Physician appealed decision of College’s disciplinary committee, which concluded the physician engaged in disgraceful, dishonourable, and unprofessional conduct, and reprimanded and revoked the physician’s certification

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Disciplinary proceedings – Investigations – Competence – Professional misconduct / conduct unbecoming – Penalties and suspensions – Judicial review – Appeals – Standard of review – Reasonableness simpliciter – Evidence – Procedural requirements and fairness

Liberman v. College of Physicians and Surgeons of Ontario, [2013] O.J. No. 2717, 2013 ONSC 4066, Ontario Superior Court of Justice, June 13, 2013, I.V.B. Nordheimer, T.P. Herman and A.L. Harvison Young JJ.

The appellant was the anesthesiologist for a surgical procedure where the patient, a thirty-two year old female, died from complications arising from the procedure.

The College investigated. The College concluded the patient was unstable when she was transferred to the recovery room. The College concluded the patient went into distress following the procedure and the appellant and others involved in her care failed to adequately respond. The College found the appellant failed to maintain the standard of the profession, engaged in disgraceful, dishonourable, and unprofessional conduct, and displayed a lack of knowledge, skill, and judgment in his care and treatment of the patient. The appellant did not demonstrate any insight or understanding of his deficiencies. The College concluded a reprimand and revocation of the appellant’s certification was appropriate.

The appellant appealed to the Superior Court of Justice Divisional Court. The appellant argued the College’s decision was unreasonable and he was denied procedural fairness.

The Court held the appellant’s submissions amounted to a request the court retry the case against him. The Court observed that is not its function on appeal. It is only permitted to intervene on questions of fact where it can be demonstrated the decision-maker made a palpable and overriding error or made findings that are clearly wrong, unreasonable, or unsupported by the evidence. The Court held it is not the Court’s role to independently review evidence and decide what conclusions should be drawn from that evidence. As the College undertook that task and for sound reasons reached particular conclusions, those conclusions are reasonable and there is no basis to interfere.

The Court dismissed the appellant’s argument that he was denied procedural fairness because he was not provided adequate notice that a finding of dishonesty might be made against him regarding manipulation of the patient’s chart. The Court reviewed the notice provided to the appellant, including both formal notice and information provided to the appellant that identified the nature of the allegations against him, and concluded the information collectively was sufficient to put the appellant on notice that the College would be asked to consider whether the appellant removed notes from the patient’s chart. The Court also noted the appellant’s failure to raise this issue before the College would normally be fatal to an attempt to raise it on appeal; however, as the appellant had notice, the Court dismissed the argument he was denied procedural fairness on the merits.

On the issue of penalty, the Court observed that penalty is especially within the expertise of a specialized tribunal. The College is well-placed to determine penalties for misconduct. The College’s discretionary decision to reprimand and revoke the appellant’s certification was reasonable in the circumstances.

The Court dismissed the appeal.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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