Complainant v. The College of Dental Surgeons of British Columbia

Transcription

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-080(a) February 5, 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, 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 Dental Surgeon REGISTRANT BEFORE: Lorne R. Borgal, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on September 20, 2017 APPEARING: For the Complainant: Self-represented DECISION ON APPLICATION FOR REVIEW OF AN INQUIRY COMMITTEE DISPOSITION DECISION I INTRODUCTION [1] This Application for review under the Health Professions Act, RSBC 1996, c. 183, (the Act ) was made to the Review Board in response to the Inquiry Committee decision communicated to the Complainant in the Complaint Investigator s letter of July 5, 2017 (the Disposition ). [2] The Complainant attended the Registrant s clinic on February 19, 2016, for a root canal procedure. In the weeks following the procedure, the Complainant experienced pain and discomfort which he attributed to the procedure. Subsequently the Complainant attended six other dentists and received varying opinions regarding the cause of his pain. On April 4, 2016, the Complainant had the tooth removed. [3] The Complainant attributes his pain and suffering to the initial root canal procedure completed by the Registrant and made a Complaint to the College. The Inquiry Committee of the College completed a record of investigation (the Record ) which included obtaining information from the Registrant and each of the dentists involved with the tooth after the Registrant. The Inquiry Committee determined that the

2 Registrant met the standard of care expected by the College and concluded without regulatory criticism of the Registrant. [4] The Complainant filed an application for review with the Review Board in which he submits that the investigation by the Inquiry Committee was not adequate. He submits that facts were not uncovered in the investigation and the Inquiry Committee failed to take appropriate actions to protect the public. In submissions, the Complainant offers numerous examples where his view of the history is different from that of the Registrant. He submits that the investigation was not... carried out in an objective and fair manor (sic) and he asks that the Review Board direct the Inquiry Committee to issue a citation against the Registrant if we decide that this is appropriate. [5] For the reasons set out below, I find the investigation was adequate and the Disposition was reasonable. This is most likely not the outcome desired by the Complainant, however, I encourage a full reading of this decision to understand my reasoning. [6] In summary, the Inquiry Committee left no stone unturned in their investigation as they obtained records from each dentist who dealt with the Complainant and the Record shows that they considered the responses. An endodontist who reviewed the Registrant s work on request by the Complainant submits that the root canal completed by the Registrant appeared to be technically well done and to the standards expected of an Endodontic Specialist. [7] An oral surgeon who treated the Complainant following the tooth extraction submits that it was clear that following the extraction there was a left maxillary antrum communication which was not addressed, or for that matter even recognized. Following a review of the tissue biopsy the Inquiry Committee concluded that the oral antrum communication was unrelated to the endodontic procedure performed by the Registrant and that it was most likely a result of the tooth extraction. [8] The Complainant submits that the original root canal performed by the Registrant must be the original source of his pain and suffering. I have considered the submissions and do not find evidence which supports the Complainant s submission. Having found the investigation adequate and the Disposition reasonable, I confirm the Disposition. II REVIEW BOARD [9] The Review Board exists in part to provide, upon an application for review by a complainant, impartial and objective reviews of complaint dispositions of inquiry committees of the health profession colleges of British Columbia. These are reviews of college investigations and dispositions and not fresh investigations or fresh dispositions of those complaints. My mandate is to determine whether the inquiry committee conducted an adequate investigation and whether its disposition of the matter was reasonable. III BACKGROUND [10] Prior to setting out the facts, I remind the Parties that I will not be providing a detailed history of every aspect of this matter. As one might appreciate, with seven

3 dentists involved in treatment of the Complainant and only one of them subject to this review, there is considerable information in the Record. As I set out more fully below at para. [30] the Supreme Court of Canada does not require that I set out all the facts in the Record. Rather, having considered all the facts, I present here an overview of the background in this matter. [11] The Complainant was referred to the Registrant by his general dentist, Dentist A. The Registrant is an endodontic specialist who assessed the Complainant s tooth #26 and diagnosed irreversible pulpitis and acute apical abscess. On January 19, 2016, the Registrant performed a root canal on tooth #26 and advised the Complainant to contact her clinic by phone if symptoms persisted. On January 27 the Complainant sent an to the Registrant thanking her for the treatment and reporting that he was feeling well. [12] On January 29 Dr. A cemented a permanent crown on tooth #26 and submits that it was asymptomatic at the time. The Complainant returned to the Registrant on February 19 for a follow-up appointment. The Registrant submits that he complained of sinus issues but exhibited no symptoms relating to endodontic issues. She recommended that the Complainant consult an MD and that he ask for a referral to an ears, nose and throat specialist ( ENT ). [13] The Complainant was seen by the Registrant again on March 9 after experiencing periods of pain. The Registrant submits that following examination, she found no endodontic symptoms however she did find symptoms that were more of a medical nature and she once again advised him to seek medical treatment. [14] By the end of March 2016, the Complainant moved to a new area of the Province and attended a new general dentist, Dentist B, who found nothing of note other than [t]ooth #26 was tender to percussion and palpation. Dentist B referred the Complainant to an endodontist, Dentist C. [15] In his reporting letter of April 1, Dentist C wrote that A cone beam CT was exposed today and suggests tooth 26 is causing a chronic infection responsible for [the Complainant s] symptoms. [16] On April 4 the Complainant attended Dentist D who removed tooth #26. Dentist D informed the Complainant of what appeared to be a broken file in the root of tooth #26. It was subsequently established that this was not true. [17] On May 24, 2016, the Complainant attended the office of Dentist E, a certified specialist in periodontics. In the reporting letter to Dentist B, Dentist E wrote that she had examined the CT scan taken by Dentist C on April 1 and took another peri-apical film on May 24. The CT scan clearly showed a well-defined dome shaped radiopacity in the left maxillary sinus in close proximity to the roots of 26 and 27. [18] On June 13 the Complainant attended the office of an oral surgeon, Dentist F, who wrote after reviewing the clinical situation, the CT of the sinus and the panorex taken on June 13, 2016, [i]t was clear that following the extraction there was a left maxillary antrum communication which was not addressed, or for that matter even recognized. His diagnosis for the Complainant was chronic sinusitis due to

4 persistent oral antrum communication which he subsequently treated. Dentist F saw the Complainant again on June 21 and June 27 at which time he found no evidence of sinus pain or discharge. [19] In a letter dated August 29, the Complainant wrote Dentist C, noting that in his opinion Dentist C had not offered a whole lot of information during the April 1 appointment. He wrote that he was not sure if he trusted the Registrant as she had told him that the cause of his pain was not a dental problem and shortly after his appointment with Dentist C he was feeling sick enough that he had his first ever panic attack. It was after this that he decided to have the tooth pulled. He asked Dentist C if he had seen a cyst in his sinus. [20] In a letter to the Complainant on September 6, 2016, Dentist C writing in response to the August 29 letter of the Complainant noted that his examination showed two teeth which were treated by root canal. Both treatments appeared to be technically well done and to the standards expected of an Endodontic Specialist. In answer to the Complainant s question, Dentist C wrote The diagnosis of a cyst cannot be made based upon radiographic examination, only after biopsy and histologic examination. Perhaps the Medical and Dental Specialists you have seen can discuss with you the interpretation of their clinical findings and treatment provided. [21] The College received the Complaint on September 26, The Complainant set out in the Complaint that his was a quality of care issue for which the desired outcome was to understand what happened following the root canal completed by the Registrant and what should have happened, in order to help him deal with his newfound anxiety about dental issues. With the Complaint there was a letter which largely set out the history and there were copies of the s between the Complainant and the various parties. IV COMPLAINANT S STATEMENT OF POINTS [22] In his Statement of Points ( SOP ), the Complainant focuses primarily on his perceived discrepancies in the Record with particular attention to assessments made by the Registrant. He submits that I don t feel a fair, complete and objective investigation and disposition would include so many discrepancies and some pretty significant omissions. Throughout the SOP, the Complainant offered submissions challenging, in many instances, what the Registrant had previously submitted regarding information from the other dentists about which she had commented during the investigation. [23] He submits that the Registrant failed to identify his tooth s sensitivity to palpation that was identified by three other dentists in a very short timeframe. He submits that an x-ray which was claimed to have been taken by the Registrant was not (this error was corrected during the investigation when it was recognized that the x-ray had been taken by a different clinic) and he sets out various scenarios involving the Registrant in attempting to relate what is in the Record to his experience. The Complainant submits that he has seen through the process a culture in dentistry where mistakes are swept under the rug with the assumption that it will not harm the patient. He submits, in essence, that the investigation and conclusions of the Inquiry Committee failed him in this instance.

5 [24] The Complainant submits that the Registrant and Complaint Investigator submitted false or misleading information and he seeks an honest answer to his question from the original Complaint which sought to understand what happened compared to how it should have been dealt with by the Registrant. The SOP contains numerous references to information that the Complainant considers inaccurate or in conflict between the various dentists and the Registrant. [25] 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. V STATUTORY PROVISIONS GOVERNING THE REVIEW BOARD [26] The Disposition in this matter was made by the Inquiry Committee and, while not referenced specifically in the Disposition, a decision of the Inquiry Committee is made in accordance with the provisions of s.33 of the Act. [27] 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. [28] Section 50.6(6) of the Act stipulates that a review under this section is a review on the record. [29] 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. [30] In addition to the Act, the Review Board is guided by the practice of administrative law. Specifically, I refer to the 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. [31] Consistent with the guidance set out in para. [30], I have not considered and 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.

6 VI ADEQUACY OF THE INVESTIGATION [32] 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. [33] 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. [34] 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. [35] 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; (b) Provided a letter to the Registrant explaining the process, providing the Registrant with a copy of the Complaint and requesting a response to the Complaint; (c) Wrote six other dentists involved in the patient s care and the Complainant s medical doctor, including with this letter a copy of the complaint and a request for their response; (d) Obtained responses from each party including medical history, treatment records and written responses; (e) Provided the Registrant with copies of the various responses, received her written responses to the submissions and conducted a telephone interview with the Registrant; (f) Provided the Complainant with the various responses, received his responses to the submissions, conducted a telephone interview with the Complainant and engaged in various exchanges with the Complainant;

7 (g) Prepared comprehensive internal reports summarizing the facts and providing the Complaint Investigators interpretation of the dental records; (h) Submitted the matter to the Inquiry Committee and received their decision; and (i) Prepared the Disposition and provided it to the Complainant and the Registrant. [36] I have considered the Complainant s submissions on the adequacy of the investigation which rests primarily on the confusion regarding the Registrant s reference to an x-ray and on the inconsistency between some of the submissions of the Registrant and the other six dentists. The Complainant s concern regarding the x-ray is not without merit, however, that matter was settled during the investigation when it was determined that the x-ray had been taken in a different clinic and the Registrant s submission was corrected. [37] The inconsistency between the submissions of the Registrant and the other six dentists does not make the investigation inadequate. It merely highlights the results of the assessment of the Complainant s tooth by seven different dentists. The challenge before me is to consider the facts in total and not to undertake a reconciliation of each different interpretation by the different dentists. [38] I find the investigation undertaken by the Inquiry Committee to be thorough, comprehensive and complete. No stone is left unturned in this investigation. 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 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 [39] 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 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. [40] 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.

8 [41] I find clear evidence in the Record that the facts were before the Inquiry Committee and that the Complaint Investigator demonstrated her consideration of all the submissions and provided her interpretation of the medical records before her. [42] The Complaint Investigator wrote in her analysis that: The final diagnosis following biopsy of the tissue seems to confirm it was unrelated to a failed endodontic procedure and was in fact sinus epithelium. The oral antral communication was most likely caused during the extraction of tooth 2.6. With respect to endodontics, the radiographic appearance of the completed root canal is a well-executed four canal root canal with obturation to appropriate length. There is no overfill present nor any evidence of extrusion of cement beyond the apex of the tooth roots. In the opinion of the second endodontist, the tooth 2.6 root canal treatment was technically proficient and to the expected standard for an endodontic specialist [43] On January 29, ten days following the root canal performed by the Registrant, the Complainant s general dentist found the tooth to be asymptomatic, meaning it showed no signs of disease or disorder, para. [12]. [44] The Registrant advised the Complainant to seek treatment by an ENT given the symptoms that she saw and advised the Complainant that she did not have the authority to make such a referral. The Complainant did not see an ENT until after he had the tooth extracted. [45] As summarized in the Complaint Investigator s report, a second endodontist, Dentist C determined that the root canal completed by the Registrant was technically proficient and completed to the expected standard, para. [20]. [46] As set out in paragraph [17] above, Dentist E concluded: The CT scan clearly showed a well-defined dome shaped radiopacity in the left maxillary sinus in close proximity to the roots of 26 and 27. [47] It was the oral surgeon who attributed the sinus communication to the tooth extraction, para [18]. [48] It is not my role to interpret the medical evidence but rather to consider the record as a whole in light of the Disposition. In considering the record I conclude that there are numerous facts which point in any direction but that of the Registrant for the Complainant s pain and suffering. [49] In the Disposition, the Inquiry Committee presented a history of the case that aligns with the evidence, provided a clear line of reasoning based on the facts of the case and reached a conclusion consistent with the facts and the law. [50] The Complainant is clearly vested in seeking to find fault with the Registrant. All I can offer is that I have read the entire Record, I have considered all of the evidence including the Complainant's submissions and I find no fault with the decision of the Inquiry Committee.

9 [51] In considering the reasonableness of the Disposition, I find that the Inquiry Committee understood the issues, addressed those issues and made a decision that is transparent, intelligible and justified. I find that the Disposition is rationally supported by the evidence and that it is reasonable in the circumstances. VIII CONCLUSION [52] In the course of this review I have considered all of the information before me whether I specifically referenced it herein or not. [53] For the reasons presented above, I find that the investigation of this complaint adequate and the disposition reasonable. Having made these determinations, I confirm the Disposition of the Inquiry Committee. Lorne R. Borgal Lorne R. Borgal, Panel Chair Health Professions Review Board