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HPARB finds decision to caution unreasonable

Elyse Sunshine
Lonny Rosen

By Elyse Sunshine and Lonny Rosen

The Health Professions Appeal and Review Board (the Board) returned a matter to the Inquiries, Complaints and Reports Committee (the Committee) of the College of Physicians and Surgeons of Ontario (the College) for reconsideration.

The Board found that the Committee’s decision appeared to have been based on a “misapprehension” of the physician’s complaint history.

This decision arose from a complaint filed after a patient died following surgery for bladder cancer. The patient’s wife expressed concerns about the post-surgery care her husband received by an on-call urologist. The day before the patient’s death, the surgeon who performed the surgery saw the patient in the late afternoon/early evening. When the surgeon went off duty, the patient’s care was transferred to the urologist on call. No direct communication occurred between the surgeon and the on-call urologist. The nursing staff called the urologist at his home twice that night: once to clarify the dosage for the patient’s medication and later to advise of the patient’s condition. The urologist ordered a fluid bolus, blood work and x-rays for the patient in the morning. Just under two hours later, the patient suffered cardiac arrest and died.

The Committee

During the Committee’s investigation, the surgeon acknowledged that he could have communicated his level of concern more clearly to the on-call urologist after he last examined the patient. The surgeon also advised that the hospital has now adopted a “Transfer of Care” protocol requiring an attending physician to communicate directly and verbally with an on-call physician when there is a transfer of care.

Ultimately, however, based on the investigation and what the Committee determined was a “significant history of complaints” against the urologist, the Committee decided to issue a caution in person “with respect to [the urologist’s] failure to attend a patient in response to nurse’s (sic) communication of concern regarding a seriously ill patient”.  The urologist asked the Board to review the decision.

The Board

The Board concluded that the Committee’s investigation was adequate but went on to find that its decision to issue a caution was unreasonable.

The Board noted that the Committee’s decision appeared to have been based on a misapprehension of the urologist’s complaint history. The urologist had only one prior complaint pertaining to a breach of the College’s policy on Treating Self and Family Members. Yet the Committee had concluded that the urologist had a “significant history of complaints”. In addition, the Board found that the Committee did not properly assess the relevance of the prior complaint pertaining to treating a person in his familial circle before determining that his complaint history was a factor for warranting the issuance of an oral caution for failing to attend a patient. The matter was returned to the Committee for reconsideration.

Takeaway

Being subject to an in-person caution can carry serious consequences for a health professional, given that the fact and substance of the caution are published on the College’s public register. For that reason, health professionals who are directed to receive an in-person caution should consider whether the decision is reasonable, and apply for a review of the decision where warranted, especially when such a decision is made on a misapprehension of the facts. The Board confirmed that one unrelated complaint is not a “significant history of complaints” warranting significant action.

If you have questions about this case or about complaints in general or other regulatory proceedings, contact us.

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