Court dismisses appeal of physician seeking to overturn decision to not renew privileges

Administrative law – Decisions reviewed – Health Professions Appeal and Review Board – Judicial review – Fresh evidence – Stay of proceedings – Procedural requirements and fairness – Standard of review – Correctness – Physicians and surgeons – Hospital privileges – Professional misconduct or conduct unbecoming

Talwar v. Grand River Hospital, [2022] O.J. No. 2956, 2022 ONSC 3822, Ontario Superior Court of Justice, June 28, 2022, M.R. Dambrot, E.M. Stewart and G.W. King JJ.

The applicant appealed a decision from the Health Professions Appeal and Review Board of Ontario (HPARB) which confirmed a decision of the Board of Directors of the respondent. The respondent’s decision declined to renew the applicant’s hospital privileges.

The applicant is a physician specializing in general surgery and cardiothoracic surgery. He was appointed to the medical staff in 1998 and required to reapply for reappointment annually. In 2000, concerns were raised about the applicant’s behaviour. In 2004, a peer review revealed that the applicant had insight into his behaviour and had taken steps to correct his mistakes. After additional concerns were expressed between 2005 and 2008, a review of the applicant’s practice was conducted. In 2009, the applicant’s privileges were renewed on the condition that he undergo counselling and that any further disruptive behaviour would result in the revocation of his privileges.

A review of the applicant’s surgical cases in 2012 and 2014 revealed clinical concerns. Despite the applicant obtaining a supportive expert report, the Medical Advisory Committee proposed a four-month supervisory model. The applicant refused the supervisory model.

In 2016, the Medical Advisory Committee recommended that the applicant’s privileges not be renewed. In 2017, the respondent accepted the recommendation finding that the applicant’s clinical skills or decision-making did not warrant the non-renewal of his hospital privileges; however, his conduct and behaviour, which occurred over a prolonged period of time, demonstrated an inability to interact with his colleagues and hospital administration resulting in the complete erosion of the trust that must exist between a group of physician colleagues.

The applicant appealed the respondent’s decision to the HPARB. In March 2020, the HPARB denied the appeal and confirmed the decision of the respondent not to renew the applicant’s privileges.

The applicant sought to introduce fresh evidence and amend his notice of appeal to include a request for a stay of proceedings. The motions were not brought in a timely manner and the applicant offered no explanation for the delay. The Court dismissed the applicant’s motions on the basis that it would be unfair to the respondent and not in the interest of justice.

The Court found that a physician’s ability to maintain collegial and professional relationships is a key component of patient safety and is a sufficient basis for non-renewal or termination of privileges. The Court observed that it owed deference to the factual findings of the HPARB. After reviewing the factual findings of the HPARB, the Court held that there were no palpable and overriding errors that warrant interference by the Court.

The Court dismissed the appeal and ordered the applicant to pay $20,000, inclusive of all disbursements and taxes, for the costs of the appeal.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

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