The Saskatchewan Court of Queen’s Bench heard two appeals under section 41 of the Chiropractic Act, S.S. 1994, c.C-10 from a decision of the Discipline Committee finding the appellant chiropractors guilty of professional misconduct for following a pattern of practice of ordering the preparation of plain film radiographs by the use of X-rays when it was not clinically necessary or appropriate to do so. One of the appellants was also found guilty of following a pattern of practice of ordering the preparation of plain film radiographs on an expectation of financial reward to accrue to him as a result of his ownership in an X-ray medical imaging business. The court ultimately quashed both findings of guilt based on this “pattern of practice”.

Administrative law – Chiropractors – Disciplinary proceedings – Billing matters – Pattern of practice – Professional misconduct or conduct unbecoming – Judicial review – Administrative decisions – Standard of review of appellate court

Thompson v. Chiropractors’ Assn. of Saskatchewan, [2003] S.J. No. 186, Saskatchewan Court of Queen’s Bench, March 21, 2003, Rothery J.

The complaints arose as a result of Saskatchewan Health observing unusual patterns in chiropractors’ billings. The Investigation Committee asked Saskatchewan Health to generate a list of 25 patient files at random from each of the four appellants. The appellants were then interviewed on these 25 files and produced their corresponding office charts.

For each chiropractor, the Discipline Committee admitted all 25 charts as evidence, even though expert evidence was called by the Investigation Committee on only fourteen specific patient charts. The Discipline Committee found that the appellants had ordered full spine x-rays when it was neither necessary nor appropriate to do so on each of the fourteen specific patient charts. On the random sampling of the 25 patient charts placed in evidence, the Discipline Committee found that the “pattern of practice” was established, meaning a general finding of guilt rather than one restricted to the proven incidents.

The Court applied the standard of review dictated under section 41 of the Act and stated in the decision of Huerto v. College of Physicians and Surgeons (1994), 124 Sask. R. 33, affirmed (1996), 141 Sask. R. 3 (C.A.). The standard of review was that the appeal court would defer to the trial judge particularly on findings of fact and would disturb them only if such findings were not supported by the evidence or the conclusion reached by the trial judge was so clearly wrong as to make that decision unreasonable.

The appellants submitted that the Discipline Committee has raised the clinical guidelines for chiropractic practice in Canada (referred to as the “Glenerin Guidelines”) to an absolute standard for measuring whether the appellants’ decisions to order full spine X-rays were not justifiable on any reasonable grounds. The court held that the discipline committee had not made the guidelines an absolute standard but had simply referred to the guidelines in its decision. The court stated:

None of this leads one to conclude that the discipline committee treated the Glenerin Guidelines as anything more than that. As stated in Huerto and Mackey, a discipline committee is not trained in decision writing. A critical analysis of its reasons is of no assistance. This ground of appeal fails. (paragraph 12)

The Court found, however, that the ground of appeal regarding the pattern of practice had merit. The appellants argued that the Discipline Committee erred in admitting into evidence the remainder of the 25 patient charts upon which expert evidence was not called. The Court held that a pattern of practice was not proved because evidence was not put before the committee upon which they could find a pattern of practice. The court stated:

While the investigation committee need only prove the case on a balance of probabilities, it must prove the case. It is no answer that the appellants knew about the 25 patient files that were the subject of the investigation and the hearing…It was always incumbent upon the investigation committee to prove a pattern of practice. On that ground of appeal, I find the appellants successful. (paragraph 29)

The Court of Appeal quashed the findings of guilt that were based on a “pattern of practice”, while finding the four appellants guilty of professional misconduct pertaining to the specific patient examples that were proved.

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