A gastroenterologist (“Dr. Gopinath”) secured a ruling from the Health Professions Appeal and Review Board (“Appeal Board”) renewing his privileges without condition. The Toronto East General Hospital (the “Hospital”) was unsuccessful on an appeal where it attempted to restore the earlier decision of the Hospital Board denying him privileges unless he signed an undertaking and agreement to participate in the Physician Health Program (“PHP”).

Administrative law – Decisions of administrative tribunals – Hospital Appeal Board – Hearings – Hearing de novo – Physicians and Surgeons – Hospital privileges – Disruptive behaviour – Judicial review – Standard of review – Reasonableness simpliciter – Evidence

Toronto East General Hospital v. Gopinath, [2014], O.J. No. 2248, 2014 ONSC 2731, Ontario Superior Court of Justice Divisional Court, May 12, 2014, EF Then, MR Dambrot and J Mackinnon JJ.

A gastroenterologist (“Dr. Gopinath”) secured a ruling from the Health Professions Appeal and Review Board (“Appeal Board”) renewing his privileges without condition. The Toronto East General Hospital (the “Hospital”) was unsuccessful on an appeal where it attempted to restore the earlier decision of the Hospital board denying him privileges unless he signed an undertaking and agreement to participate in the Physician Health Program (“PHP”).

Dr. Gopinath engaged in a dispute with Hospital management regarding the policy that dedicated anesthetists would be present during endoscopic procedures, and that those anesthetists would be responsible for sedation or anesthesia of patients. Dr. Gopinath felt the endoscopist should discuss sedation with the patient and seek their input, whereas the anesthetists felt this was their area of practice.

In April 2007, Dr. Gopinath applied for his hospital privileges to be renewed. The Hospital’s Medical Advisory Committee (“MAC”) recommended that his appointment not be renewed due to his alleged disruptive behavior in the Endoscopy Unit.

Dr. Gopinath appealed to the Hospital Board, which determined that his privileges would not be renewed, but that he could sign an undertaking and agreement requiring his participation in the PHP and then return to practice. Dr. Gopinath refused to sign that agreement and brought an appeal to the Health Professions Appeal and Review Board, which held a de novo hearing. The Appeal Board held that the problems between Dr. Gopinath and the anesthetists had been “… ameliorated to the point where there is a reasonable working relationship” and that Dr. Gopinath’s privileges should be renewed without condition.

The Hospital brought an appeal under section 43 of the Public Hospitals Act, asking either that the decision of the Hospital Board be restored or that Dr. Gopinath be required to sign the undertaking and agreement as a condition of renewal of privileges.

The standard of review was reasonableness. The findings of the Appeal Board on medical issues and Hospital practice fell within its expertise and were entitled to considerable deference.

The Appeal Board had considered the evidence and found that it would serve no useful purpose to require Dr. Gopinath to engage in the PHP at that juncture. On appeal, the Hospital contended that the Board did not properly consider the evidence of the Hospital CEO or of Nurse Ryce, an Endoscopy Unit nurse. The Hospital argued that the Appeal Board’s decision was unreasonable in failing to consider the interpersonal conflict between Dr. Gopinath and nurses, and between Dr. Gopinath and Hospital administration.

The Court dismissed the appeal, finding that the evidence of the Hospital CEO had been considered, and that, while Dr. Gopinath ought to have complied with reasonable management requests, the Appeal Board did not share the CEO’s concern that problems with administration would persist.

The Court also declined to interfere with the Appeal Board’s decision regarding the relationship between Dr. Gopinath and nurses. The evidence of Nurse Ryce had been considered and although she voiced criticisms of Dr. Gopinath, she acknowledged that her relationship with him was professional, and usually polite and respectful. She was willing to continue to work with him to improve the situation.

There was nothing in the nurses’ evidence that suggested that Dr. Gopinath was “… ungovernable or that his conduct might affect patient safety.”

The Appeal Board determined that although physicians have a responsibility to acknowledge and respect the authority of the Hospital administration to deal with issues affecting physicians and, therefore, their patients, the decision they reached was justified and fell within a range of possible outcomes that were defensible in terms of facts and law.

The appeal was dismissed with almost full costs to the respondent.

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