Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Billing matters – Records – Penalties – Judicial review – Evidence
Visconti v. College of Physicians and Surgeons of Alberta,  A.J. No. 123, 2012 ABCA 46, Alberta Court of Appeal, February 9, 2012, F.F. Slatter, J.D.B. McDonald and M.B. Bielby JJ.A.
The Appellant (“Dr. Visconti”) appealed the penalty imposed by the Council of the College of Physicians and Surgeons of Alberta (the “College”) following his convictions on 31 counts of professional misconduct. The convictions arose in the context of Dr. Visconti’s treatment of nine patients with respiratory issues between 2002 and 2005 and multiple occasions of failure to properly chart, billing irregularities, and failure to refer patients to a respirologist for x-rays. The Court had earlier quashed nine other convictions of professional misconduct against Dr. Visconti and had remitted the matter back to the College to determine the appropriate penalty for the remaining 31.
The College imposed a global penalty of 30 days suspension, 25 hours of continuing education, peer reviews and publication of Dr. Visconti’s name and particulars of his convictions.
Dr. Visconti appealed the penalty, seeking to have it reduced such that he would be allowed to serve the suspension on consecutive weekends, that random chart audits be substituted for the peer review and continuing medical education and that his name and convictions not be published. Dr. Visconti took the position that the College acted unreasonably in imposing the penalty by erring in the application of a principle of law, misapprehending evidence or failing to give weight to significant favors, or imposing a penalty disproportionate to the offence committed.
The Court dismissed the appeal and upheld the penalties imposed by the College. The Court noted that the College’s failure to promptly prosecute the charges did not justify a lower penalty, nor was it unreasonable for the College to refer to concerns about quality of care triggered by the convictions. Further, the College reduced the original penalty to reflect the fact that it was imposed for the less serious offenses only.
That the College did not specifically mention letters of reference from Dr. Visconti’s patients, none of which were from a complainant, did not indicate that the College misapprehended evidence. It was also improper for the Court to consider whether Dr. Visconti’s overbilling arose out of an honest mistake as to do so would involve re-weighing the evidence.
The Court concluded that, given the factors present in the matter, the College’s decision more than adequately met the test for reasonableness.
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