Complainant v. College of Dental Surgeons of British Columbia

Transcription

1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. College of Dental Surgeons of British Columbia DECISION NO HPA-082(a) June 25, 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: The Complainant COMPLAINANT AND: The College of College of Dental Surgeons of British Columbia COLLEGE AND: A Dental Surgeon REGISTRANT BEFORE: Kent Ashby, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on September 15, 2017 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Greg Cavouras, Counsel Self-represented I. INTRODUCTION II. BACKGROUND 1. Overview 2. History - Evidence and Statements A. History Preceding Extraction of Second Molar (#27) B. Consultations for Extraction of First Molar (#26) C. Consent Form, Concurrent Extraction, Lift and Bone Graft D. Post-Operative Follow-Up and Complications i. Concern and First Fistula ii. Opinion from Dr. B iii. Allegation of No Topical Anaesthetic at Closure of First Fistula iv. Concerns of Second Fistula

2 v. Complainant s Consultations with Other Oral Surgeons and ENT vi. April 13, 2015 Surgery by Dr. E vii. Concurrent Procedures in One Surgery viii. Post-Operative Management 3. Overview - Complaint to Review A. Complaint and Investigation B. Memo #1 of the Investigator to the Committee C. Disposition March 29, 2016 D. Letters to Complainant and Registrant E. Review Sought F. Directions Options G. Memo #2 of the Investigator to the Committee H. Disposition February 28, 2017 I. Letters to Complainant and Registrant J. Continuation of Application for Review III. Role of the Review Board 1. Statutory Review Mandate and Power to Make Orders 2. Review, Not Rehearing on Merits IV. Discussion and Analysis 1. Sequence of Review - Reasonableness of the Disposition 2. What were the Committee s reasons? A. March 30, 2016 letter (First Letter) B. March 10, 2017 letter (Second Letter) 3. Were all key complaint issues addressed? 4. Reasonableness of the disposition on the issues addressed in the Letters A. One step versus two step procedure B. Post-Operative Care C. Informed Consent Risks and Form i. Careful Assessment and Discussion ii. Registrant s Assertions iii. Documentary Evidence 5. Adequacy of the investigation generally V. ORDER

3 I. INTRODUCTION [1] This is a Health Professions Review Board review of a disposition by the College s Inquiry Committee (the Committee ) of a complaint (the Complaint ) by the Complainant. The review was initiated by the Application of the Complainant under the Act (defined in the header) based upon the Complainant s position that the investigation was inadequate and the disposition unreasonable. II. BACKGROUND 1. Overview [2] On November 14, 2014, the Registrant, a certified specialist in oral and maxillofacial surgery, extracted the Complainant s first molar (tooth #26) in a surgery concurrent with a sinus lift and bone graft (the Subject Surgery ). The Complainant had a poor outcome from the Subject Surgery which gave rise to the Complaint. Two months earlier the Registrant had uneventfully extracted the Complainant s second molar (tooth #27). All of this was in preparation for implants. [3] After the Subject Surgery, the Complainant complained of pain, and a small hole (a fistula) opened from his mouth into the sinus on at least two occasions and persisted. The Registrant repeatedly reassured the Complainant that he was healing well. Three other specialists ultimately assessed the graft as failing resulting, five months after the surgery, in one of them opening the fistula at the surgical site, assessing and debriding the area, removing the graft, and closing the fistula. That surgeon then advised the Complainant that the lower part of his sinus lining was missing and that he had suffered bone loss, thus making him an unlikely candidate for implants. The Complainant claims that he continues to have pain and problems including occasional drooling and speech issues. He complained that he was not informed of the risks that occurred, and also complained about his post-surgical care as well as that the Registrant got angry with me and dismisses my questions, and painfully injected him without topical pain reliever. [4] On June 11, 2015, the Complainant contacted the College and filed the Complaint about the Registrant, whose Statement of Points ( SOP ) before the Review Board notes that he is a former senior officer of the College. The Committee appointed a dentist (the Investigator ) to investigate. The Investigator did so and presented a memorandum ( Memo #1 ) to the Committee. At that meeting the Committee simply directed that the file be closed. [5] The Complainant applied to this Review Board for review of the investigation and that disposition. During that process this Review Board identified an option to seek adjournment to reconsider the Complaint. The Committee took up that option and reconsidered the matter after receiving a supplementary memorandum ( Memo #2, which appended Memo #1; collectively the Memos ). After reconsideration the Committee then made the same decision to close the file, but this time directed staff to send a closing letter to indicate that the Registrant s competence to which this matter

4 relates was satisfactory. The Complainant advised the Review Board that he wished to continue his application for review. 2. History - Evidence and Statements [6] In the circumstances of this case, and in order for the reader to understand the Review Board s findings concerning the adequacy of the investigation and the reasonableness of the disposition, it is necessary to identify, in some detail, the information contained in the College investigative record provided for this review (the Record ). Despite that detail I wish to make it clear that this review is undertaken solely for the purpose of assessing the adequacy of the investigation and the reasonableness of the disposition, and not to usurp the first instance role of the Committee. For the convenient reference of the parties, I will, identify source pages of note. A. History Preceding Extraction of Second Molar (#27) [7] In January 2014 the Complainant saw a general dentist, Dr. A, for a new patient exam, disclosing sensitivity originating from his upper second molar (tooth #27). Dr. A removed an inlay finding significant decay and a fracture. Despite treatment, the symptoms did not resolve so Dr. A referred the Complainant to the Registrant for an anticipated extraction of tooth #27 in preparation for an implant. [Record p. 122] On September 10, 2014, the Registrant extracted tooth #27. [8] On October 29, 2014, during a follow-up with the Registrant in relation to the extraction of tooth #27, the Complainant expressed concern about a bad taste and the adjacent tooth #26, the first molar. The Registrant s clinical notes record that they discussed implant options and that he intended to evaluate tooth #26 further 1. [Record p. 230] The Registrant s Patient Contact History ( PCH ) a record of the office staff s interactions with patients - records approximately 30 minutes on this visit between the time the Complainant was seated and when they were finished. [Record p. 220] On the next day (October 30, 2014) the PCH records that staff booked the Complainant for implant/iv on December 10, 2014, and called the Complainant to let him know [the Registrant] recommends pt going to see dds to chk periodontal issues re: bad taste in mouth. [Record p. 220] B. Consultations for Extraction of First Molar (#26) [9] On November 3, 2014, the Registrant and Dr. A spoke about extracting tooth #26. On the same day, the Registrant s staff sought to make an appointment with the 1 On September 21, 2015, the Complainant advised the College that he had no recollection of the October 29, 2015 visit. However, there is no basis to question the accuracy of the clinical records.

5 Complainant for November 5, but he was on vacation and felt the tooth was doing better. The PCH records that, two days later, on November 5, 2014, the Complainant called to say he is having pain in the #26 area. Thinks there is an infection. He is travelling will come see dr [initials of Registrant s colleague] on friday... [Record p. 221] [10] The Complainant saw the Registrant s colleague on November 7 for an emergency evaluation. The Registrant s colleague recorded that he confirmed that it was a good plan to extract tooth #26 rather than have an exploratory endo procedure or other treatment [Record pp. 213, 237]. The Complainant was given prescriptions for an antibiotic and pain relief then scheduled for a consult with the Registrant on November 12, [11] The Registrant s clinical records of October 29 and November 12, 2014, both refer to a discussion of options. Neither record makes any specific reference to a discussion of the risks of post-operative failure or the risks of the procedure (including none of the respective risks of undertaking the procedures in one or two stages) There is also no mention of use of the Registrant s own technique(s) within the procedures (introduction of the patient s own blood as the secret to [his] success and, overstuffing graft material although the parties may differ on whether there was overstuffing ). [12] The PCH for the November 12, 2014, re-consult records an appointment of 23 minutes from being "seated" to "finished". [Record p. 222] The Registrant s clinical record was brief describing the visit as a re-consult regarding tooth #26 with discussion of options re implants + sinus grafting [underlining added]. The suggested treatment was an extraction of tooth #26 with a simultaneous sinus lift preparing for later implants. [Record p. 230] The Registrant s response to the Complaint described the reconsultation as lengthy and added detail regarding the discussion of options but again without any explicit reference to risks. For his part the Complainant denies the consult was lengthy or that he was informed of options, risks, or contingencies if things were to go wrong. C. Consent Form, Concurrent Extraction, Lift and Bone Graft [13] On November 14, 2014, the Complainant stated that I was presented consent forms to sign by the staff at the front office and prior to surgery I paid [the amount], following which they suggested that he go for a walk as the surgery was delayed by 2 hours [Record p. 271] The foregoing was uncontested. However, the content and information provided before signing was contested. The form (the November Consent Form ) is analyzed further below as is the content as represented in Memo #2 and the letter sent to the Complainant following the reconsideration. [14] The Subject Surgery combined two procedures. It included an extraction which created a sinus exposure and sinus membrane tear which the Registrant noted and repaired with collagen. It also included an augmentation (a sinus lift and bone graft).

6 Afterward the Registrant wrote to Dr. A stating that the Complainant will be ready for implants in 6 months. [Record p. 208] D. Post-Operative Follow-Up and Complications i. Concern and First Fistula [15] In the several weeks following the Subject Surgery the Complainant repeatedly saw the Registrant, his colleague and his general practitioner ( GP ). A summary of these visits is set out below: November 19, The Complainant returned to the Registrant for a follow up appointment. No concerns were noted at this time. November 25, The Complainant called the Registrant s office expressing concern about a bad (salty) taste in his mouth and post nasal drip. He saw the Registrant s colleague who took a radiograph and recorded his diagnosis as below, with follow-up arranged with the Registrant for the following week: Some graft material located more superiorly and posteriorly along the left maxillary sinus likely secondary to a very large lift as the patient had very little height to start with. Otherwise graft material appears to be well maintained. [Record p. 239] November 27, The Complainant advised the Inspector that on this day he followed up with his GP because of ongoing concern of infection. There was swelling. The GP advised to follow up with the Registrant. December 1, The Complainant attended his follow up and expressed concerns about possible infection. The brief clinical record expresses that healing was progressing well and contains a three-word line of undecipherable meaning. In response to the Complaint the Registrant wrote to the Inspector adding the detail that his oral hygiene left something to be desired and was recommended that he increase that in the area of surgery. [Record p. 196] The Complainant reacted strongly to that statement, which he alleged was incorrect and which the Registrant had not raised with him. December 3, The Complainant called the Registrant s office and stated that he still had a lot of swelling. The Registrant examined the Complainant and prescribed two antibiotics following previous prescriptions. December 10, The Complainant returned believing that he was healing but said I commented on a sharp object protruding out of the gum and he looked and pulled out a sharp piece of bone left over from the surgery. He said that is common and not to worry. The Registrant made no reference to this in the clinical notes and did not respond to or contest that it occurred. The Registrant s response stated: he was much improved and there was no sign of any oralantral communication, and the Complainant was instructed to finish his antibiotics and return in one week. [Record p. 196, see p. 232]

7 December 17, The Complainant attended for another follow up. He said he advised the Registrant of a bad/foreign taste, chalk like matter leaching into my mouth affecting the neighbouring teeth and the roof of his mouth, as well as numbness. The clinical record makes no mention of this but notes healing well and concludes with the word RE-ASSURRED! [sic]. [16] Regarding re-assurance the Registrant stated to the Inspector:.. I must tell you that every appointment that [the Complainant] attended he persistently questioned how the surgery was done, how did I make the wall through the lateral wall of the sinus, how it was all done, how I am sure that it is healing properly etc and again this was repeated to him ad nauseum. [17] Specifically, regarding the last appointment above the Registrant stated: [Record p. 197] [The Complainant] returned again on December 17 th, 2014 where he was still expressing concern regarding the healing of the surgery site. He was at this time beginning to border on a hyper concern almost to the point of hypochondriacism. I spent an extended period of time again reviewing the surgery relating to the oro-antral communication at this time. You will note from the notes in my chart that I reassured him again that the procedure was progressing well. There were no other signs of sinus infection, no post nasal drip, no suppuration through his left nostril nor was there any sign of draining intraorally I did during that time frame prescribe three further doses of further antibiotics for [the Complainant]. [Record p. 196, see p. 233] [18] The Complainant wrote to the College after receiving the Registrant s response. He stated: his assessment of me as a hypochondriac is quite a statement from a surgeon who has yet to acknowledge that all my concerns were founded and reports from other surgeons and doctors point to that. [Record p. 272] (The reports referred to by the Complainant are described below.) [19] I pause here to address the attribution of hypochondriacism to the Complainant. The Registrant used the term (as did his colleague with more certainty 2 ). Memo #2 2 The Registrant s records also include a typed chart note from the Registrant s colleague for December 22, 2014 stating I do believe this patient suffers from hypochondriasis. He is too preoccupied about the details of the surgery etc and has done the same to [the Registrant] on his multiple post-op visits. There is no evidence of acute infection. His post-op visits are excessively long I reassured him that his healing is unremarkable and that he has to come back and see [the Registrant] whenever his next scheduled appointment is scheduled for. [Record p. 240]

8 addressed the use of the expression in a neutral dispassionate manner and did not express it as a fact or diagnosis. In it the Investigator said that the Complainant objects to [the Registrant] suggesting he is verging on hypochondria and says he is not a medical doctor entitling him to arrive at this conclusion. He calls it disrespectful. [Record p. 415] I find that the subject of the comment had an opportunity to respond and that the Investigator was alive to ensuring objectivity in the presentation of that issue in the Memos and did so in a manner that was transparent, objective, impartial and fair. Further I am satisfied that there were no aggravating factors to suggest that a reasonably informed person would perceive that its use improperly affected the investigation or disposition. I find neither the expression or the objection to its use influenced the investigation or the disposition one way or the other. ii. Opinion from Dr. B [20] In early January 2015 the Complainant stated that, at the suggestion of a friend, he consulted another dentist, Dr. B. That dentist advised the Investigator that: I looked at his 26 area, where [the Complainant] had recently undergone a sinus lift / bone graft for an implant in the future. I noticed there was a small hole at the surgical site, which probed very deep, into the sinus. When he held his nose and breathed, bubbles appeared at this surgical site in the mouth [Record, p. 65] [21] Dr. B informed the Registrant of his findings. [Record p. 66] The PCH for January 5, 2015 records Dr. B s contact as follows: [Dr. B] called and said implant [sic] are failing he said he d phone back with more info. He called back and said patient went to him for second opinion and they said the sinus tx is failing he is able to blow bubbles through the treatment site? [Staff Name] has texted [to the Registrant] Dr. [B s] cell phone. [Record p. 224] [22] The Registrant s office them made an appointment with the Complainant for January 8, iii. Allegation of No Topical Anaesthetic at Closure of First Fistula [23] The Registrant asserted to the Investigator that [the Complainant] began to seek other opinions at this time because of his over concern regarding his healing and the concern of the success of the surgical procedure [Record p. 196, underling added] (The underlined portion being the Registrant s view that the Complainant s concerns were excessive.) Without making specific reference to contact from Dr. B, the Registrant stated: He did return on January 8, 2015 where there was a small oro-antral opening and it was at that time that I did a sliding buccal flap closure to close the sinus opening. I recall very well doing that sliding flap and indicating to [the Complainant] that the healing

9 superior to that in the area of the sinus grafting appeared to be progressing very well and this closure should solve the concern regarding any opening [Record p. 196] [24] The Complaint alleged that, at this reparative surgery, the Registrant appeared displeased with him and that the Registrant introduced local anesthetic in three injections without first applying the expected topical anesthetic to relieve the pain from those injections. The Complainant described this as a Most painful and traumatic experience [Complainant s emphasis]. [Record p. 3] (The Registrant did not address this allegation and the Memos did not note its absence or disclosed investigation of the issue.) iv. Concerns of Second Fistula [25] The Registrant s response to the investigation stated that he saw the Complainant at least three further times in January 2015 (January 14, 21, and 28) and that there was no sign of an oro-antral fistula nor was there any sign of break down in the sinus grafting area... [Record p. 196] [26] The Complaint stated that the bad toxic bitter taste of bone grafting material leaching reappeared days after the Registrant removed the stitches on January 21, [Record p. 273] The Registrant s January 28, 2015, clinical note is very brief stating only that the site was healing very well and that there was No OA fistula. There is no reference to a complaint of bad taste. [27] The day before that visit the Complainant returned to Dr. A for an examination of the surgical area due to his ongoing concerns. About half a month later the Complainant saw Dr. A again. Dr. A advised the Investigator of that visit, stating: On February 16, 2015, [the Complainant attended my office for me to check his mouth and I found a small hole in the tissue covering the crest of the alveolar ridge where #26 was extracted. With minimal pressure, I traced the opening with a small gutta percha point. I ed the P.A. to [the Registrant] and he had [the Complainant] return to his office shortly thereafter. [Record p. 122, underlining added] [28] The Registrant s PCH records the following for February 16, 2015: [Dr. A] called to say he saw pt. today and pt. has intra oral fistula and needs to be seen. [Record p. 225] [29] The Registrant had an appointment with the Complainant on February 18, 2015, which he described as follows: [The Complainant] then returned on February 18 th 2015 where he continued to complain of a bad taste at various times and suggested he could feel the lateral wall of his jaw expanding when he breathed through his nose. He had no complaint of nasal or post

10 nasal drip although a gutta percha point was pushed through the area by [Dr. A] in order to demonstrate a communication with the sinus. In my opinion there was no oro-antral communication at that time and again [the Complainant] did not demonstrate any intraoral suppuration and the surgical area was healing very well. He did experience some slight tenderness on the lateral wall of the maxillary area and region of the sinus window and again I placed him on further antibiotics to be sure of good healing in the maxillary sinus and it was at that time that he was sent for a sinus x-ray. I sent [the Complainant] for sinus x-rays in order to rule out an infection in the sinus and enclosed you will find a copy of the report that did show some mild mucosal thickening which would be consistent with the surgery and the placement of graft material without evidence of any acute sinusitis. It was following that x-ray report that I called [the Complainant] personally and reassured him that everything appeared to be healing well and the sinus was healing according to normal process that I expected [Record p. 197, underlining added] [30] At this point I pause regarding the underlined portions in the two quotes to note the conflict between Dr. A stating that [w]ith minimal pressure, I traced the opening with a gutta percha point and the Registrant stating that Dr. A pushed it through. [Record p. 122] The Registrant also stated:... of course at this point of surgical management we were only into the third month It would not be inconsistent with the healing at this time for any individual if he was to use an instrument or probe or push through the tissue area and bring about a communication into the sinus because there is still inadequate ossification at this point in time. I told [the Complainant] very clearly that any form of probing is unproductive and could reopen the area. [Record p. 197] [31] Notwithstanding the Registrant s comments on probing he reported finding no oral-antral communication on February 18, 2015 (or at any time after his sliding buccal flap closure over a month prior). [32] On February 25, 2015, the Complainant made his final visit to the Registrant. He stated that I continued to have the same ongoing concerns, while the Registrant advised in the investigation that things were progressing very well, his sinus was stable and again no sign of infection or oral-antral communication. The Registrant also stated he told the Complainant to complete his antibiotics with the hope that the persistent taste that he seemed to express all the time would dissipate and give him a sense of confidence that healing was progressing well. [Record p. 197, see also p. 236] [33] On March 5, 2015, the Complainant ed the Registrant stating that I am still having issues I am not sure what else I can do but by the end of the day the taste of something bitter, toxic, the same taste I had leaching out days after surgery, which I was told was normal. [Record p. 242] The Registrant then referred the Complainant to Dr. C, an ear, nose and throat specialist ( ENT ). The Registrant described that referral as an attempt to help bring some closure to [the Complainant s] concerns which

11 suggests that it was for re-assurance rather than from Registrant uncertainty on the state of healing. [Record p. 199] Writing the referral on March 9, 2014, he stated: I am referring my patient to be assessed by you for ongoing sinus issues. He was referred to me in September 2014 for extraction of #27, and was made aware of the possibility of sinus exposure prior to the tooth being extracted. November of 2014 #26 had to be extracted, and a full sinus lift was performed at that time. In January 2015 there was another small opening of the sinus, and I was able to obtain good closure of the area. At last examination in February 2015 there was no opening, and seemed to be no sign of infection but [the Complainant] is still complaining of a persistent drip and bad taste. [The Complainant] has now been on several rounds of antibiotics. I will mail the original referral with disc of his sinus xray taken... on February 15, [Record p. 247] [34] The Registrant responded to the investigation stating that the Complainant chose to go elsewhere in March 2015 rather than awaiting his return from vacation. Additionally, he stated: You are well aware that all surgical procedures have risk and may require regular follow up. I still firmly believe [the Complainant s] sinus would have healed satisfactorily in my hands. v. Complainant s Consultations with Other Oral Surgeons and ENT [Record p. 199 (last para.)] [35] Prior to that referral but following the Complainant s February 2015 visit with the Registrant, the Complainant asked Dr. A to refer him to a different oral and maxillofacial surgeon for a further opinion. Dr. A referred him to Dr. D. [36] On March 12, 2015, (15 days after last seeing the Registrant) the Complainant saw Dr. D who advised Dr. A of his assessment which was that the Complainant needed prompt surgery. Dr. D responded to the investigation as follows: Examination on this occasion shows healed tissue, however with a likely fistula in the area of the previously extracted #26. He was tender to palpate both buccal and lingual in the 26 area. A few panoramic radiographs were reviewed. The initial post op shows a large left antral graft with a non contained upper portion. The other radiographs were on [the Complainant s] phone. These show the graft to be reduced in size compared to the initial one. There was also a fair amount of radiolucency in the graft.

12 It was my impression that the graft is likely infected and not healing, as it should. I told him it needs to be opened up and checked under a general anesthetic. If the graft was infected and not healed, then it would need to be removed. I advised him that I would not be able to treat him for a while and that he should see someone else, as I felt it needed urgent attention. [Record pp , see pp. 11 and 143] [37] Dr. D was not available to conduct the surgery promptly, so the Complainant saw another oral surgeon, Dr. E, on March 18, 2015 (21 days after last seeing the Registrant). Dr. E advised the College as follows: Upon a clinical examination and review of the radiographs, there was noted a pinpoint opening over the alveolar crest in site 26. This initial findings were consistent with either a non-healing surgical site with the bone graft or an oral-antral communication. Treatment options of exploring and debriding the surgical site and a possible buccal advancement flap to close the opening was reviewed with [the Complainant]. Other flap options to close the surgical site was also reviewed. Additional surgery to add bone would be discussed at a later date if possible. The risks and benefits were reviewed with [the Complainant]. He understood the treatment options and decided to proceed with treatment to explore the surgical site and close the opening. [Record pp ] [38] On March 20, 2015, the Complainant saw Dr. C (ENT) (23 days after last seeing the Registrant). Dr. C recorded as follows (with a copy to the Registrant): CT completed and reviewed: Left max foreign body likely loose piece of max bone within the sinus. Floor of left max sinus inflamed secondary to foreign body reaction. A large amount of the floor of the max sinus is missing. Extensive reaction with the mucous membrane of the sinus. P: patient needs to have the foreign material extracted and then give the fistula time to close. If it doesn t, he will need to have a flap to close the fistula. [Record p. 13, or p. 57 or p. 67] vi. April 13, 2015 Surgery by Dr. E [39] On April 13, 2015 (the 5 th month following the Subject Surgery) Dr. E opened the pin point opening in site 26. He reported to the Investigator that: The area was debrided of inflamed granulation-like tissue, bone grafting material, loose bone fragments, and also a mucous retention like cyst. There was an [approx] 1.25 cm x 1cm bony defect over the alveolar ridge in site 26. The surgery closed the opening, and he was doing well at follow up in April and May 2015, though the Complainant did express some tenderness and numbness in June and July Dr. E suggested that he see Dr. A concerning the numbness of tooth (#24) since the Subject Surgery. He also noted that the Complainant described an odd taste that may be similar to his pre-op condition and may be unrelated. Dr. E suggested a 3D CBCT and a re-consult with Dr. C (ENT),

13 while recommending that he avoid any further bone graft treatment for now. [Record pp ] [40] Dr. E, when interviewed by the Investigator, stated that he did not know the cause of the Complainant s ongoing pain and discomfort while noting that the Complainant is a sensitive individual. He stated that future bone grafting is likely not advisable in this case, with the Complainant s options being limited to no treatment or a partial denture, although he could be reevaluated in the future. vii. Concurrent Procedures in One Surgery [41] Both Drs. D and E, who have the same specialty as the Registrant, advised the Investigator that they do not follow the Registrant s procedure of extracting the tooth and performing the bone graft at the same time because there needs to be sufficient healing before the grafting can occur. Memo #1 cites Dr. D as saying that there are no circumstances under which he would provide the concurrent procedures of extraction and a bone graft and that concurrent procedures are not the accepted standard of care within the surgical community today. [Record pp ; ] [42] Memo #1 cites Dr. E as stating that he too would not have performed the concurrent procedures on the Complainant but that: in some circumstances he occasionally provides both the extraction and the sinus lift/bone graft concurrently, but only if every parameter is perfect. In his practice it is a rare occurrence and would only be in instances where there is no pre-existing infection or defect present. [Record p 428; see pp ] [43] As seen below there was expert radiographic evidence raising such issues. viii. Post-Operative Management [44] Concerning post-operative care Memo #1 set out a succinct summary of the appearance and reappearance of the fistula, as well as the recommendations of the other specialist. (See II.3.B Memo #1 of the Investigator to the Committee below.) [45] The interview of Dr. D by the Investigator (February 1, 2016), records that: In his opinion there was a problem which was allowed to fester. He felt that the graft material should have been removed much earlier as soon as it became evident that there were issues. [Record p. 321] [46] For his part the Registrant stated that he took every available step to bring about good healing, and it is clear that he assessed the state of the Complainant s healing differently than Drs. A and B and than the other three specialists who found a need for removal of the graft. It is unclear whether he disagreed with their assessment of a need for surgical closure of the fistula as opposed to waiting for it to spontaneously close. (I

14 pause here to note that those specialists did not first see the Complainant until 15, 21 and 23 days after the last visit with the Complainant.) [47] On February 4, 2016, the Registrant responded to questions from the Investigator as to whether it would have been prudent for him to have removed the graft material (as was recommended by the other specialists and ultimately done by Dr. E). The Registrant stated: It is unfortunate that [the Complainant] experienced recurrent sinus infections. This is a risk, although in the absence of sinus disease or boney infection, the incident is low. Irrespective of the comments that were made, I am of the opinion that [the Complainant] was in the mid-stages of ossification. Yes, he no doubt had a persistent oro-antral fistula, in reading [Dr. E s] description, this was not a significant defect which responded well to a limited closure. [Dr. E] does not describe penetrating to a large sinus defect requiring extensive curettage. This suggests to me that the healing process was moving along but was retarded by the small sinus opening. I do not concur that the opening into the sinus and doing a total removal of the graft was indicated during the time I was managing the patient. [Record pp ] [48] The Registrant described Dr. E s procedure under general anesthetic as straightforward and minimally invasive which he could have handled in his office upon his return. [49] In terms of travels and care I note that the Investigator advised that Dr. E did not comment on [the Registrant s] post operative management. But he did speculate on impediments to the Registrant promptly seeing the patient an issue not raised by any party noting that [the Complainant] travels a lot, which may have prevented some follow up but that [the Registrant] followed up in providing a second surgical procedure and referring him to an ENT specialist. [Record p. 323] 3. Overview - Complaint to Review A. Complaint and Investigation [50] As already noted, the Complaint was filed on June 11, 2015, during the post - operative period following the April 13, 2015, surgery by Dr. E. Later (July 20, 2015), the Complainant wrote the College a follow up letter which raised the issue whether tooth #26 should ever have been extracted. (Record p. 90) [51] On June 16, 2015, the Committee accepted the Deputy Registrar s recommendation to investigate. [52] The investigative staff followed these steps: Received and reviewed the Complaint and attachments; Requested and received a response from the Registrant;

15 Reviewed the Registrant s treatment notes and clinical records provided; Provided the Registrant s response to the Complainant, and obtained his further response; Provided the Complainant s further response to the Registrant and obtained his further response; Obtained a report and any available clinical records from the Registrant s colleague, and from Drs. A, B, C, D and E; Requested three supplementary external opinions regarding the pretreatment radiographs of tooth 2.6; Interviewed Drs. D and E by telephone; Posed questions and received responses from the Registrant; Met with the Complainant in person, and over the course of the investigation, received several correspondences from him; and Conducted weekly meetings of the complaint team to review investigations and reports. B. Memo #1 of the Investigator to the Committee [53] The Investigator wrote Memo #1 (March 7, 2016), which was a detailed memorandum for consideration by the Committee at its March 29, 2016, meeting. [Record pp ] [54] I pause here to note that an investigator s report is obviously a crucial document for an inquiry committee. The critical importance of such a report is enhanced where it is not accompanied by, underlying investigative records. An investigator s report is relied upon by an inquiry committee to accurately capture the key issues raised by a complaint, and to accurately summarize the key investigative evidence. It may make recommendations or identify potential dispositions that may appropriately be made by the inquiry committee in the circumstances. A report by an investigator involves issues of reliability akin to an expert s report which necessarily requires accuracy, completeness (or transparency of what is missing), clarity, fairness and objectivity. An inquiry committee must not be misled or confused by an investigator s report, not have its role displaced or usurped, and not have its decision arise from undue reliance or improper delegation of evaluation or final decision making by the inquiry committee. [55] If there is an apparent substantive risk that a report misleads or confuses the investigation is inadequate (because the inquiry committee retains responsible for the investigation) and the disposition cannot be reasonable unless it is equally apparent that the inquiry committee overcame the inadequacy, being misled or any confusion. (This need not be burdensome such as in the case of insufficient information where it is shown that the inquiry committee had on-hand access to source records if it was concerned about an insufficiency as distinct from where a memorandum was inaccurate.)

16 [56] Memo #1 summarized the history, allegations and evidence and identified four issues arising on the Complaint: (a) diagnosis and treatment planning; (b) informed consent; (c) patient relations and (d) surgery odontogenic. The chronology of care and symptoms was detailed, and later Memo #1 also identified Post-operative care as an issue. [Record p. 429] It is unclear whether it was to stand alone or to fall within one of the headings (a) to (d). Whatever was intended has no particular relevance within this decision, as for my purposes I will break it out under its own heading as Post-Operative Care when specifically addressing it. [57] Under the heading Complaint Investigator s Comments, the Investigator addressed the issues that may fall under (a) and (d) focusing on the concurrent procedures in a single surgery. This left out any analysis or comment on (b) and (c). [58] The comments on (a) and (d) were critical of the Registrant. The Investigator identified that in the Complainant s circumstances (a large tooth and minimal bone present between the apex of the root and sinus floor), there was a high probability of a fistula following extraction of tooth #26 and that when it occurred the Registrant repaired it with a collagen membrane. She stated that It appears the generally accepted standard of care is to carry out the sinus lift graft procedures as a separate procedure, following an appropriate post-extraction healing period. She also noted this was reinforced by the patient s history of sinusitis, and the pre-treatment x-rays which showed a lesion on one of the roots of the tooth warranting further attention before proceeding with the sinus lift graft on the same day as the extraction. [Record p. 390 or p. 429] That assessment was made having consultations in hand from radiographic interpretations engaged by the Investigator and which found at the very least a suspicion of apical pathology existing prior to the Subject Surgery. [Record pp ; see also p. 425] [59] Concerning post-operative care Memo #1 identified that the Registrant did not diagnose the presence of a fistula until found by the general dentist Dr. B, but that he repaired it. It also noted that a fistula then reoccurred, but the Registrant did not agree with the finding of recurrence by the general dentist (although, as quoted above, he accepted Dr. E s findings stating that the Complainant no doubt had a persistent oroantral fistula ). In regard to resulting failure of the graft and healing the report stated: It was when the patient was examined by the ENT specialist [Dr. C (ENT)], and two oral surgeons [Drs. D and E] that the consensus was reached that a fistula was present. All three were of the opinion that the bone graft was likely contaminated and should be removed at the time of the surgical repair of the fistula. In the opinion of Dr. D, a more rapid response to surgically remove the bone graft, debride and close the wound would have provided the best chance for a favourable long term prognosis. [The Registrant] does not agree and is of the opinion that the graft may have been successful following closure of the second fistula. [Record p. 390 or p. 429] [60] I pause here to address the use of the word consensus in the quote above, which suggests something not shown in evidence; that the three specialists discussed

17 whether a fistula was present to form a consensus that it existed. The evidence is that they each independently determined that one existed, without suggesting that it was so difficult to detect that they needed to discuss it to form an opinion. [61] Memo #1 ended by identifying issues and providing comments and recommendations focused on the one versus two stage procedures as follows: Closing Issues: Diagnosis and treatment planning Post-operative care Weekly Meeting Outcome 9 February 2016 At the Weekly Meeting, the Complaints Team reviewed the complaint and agreed the closing letter to the dentist should strongly recommend that he consider providing a sinus lift and subsequent grafting procedures in two stages rather than one. It agreed that this was a complex case that resulted in a poor result for the patient, but that there were too many variables in this case to make a determination regarding the standard of care. Complaint Investigator s Recommendation Pending a review by the Inquiry Committee, the recommendation is that a closing letter to the dentist strongly recommend he consider providing sinus lift and subsequent grafting procedures in two stages and that the complaint file be closed without further action being taken pursuant to Section 33(6) of the Health Professions Act. C. Disposition March 29, 2016 [Record pp *(corrected page) also at pp ] [62] On March 29, 2016, the Committee met with 13 members (and 10 College staff) in attendance to consider the Complaint. The body of the minute of the Committee reads as follows: The Inquiry Committee considered the memorandum of [the Investigator]. The Committee did not accept the recommendation regarding the closing letter and directed the Registrar to close the file. D. Letters to Complainant and Registrant [Record p. 393] [63] The next day, March 30, 2016, the Investigator sent a letter to the Complainant over her signature and in her voice without any representation that it was sent at the Committee s direction (the First Letter ). The First Letter explained the investigation and outcome tracking much of the substance of Memo #1 and added the following:

18 After a review of all of the information, the Committee acknowledged that there are differing treatment philosophies. It appears other professionals involved in your care would have carried out the sinus lift graft as a separate procedure following a postextraction healing period. The Committee is not, however, in a position to determine that [the Registrant s] approach was incorrect and acknowledges there is a possibility the graft may still have been successful following the closure of the second fistula. [The Registrant] references [Dr. E s] finding that there was no evidence of bacterial infection when the graft was removed. Yours was a complex case with many variables. The Committee acknowledges you suffered a poor surgical result with continuing symptoms that may affect the potential for future graft or implant replacement. However, it cannot conclude that the treatment you received under the care of [the Registrant] was substandard. The Committee is otherwise satisfied that your complaint was brought to [the Registrant s] attention in a meaningful way, that the investigation of your complaint is complete and directed the file be closed. [64] Despite the Committee s rejection of her recommendation regarding concurrent procedures, the Investigator s letter to the Registrant, also dated March 30, 2016, implicitly questioned the perceived prudence of a single stage procedure in circumstances such as these: the Committee could not determine the treatment you provided to [the Complainant] was sub-standard and agrees [the Complainant s] case was complex. [The Complainant] had a history of sinusitis and the appearance of a palatal root with a widened periodontal ligament space and an unfilled medial root visible in the pre-treatment radiographs. Although it is impossible to determine the true nature of the lesion on the palatal root after the fact, there was at the very least a suspicion of apical pathology. It appears other appropriately qualified professionals would have considered a two stage approach more prudent in a case such as this one. We recognize however that a single stage approach may be appropriate in certain circumstances. [65] I note that there is no record of the Committee authorizing the content of these letters as fully or accurately reflecting the acknowledgements and reasons of the Committee, nor direction or authorization to send the First Letter to the Complainant in fulfillment of the Committee s obligation under s.34 of the Act. [66] Indeed, I am unable to determine whether the Committee fulfilled its s.34 obligation without reference to the next letter of March 10, 2017 (the Second Letter ). That letter describes itself as a supplemental disposition letter (collectively the Letters ) to the First Letter a statement dependent upon the Second Letter and its contents being authorized, as discussed further below. E. Review Sought [67] On April 21, 2016, the Complainant filed his application for review. He stated that the investigation did not agree with not even one of [his] concerns and the committee did not accept [his] concerns but dismissed them all in favor of [the Registrant]. He said that he felt that the Registrant had failed in his duty to him, left him with substantial problems that nobody thinks can be rectified and that some form of action is

19 necessary to protect others. He challenged both the adequacy of the investigation and the reasonableness of the disposition. F. Directions Options [68] On December 21 and 22, 2016, I wrote the parties advancing this matter to a Stage 2 to accept submissions from the College and Registrant. At the same time, I noted that the College was at liberty to seek an adjournment and refer the matter back to the Committee for reconsideration taking into account Review Board Decision No HPA-077(a) and 2013-HPA-216(a). Page 2 of my December 21, 2016 letter stated that: Submissions are expected to include addressing: A. the disposition being sufficiently justified, transparent and intelligible; B. the disposition addressing each element of the originating complaint; B. [sic] the disposition falling within the range of reasonable outcomes that are protective of the public interest; and C. the March 20, 2016 letter to the Complainant: i) Compliance as a s. 34 communication of a summary of the disposition, and consistency with the disposition; and ii) the authority to issue it and contents with attention drawn to the reasons. [69] On January 13, 2017, the Complainant submitted his SOP. One issue raised in that document concerns the clarity of the reasons given in the closing letter. The Complainant submitted the following in relation to the First Letter he received: This letter clearly states It was agreed that this was a complex case that resulted in a poor result for the patient, but that there were too many variables in the case to make a determination regarding the standard of care. This I find troubling, these comments that the college writes are all to [sic] vague and express no significant facts to stating the complexity and variables in regard to my procedure. When did my case become complex? Never once did [the Registrant] ever refer to my procedure as complex. I would like to know what the lead investigator and the committee find complex about what appeared at first to be a standard procedure that [the Registrant] has done for decades and takes great pride in telling me so. Standard of care, what is that and how do you define it? [Complainant s SOP p. 2; Record p. 407]] [70] The College applied for an adjournment on January 20, 2017, which application I granted on January 25, 2017, to allow for reconsideration. G. Memo #2 of the Investigator to the Committee

20 [71] The Investigator submitted Memo #2 to the Committee for its February 28, 2017, meeting at which it reconsidered the Complaint. Memo #2 referenced my December 22, 2016, letter and stated: On 22 December 2016, the HPRB Panel Chair posed a series of questions with respect to the Inquiry Committee s process in disposing of the complaint, and referred to two earlier HPRB decisions one of which recommended that the Inquiry Committee be reviewing draft disposition letters as part of its meetings. Taken together, it is fair to say that the Panel Chair was asking the College to establish that the letter delivered to [the Complainant] fairly and accurately represented the Inquiry Committee s disposition. The Panel Chair also invited the College to consider remitting the complaint file to the Inquiry Committee for reconsideration in light of the issues raised both by [the Complainant] and by the Panel Chair with respect to the review and disposition process. [Record p. 414] [72] Memo #2 summarized the previous recommendations and disposition, the Review Board proceeding, and the Complainant s January 13, 2017, letter to the Review Board. Under the heading Investigator s Comments it addressed the Complainant s new allegation that the need to extract tooth #26 was not fully investigated. After quoting several passages from Memo #1 concerning tooth #26 Memo #2 addressed the issue in a manner that I find to be adequate and from which reasons could be formed and a reasonable disposition made on that issue. [See Record p. 417]. [73] Regarding informed consent (which had not been addressed in Memo #1) Memo #2 addressed the point that the post-operative complications [the Complainant] experienced were not presented to him as possible risks, and it presented two paragraphs as a quote from [t]he attached document bearing [the Complainant s] signature from 18 March 2015 (underlining added highlighting a date four months after the Subject Surgery). This is discussed in more detail further below, particularly the quote as a substantive defect. [74] With regard to the concurrent procedures in one surgery, the Investigator reiterated her previous assessment stating Based on the opinion of two other oral surgeons it appears it may have been wiser to carry out the sinus lift and graft as separate procedures, following a post-extraction healing period, particularly when the presenting condition of the tooth was significantly compromised. [Record p. 417] The Investigator reiterated that the evidence of a problem with palatal root warranted further attention before proceeding with a sinus lift the same day as the extraction. [75] Memo #2 concluded by presenting the Committee with three options: Close the file with no further action on the basis that [the Registrant s] competence to which this matter relates is satisfactory. A closing letter to the dentist strongly recommending he consider providing a sinus lift and graft procedures in two stages.