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Complaint process apparently used as tool against competitors

The complaint process available to doctors by the College of Physicians and Surgeons of Ontario seems to be being used by doctors to take on competitors, says Toronto health lawyer Lonny Rosen.

According to the National Post, two surgeons for a major weight-loss surgery clinic have been cautioned for violating professional rules on advertising. The article says it’s the latest in a string of disciplinary investigations triggered by one of the top anti-obesity industry surgeons in Canada.

Some physicians in the field say Dr. Stanley K. Bernstein routinely makes complaints against his competitors, according to the Post. In at least two instances, the Ontario College of Physicians and Surgeons rejected Bernstein’s complaints as frivolous abuses of process.

“This is an interesting case because it appears that doctors who are specializing in weight loss treatment and competing with one another are using the college complaint process in their competition,” says Rosen, partner at Rosen Sunshine LLP. “And it appears that in some cases, the Inquiries, Complaints and Reports Committee panels reviewing complaints are looking to see if there is a competition aspect to their complaint. Obviously the college’s processes aren’t meant to be used as tools for competition.  However, if a complaint alleges that one doctor is acting inappropriately, for example by breaching the advertising rules, the reviewing committee may not care that the complainant is engaging in similar behaviour.”

The fact the article is published is interesting, says Rosen, “as complaints aren’t public and when a caution is issued, it’s not public either. The fact they were revealed indicates that the doctors involved are sharing their experiences in order to shine a light on how the College processes are being used.”

The college has rules about advertising and they are quite limiting, says Rosen. According to s. 6 of the provincial Medicine Act, “A member may communicate any factual, accurate and verifiable information that a reasonable person would consider material in the choice of a physician,” however, a doctor member cannot communicate information that is false, misleading or deceptive by the inclusion or omission of any information, contain a testimonial or any comparative or superlative statements, or contains any reference to a specific drug, appliance or equipment.

According to the article, the two latter reasons were at the crux of the complaints. “Physicians have been found to have engaged in professional misconduct for breach of these rules," says Rosen, so ignoring rules may be perilous – even if others seem not to be in compliance.

“The college has a duty to review every complaint, although there is a process by which complaints that are “frivolous, vexatious or an abuse of process” may be dismissed. While the panel reviewing a complaint  may choose to take no action on the basis that the complainant is himself guilty of the same conduct  or because the panel determines that complaints are being made in the name of competition, the panel may well elect to take action against the doctor alleged to have engaged in misconduct, notwithstanding these circumstances,” says Rosen.

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