May 5, 2011

HPRB: Adequacy of investigation and when an Inquiry Committee must review records of other patients

Administrative Law
Health Professions Review Board
Inquiry and Investigations
Professional Regulation

The Health Professions Review Board found an investigation to be adequate, although the Inquiry Committee of the College of Physicians and Surgeons did not interview or obtain information from a number of potential witnesses suggested by a complainant, as the Committee had considered evidence of nineteen physicians and surgeons concerning the conduct of the respondent registrant, which evidence the Review Board considered to be the best possible evidence of the satisfactory nature of the respondent’s conduct and competence. See Complainant v. College of Physicians and Surgeons of BC, HPRB Decision, No. 2010-HPA-0014(a) (March 17, 2011).

In that case, a surgeon (the “Registrant”) performed hernia repair surgery on a 51-year-old male patient (the “Complainant”) which was completed without any apparent complications. Five days later, the Complainant was readmitted to hospital, suffering from respiratory and renal failure and septic shock. He was transferred to a second hospital where his wounds were reopened and examined. After a seventeen-day stay, the Complainant was diagnosed with coronary problems, and later with cataracts. The Complainant wrote to the College alleging his post-surgery illness and subsequent complications and cataracts were a direct result of the surgery by the Registrant. He also alleged that prior to the surgery, he requested the Registrant use less invasive surgery, but the Registrant informed him (incorrectly) that was no longer available.

During the investigation the Complainant mentioned conversations he had with several persons who were former patients of the Respondent or knew such patients, or were health professionals who knew of the Registrant, who had made comments the Complainant interpreted to be negative. He also provided a printout of a website containing anonymous, negative comments about the Registrant from persons claiming to be either former patients of the Registrant or their relatives. The Complainant also provided names and contact information for seven persons with information establishing the Registrant did not have sufficient skills and ability to be a surgeon, including former patients or their relatives, but only one of which suffered complications after surgery. The Inquiry Committee completed its investigation, after gathering comments from five physicians, reviewing records including notes and reports by many more physicians and surgeons. The Committee concluded the Registrant’s conduct and competence was satisfactory.

The key issue before the HPRB was the adequacy of the Committee’s investigation in the circumstances.

Although the Registrant objected to the Complainant’s evidence as inadmissible character evidence, the Review Board (per Member Silversides) clarified that the role of the Inquiry Committee was not to make findings or decisions about the conduct or competence of the Registrant, but was akin to a prosecutor, who could in certain circumstances inquire into character and reputation before deciding on further action. [41]

The Review Board went on to consider whom the Inquiry Committee should have contacted. The Review Board recognized “[44] … there are cases where it will be appropriate for an Inquiry Committee… to obtain information from other patients of a registrant who have not made a complaint… particularly where that information shows there is a pattern of incompetence or improper conduct.” The Review Board noted, however, the rarity of cases where a single complaint would give rise to a competence issue not limited to the single complaint, and it said that “before seeking such information an Inquiry Committee should receive some credible evidence or other information  in connection with the complaint which indicates that the conduct or competence of the Registrant was not satisfactory.” [44]

The Review Board concluded, in the circumstances, “this is not a case where it would have been necessary, or even appropriate, for the Inquiry Committee to interview or obtain information from any of the potential witnesses suggested by the Complainant.” [47] “Usually the best possible evidence as to whether a medical professional’s conduct and competence is satisfactory is the evidence of other medical professionals who have expertise in the same or a related area.” [48] The Committee considered information and reports from 19 physicians and surgeons. Accordingly, the investigation was adequate. [48-50]

The Review Board also concluded that the Inquiry Committee’s disposition was reasonable, given that none of the information from 19 physicians and surgeons were critical of the conduct or competence the Registrant. [53]

Complainant v. College of Physicians and Surgeons of BC, HPRB Decision, No. 2010-HPA-0014(a) (March 17, 2011)