the guidance set out in para. [41] I have not commented on every issue raised by the Complainant. Rather I have considered the Disposition and the Complainant s submissions in the context of the record as a whole. VI ADEQUACY OF THE INVESTIGATION [43] As set out in the Act, I must, on review, determine the adequacy of the investigation. The investigation that was undertaken by the inquiry committee need not have been a perfect investigation but it must have been adequate. What is considered adequate will differ from case to case depending primarily on the seriousness of the issues raised in the complaint and the findings of the investigation.

7 [44] What constitutes an adequate investigation in the context of the Review Board was well defined in Review Board Decision No HPA-0001(a) to 0004(a) paras. [97] and [98] which reasoning I have adopted herein: [97] 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. [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 determining whether an investigation was adequate in the circumstances. [45] The test of adequacy will be met if I am satisfied that the Inquiry Committee took reasonable steps to obtain information relevant to their assessment of the Complaint. This test can be met without exhausting all possible avenues of pursuit in the quest for investigative information. [46] In this matter, I find in summary that, upon receipt of the Complaint, the Inquiry Committee: (a) Provided a letter to the Complainant explaining the process; (d) Provided a letter to each of the Registrants explaining the process, providing the Registrants with a copy of the Complaint and requesting a response to the Complaint; (e) Obtained responses from each party including both Registrants and their medical records; (f) Provided the Complainant with the Registrants responses; (g) Engaged in discussions with the Complainant and received her responses to the Registrants responses; (h) Provided the Complainant s responses to each Registrant and subsequently received each of their further responses, and (i) Prepared the Disposition with a detailed record of the Complainant s medical history with each of the Registrants and several other healthcare providers together with a careful analysis of the facts and provided it to the Complainant and the Registrants. [47] I have considered the Complainant s submissions and I note in particular that the Complainant does not submit the investigation was inadequate. [48] There is no information before me that would lead me to conclude that further investigation by the Inquiry Committee was warranted. I find that the Inquiry Committee

8 conducted an investigation that was appropriate for the facts in this case and I have determined that the investigation was adequate. VII REASONABLENESS OF THE DISPOSITION [49] The Review Board is provided by legislation with the jurisdiction to define and apply reasonableness within the context of the reforms of the Act which created the Review Board, whose purpose it is to ensure an appropriate degree of accountability on the part of the Inquiry Committee. The Review Board is not to ignore what the Inquiry Committee has done. Rather, the Review Board is to determine the degree of deference to be extended to the Inquiry Committee that is appropriate in particular circumstances and, as it is not a court, the test of reasonableness will necessarily reflect the Review Board s specialized role and expertise. [50] In my view, a functional definition of reasonable that accords with the current state of the law is whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. A reasonable disposition should be transparent in that it is clear as to how the Inquiry Committee arrived at its conclusion, intelligible in that it is clearly expressed and easy to understand, and justified in that the reader should be able to understand the factual and legal foundation for the Inquiry Committee s conclusion. This is the standard against which I have assessed whether the Inquiry Committee s disposition was reasonable. [51] In the Disposition, the Inquiry Committee presented a history of the case that aligns with the evidence in the record and as provided by the Complainant and the Registrants. The full and detailed account of the Complainant s multifaceted medical issues leads to a clear, understandable and transparent basis for the conclusion. It is expressed in easy to understand language. [52] The fact that at the end of the day an untreated foot injury was identified does not mean that the care provided by the Registrants was inadequate based on the history and information provided by the Complainant over the years. Amongst her many concerns, she complained of pain in her right hip, right knee, right ankle and left knee. The Record shows that all of these were addressed with various medications, scans and referrals to appropriate specialists. [53] The Complainant has provided several self-identified and research-sourced theories as to the source of her continual pain but there is no professional evidence in the Record to support these theories or that they would have resulted in any variation of her treatment or the ultimate outcomes. [54] The Inquiry Committee possesses the expertise to consider whether the overall care provided was within the standards of appropriate medical practice. I find that the Inquiry Committee understood the issues, addressed those issues and made a decision that is transparent, intelligible and justified. In this case the Inquiry Committee found that the care provided by the Registrants was appropriate and I find no reason in the Record to question this conclusion. I find that the Disposition is rationally supported by the evidence and that it is reasonable in the circumstances.

9 VIII CONCLUSION [55] In the course of this review I have considered all of the information before me whether I specifically referenced it herein or not. [56] For the reasons presented above, I find that the investigation of this complaint was adequate and the disposition was reasonable. Having made these determinations, I confirm the Disposition of the Inquiry Committee. John M. Orr John M. Orr, Q.C., Panel Chair Health Professions Review Board