Health Professions Review Board Suite 900, 747 Fort Street Victoria British Columbia Telephone: 250 953-4956 Toll Free: 1-888-953-4986 (within BC) Facsimile: 250 953-3195 Mailing Address: PO 9429 STN PROV GOVT Victoria BC V8W 9V1 Website: www.hprb.gov.bc.ca Email: hprbinfo@gov.bc.ca DECISION NO. 2012-HPA-064(a);2012-HPA-065(a);2012-HPA-066(a);2012-HPA-067(a) (Grouped File: 2012-HPA-G10) In the matter of an 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 an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of BC COLLEGE AND: A Physician REGISTRANT 1 AND: A Physician REGISTRANT 2 AND: A Physician REGISTRANT 3 AND: A Physician REGISTRANT 4 (Collectively, the REGISTRANTS) BEFORE: David A. Hobbs, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions concluding on February 21, 2013 APPEARING: For the Complainant: Self- represented For the College: For the Registrants: Sarah Hellmann, Counsel Self-represented I INTRODUCTION [1] The Complainant applies for review by the Review Board of a disposition of the Inquiry Committee dismissing his complaints against four Registrants regarding the advice given to and behaviour towards him concerning his injuries from a motor vehicle accident. Notwithstanding the Registrar, duly authorized, conducted the investigation, disposed of the complaint and signed the disposition letter, s. 32(5) of the Act provides the disposition is considered to be a disposition of the Inquiry Committee and will be referred to herein as such.
DECISION NO. 2012-HPA-064(a);065(a);066(a);067(a) Page 2 II BACKGROUND [2] The Complainant suffered a motor vehicle collision on April 18, 2006 and states in his complaint that I sustained serious cervical and lumbar spine injuries. A civil lawsuit regarding the collision and the Complainant s injuries is mentioned in the record. The Complainant was born on September 22, 1943, presently being 69 years of age. [3] A lawsuit is an adversarial process. As is to be expected in such a process, the parties are typically opposed on the critical question of defining and separating the injuries caused by the motor vehicle collision from pre-existing medical conditions such as aging and degeneration of the body. Any plaintiff has an obvious financial interest in attributing more of the injuries and symptoms to the motor vehicle accident to increase damages recoverable whereas the party at fault for the collision and the party s insurer have the opposite goal. [4] So-called whiplash injuries from motor vehicle collisions are common, often involving soft tissues, though other parts of the anatomy such as the spinal cord, nerves and discs may be involved. It is sometimes the task of physicians such as the Registrants to explain the injuries or conditions present, the cause behind the presence of an injury or disease, the treatment plan and prognosis. [5] In short, the Complainant disagrees with much of the advice, treatment and opinions of the Registrants. The Complainant filed a 24 page handwritten complaint with the College dated December 28, 2010 setting out the original complaints against the first three of the four Registrants and another physician who is no longer pursued as part of this process. In addition, on March 5, 2011 the Complainant expanded this complaint to include Registrant 4. [6] The Complainant says that Registrant 1, an orthopedic surgeon, was negligent in opining in a medical legal report prepared in 2007 that his injuries were of a soft tissue nature and that he suffered from chronic pain. Registrant 1 was opining on conditions caused by the motor vehicle accident. The Complainant says, in reality, he had a herniated disc and thoracic outlet syndrome. The Complainant read Registrant 1 s report for the first time in June, 2010 after he had changed personal injury lawyers and received a copy of the report from his new lawyer. [7] During 2007 to 2010 the Complainant says that he obtained x-rays, CT Scans and isotope imaging in Alberta and Saskatchewan whereby he learned how serious his problem was. During this period the Complainant reports that he was having trouble walking, his pain was getting worse, he experienced shooting pain to his hip and suffered headaches. In 2008 the Complainant reports he experienced tingling in his left hand and arm. The Complainant also experienced a drooping eye lid. He reported that a doctor in Los Angeles who told him the eyelid drooping was caused by compression on the nerves in his spine. [8] The Complainant says that doctors and medical institutions in the United States have opined that the Complainant is in need of cervical spine surgery. Images taken were sent to a hospital in Spain and another hospital said to be the world s top spine surgery hospital. [9] The Complainant says that Registrant 1 did not advise him in 2007 of all the things he has learned from other health care providers and institutions as discussed above.
DECISION NO. 2012-HPA-064(a);065(a);066(a);067(a) Page 3 Registrant 1 was not a treating physician and was providing a medical-legal opinion relative only to the motor vehicle collision. [10] The Complainant saw Registrant 2 s chart notes in 2010. The Complainant was critical of Registrant 2 s attitude displayed during his visit at a clinic in July, 2010. The Complainant says Registrant 2 said the Complainant was wasting his time and reported in his chart notes that the Complainant was walking fine with no serious injury following the 2006 motor vehicle accident. Registrant 2 s recollection of seeing the Complainant on July 11, 2007 and chart notes indicate that the Complainant wanted to update his medical history arising since his motor vehicle accident and his lawyer had requested medical records from Registrant 2 resulting in delivery of the chart notes. [11] The Complainant saw Registrant 3, a specialist, on February 15, 2010 on a referral from another physician. The Complainant says that during the examination Registrant 3 put his hand on the Complainant s head and the pressure and movement applied exacerbated his symptoms back to what they were in 2008. I note that in such an examination range of motion of the head and neck would be examined. The Complainant says Registrant 3 was negligent in this regard. Registrant 3 says that his examination of the Complainant was normal, not forceful and would not have produced a spinal cord injury. [12] Registrant 3, in his letter of response dated February 22, 2010 to the College s investigation explains that, in his opinion, the 2006 car accident did not cause the multiple level disc herniations the Complainant is suffering from. Registrant 3 says the changes are multi level degenerative changes in the Complainant s neck as a result of slow onset degeneration occurring over years and punctuated by specific episodes of disc herniations that occur from time to time in people due to genetics and aging. [13] Registrant 3 s opinion above is consistent with many other opinions contained in the record and the x-rays and imaging studies. The Complainant disagrees with this opinion and also disagrees with the proposition that surgery will not correct the disc herniation. [14] A neurosurgeon that saw the Complainant one time on February 14, 2011, in his response letter dated April 14, 2011 to the College, explains that surgery does not repair a herniated disk. Surgery may result in decompression of the spinal cord or nerve roots by removing herniated disk fragments. This explanation informs how a herniated disk, due to degenerative process, may increase compression of the spinal cord or nerve roots resulting in nerve related symptoms such as tingling in the hand and arm as reported by the Complainant. [15] Given the Complainant s December 28, 2010 letter of complaint against three of the Registrants named in this application for review, the College wrote the three Registrants on February 14, 2011 requesting their response to the complaints and related records. The College also contacted four other physicians, all of whom had treated the Complainant. [16] On March 5, 2011 the Complainant expanded his complaint to include Registrant 4. The Complainant saw a medical report prepared by Registrant 4 on March 5, 2011 and immediately prepared a complaint to the College. The Complainant said in his complaint that he saw Registrant 4 on or about November 1, 2010. The Complainant said he had given information to Registrant 4 and wanted a letter prepared for the Medical Services Plan to cover the cost of surgery out of the country. The Complainant said Registrant 4
DECISION NO. 2012-HPA-064(a);065(a);066(a);067(a) Page 4 ignored the information provided from doctors in Spain, Korea and the U.S. of A. and flatly refused to write a letter to the Medical Services Plan. [17] The College wrote Registrant 4 on March 25, 2011. Registrant 4 in his letter of response dated April 14, 2011 provided his consultation report regarding seeing the Complainant one time on November 1, 2010 wherein he expressed his opinion as a neurosurgeon that he did not think surgical treatment was advisable. [18] On June 8, 2011 the College invited the Complainant to provide no later than June 23, 2011, any new information he might wish the College to consider. The Complainant wrote the College on June 21, 2011 repeating the allegation that Registrant 3 had been negligent in how he put his hand on the Complainant s head to assess range of motion. [19] On October 26, 2011 the Complainant wrote the College explaining that he was not making a complaint against certain physicians and repeated aspects of his complaint against the Registrants. [20] In November and December, 2011 the Complainant wrote the College providing information from a spinal care centre. [21] On January 18, 2012 the College provided a 10 page letter to the Complainant (the Decision ) setting out the decision of the Registrar to conclude the matter of the complaint pursuant to s. 32 (3) (c) of the Act. The Registrar concluded the complaint could not be substantiated and was not warranted. The Registrar found that the Registrants provided sound advice and good medical care. [22] The Decision explained that the Registrar sought input from the Registrants and four additional treating physicians. The Registrar acknowledged the additional correspondence of the Complainant and advised that he had also considered all the medical records, CT Scans, MRI reports, x-ray reports, documentation from foreign clinics, institutions and doctors, consultations, legal process and other information from various physicians, physiotherapists, chiropractors and other health care providers. The Decision recited the background, summary of the complaint, summary of the responses, summary of supplemental information, analysis and conclusion. [23] The Decision explained that the medical records show the Complainant had a very significant degree of spinal stenosis (narrowing) especially in the cervical spine. Treatment would require enlargement of the narrowed space by removing the back of the vertebrae, which is an extensive operation that would also lead to spinal fusion. The indication for such surgery is said to be pressure on the nerves. The Complainant s degenerative disease is evident at multiple levels in both the cervical and lumbar spine. Symptoms for neck and lumbar spinal problems from a motor vehicle accident would be apparent at the time of the accident or very shortly thereafter. There is no question the Complainant has very significant disease of the cervical and lumbar spine of a chronic degenerative nature from which he unfortunately suffers, but the Registrants and other physicians don t attribute the disease to the motor vehicle accident. The Decision sets out all the aforesaid conclusions. [24] On March 7, 2012 the Complainant filed four applications for review stating that he received the Decision on February 13, 2012. To the applications for review the Complainant attached a 79 page report. All four applications for review are identical in that
DECISION NO. 2012-HPA-064(a);065(a);066(a);067(a) Page 5 they state: Please see my 79 page report that I made in order to responds to numerous errors, misrepresentation, lies and covering up the real events and issues. [25] As to the relief being sought by the Complainant all 4 applications state: A proper investigation of the physicians I made complaints about. III ANALYSIS [26] The role of the Review Board on applications such as these is set out in s. 50.6 (5) of the Act which provides: 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. [27] The Complainant says that the Registrar s investigation was not proper. Upon reviewing the 79 page report attached to the applications for review it is apparent that the Complainant disagrees with the opinions of the Registrants and Registrar. However, the Complainant does not identify what additional efforts should have been made by the Registrar to more adequately investigate the complaint. In my view the investigation was thorough and the Registrar considered all the information, demonstrating a good grasp of the evidence that was material to the complaint. The record is 340 pages in length and the content thoroughly sets out the history of the Complainant s opinions, treatment, and opinions of numerous health care providers and institutions. The Registrar invited the Complainant to provide new information; such further information was provided and considered. [28] In the 79 page report the Complainant argues that the Registrants were negligent and owed him a duty of care which they breached. This type of allegation is not for the College to adjudicate. The function of the College as a regulator is the protection of the public, not to adjudicate allegations of negligence unless such allegations suggest a physician poses a risk to the public. The Complainant says in his 79 page report that: Hundreds of law firms and court cases based on scientific facts have proved that auto accidents cause herniated discs. [29] The short answer is, if the Complainant wishes to prove that his herniated disks are caused by the April 18, 2006 motor vehicle accident, the forum for deciding such an issue is the appropriate court via expert opinion testimony and not the College. Many of the physicians, including some of the Registrants, hold a different opinion on the cause of the Complainant s herniated disks but, that does not mean they have acted in some manner that deserves regulatory enforcement by the College. Clearly in this case many of the treating physicians and Registrants hold the same view as to the cause being a degenerative process unrelated to the motor vehicle accident and there is much evidence to support such a view in the record. [30] If the Registrar concludes, as is the case here, that the Registrants have provided good, sound advice and treatment to the Complainant, it is not the role of the Review Board to second guess such a conclusion. In this regard see Review Board Decision No. 2011-HPA-0032(a) at paragraph [22]. Many authorities set out the principle that the Complainant is not entitled to a perfect investigation but, merely an adequate investigation
DECISION NO. 2012-HPA-064(a);065(a);066(a);067(a) Page 6 depending on the facts. In this regard see Review Board Decision Nos. 2009-HPA- 0001(a)-0004(a) at paras. [97] and [98]. In my view the Registrar took steps to obtain the key information to permit the Registrar to make an assessment of the complaint to determine if the care and conduct of the Registrants was satisfactory. [31] The Decision which disposes of the complaint is a reasonable disposition in that it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as discussed by Review Board Decision Nos. 2009-HPA-0001(a) 0004(a) at paras. [90] [92]. [32] The Complainant submitted further material and submissions by letter dated October 17, 2012 to be considered by the Review Board. The College submits that this additional information and submissions are lacking in evidentiary value and should not be ascribed any weight. I agree with the College s submission that the opinions set out in this additional material carry little or no weight and constitute speculation. The CT scan report provided by the Complainant mentions the earlier discussed findings of degenerative change as noted in earlier radiological tests. [33] The Complainant provided an 87 page handwritten reply to the College s Statement of Points with attachments comprising 65 pages of material. This reply material is more in the nature of a repetition of submissions made by the Complainant in earlier materials filed. Allegations of negligence and disagreement with opinions continue to be repeated by the Complainant in this material. I do not find in this reply material any new discussion of additional investigative steps that the Registrar might have taken to obtain key information that might have changed the Decision. The reply contains statements of issues of negligence and conspiracy regarding lawyers, health care practitioners and institutions who are not party to the original complaint or this application for review. Such submissions do not constitute a proper reply. Further, the reply has statements such as as I have said before... by which the Complainant acknowledges that the reply is in large measure a repetition of points already made. [34] In my view the Registrar conducted an adequate investigation and the disposition is reasonable. IV CONCLUSION [35] I confirm the disposition of the Inquiry Committee. [36] I have considered the record and all the submissions of the parties to this review whether or not specifically referred to herein. David A. Hobbs David A. Hobbs, Panel Chair Health Professions Review Board April 23, 2013