Health Professions Review Board
Suite 900, 747 Fort Street
Victoria British Columbia
Telephone: 250 953-4956
Toll Free: 1-888-953-4986 (within BC)
Facsimile: 250 953-3195
Mailing Address:
PO 9429 STN PROV GOVT
Victoria BC V8W 9V1
Website: www.hprb.gov.bc.ca
Email: hprbinfo@gov.bc.ca
DECISION NO. 2013-HPA-101(a)
In the matter of an application under section 50.6 of the Health Professions Act,
R.S.B.C. 1996, c. 183, as amended, (the “Act”) for review of a complaint disposition
made by an inquiry committee
BETWEEN:
The Complainant
AND:
The College of Physicians and Surgeons of BC
AND:
A Physician
BEFORE:
Lori McDowell, Panel Chair
DATE:
Conducted by way of written submissions concluding on April 1, 2014
APPEARING:
For the Complainant:
Self-represented
For the College:
Sarah Hellmann, Counsel
For the Registrant:
Abigail C.F. Turner, Counsel
I
COMPLAINANT
COLLEGE
REGISTRANT
REVIEW BOARD
INTRODUCTION
[1]
The Complainant is a retired lawyer who was hurt in a motor vehicle accident and
attended at the Registrant’s office for an independent medical examination (IME). The
Complainant alleged that the Registrant caused him further injuries during the course of
the IME by asking him to walk on his heels and by manipulating his legs. The
Complainant claims he still feels pain. The Complainant submits that he never gave his
consent to be examined by the Registrant and that the resulting examination constituted
an assault and battery. The Inquiry Committee investigated and found no cause to
criticize the actions of the Registrant.
[2]
The Complainant has asked the Review Board to obtain and review the transcript
of the Registrant’s oral testimony given during the trial related to the motor vehicle
accident. The Complainant claims that the transcript will show that the Registrant
admitted he caused him further injury. The Complainant has made submissions
DECISION NO. 2013-HPA-101(a)
Page 2
regarding a civil suit he is pursuing against the Registrant. He also claims that the
Registrant defamed him in his court testimony and he may wish to file criminal charges.
Finally he has asked the Review Board to direct the Registrar of the College to issue a
citation against the Registrant because he alleges the Registrant is a liar and a fraud.
II
JURISDICTION OF THE REVIEW BOARD
[3]
The Act established the Review Board to provide the public with independent,
transparent and objective reviews of dispositions made by British Columbia health
colleges. An individual who is dissatisfied with a disposition of the inquiry committee of
a health college may apply to the Review Board for an impartial review.
[4]
However, the jurisdiction of the Review Board is limited. Our role is not to step
into the shoes of the inquiry committees and rehear the original complaint. We cannot
make a finding that a physician’s treatment constituted assault and battery or that
comments during a subsequent civil trial were defamatory.
[5]
Health College inquiry committees are specialized bodies with representatives
from their own professions and subspecialties as well as members of the public. The
Review Board owes deference to inquiry committees as they examine whether their
members conformed to their standards of conduct and competence. Our governing
legislation specifies that our review is a review on the Record that was before the
inquiry committee. Based on that Record the Review Board must consider only whether
the investigation of the relevant inquiry committee into the complaint was adequate
and/or whether the disposition was reasonable.
[6]
It is not within our mandate to assist complainants to pursue either criminal or
civil actions against registrants. In fact Rule 20 of the Rules of Practice and Procedure
for Reviews under the Act (the “Rules”) states that any documents or information
contained in the Record before the Review Board are confidential and cannot be used
by any party for any purpose other than for the review. We are not a fact-finding body to
help parties conduct research into potential future claims. Our role is confined to an
examination of the adequacy of the inquiry committee investigation into a complaint and
the reasonableness of the resulting disposition.
[7]
Once the Review Board has looked at the adequacy of the investigation and the
reasonableness of the decision we have the power to do the following:
(a) confirm the disposition,
(b) direct the inquiry committee to make a disposition that is within its jurisdiction,
or
(c) send the matter back to the inquiry committee for reconsideration with
directions.
[8]
Although it is conceivable that we could direct an inquiry committee to make a
disposition leading to a citation against a registrant this is only the case where we have
DECISION NO. 2013-HPA-101(a)
Page 3
first determined that the investigation was inadequate and/or the disposition was
unreasonable.
III
REQUEST TO COMPEL PRODUCTION OF COURT TRANSCRIPT
[9]
In his final reply dated March 25, 2014, the Complainant asked the Review Board
to compel the Registrant to produce the court transcript of the earlier civil trial. Rules
33(1)(a), 44(4)(a) and 53 and section 34(3) of the Administrative Tribunals Act (the
“ATA”) give the Review Board the power to compel production and/or disclosure of
various documents. However, this power must be tempered by practical considerations
and our overriding duty of fairness to the parties. In arriving at my decision about this
request I have considered the following criteria:
(a) Is the document relevant? That is, did the inquiry committee require the
document to make a reasonable disposition?
(b) Is the document already available to the Complainant?
(c) Is there any evidence that the Complainant is unable to access the
document?
(d) Would it be unfair to require the Registrant to produce the document?
[10] In the final reply the Complainant provided handwritten notes that I believe were
from his own review of the transcript to support his submission that the Registrant
admitted he had injured him. Unfortunately, I can see no such admission in these
several pages of notes. I include a representational sample of the notes here:
PAGE 34, LINE 2:
BEFORE YOU EXAMINED ME, DID I EXHIBIT ANY SIGNS OF HAVING SCIATICA IN
THE LEFT HIP WITH PAIN RADIATING DOWN THE OUTER ASPECT OF THE LEFT
LEG ALL THE WAY DOWN INTO THE TOES…
LINE 6: NO HE DID NOT
LINE 7: DIDN’T … NO
LINE 8: HE HAD … NO REPORT OF THAT…
[11] The Registrant acknowledges that the Complainant had some pain in his legs
and notes tight hamstring muscles but nothing more. The notes are primarily concerned
with the Complainant establishing that he had no sciatica before the IME. He seems to
believe that if he developed sciatica after the IME it must have been caused by the
Registrant. But contrary to the Complainant’s submissions there is no evidence that the
Registrant admits to injuring him in these notes. Certainly there is no smoking gun that
would compel the inquiry committee to refuse to accept the Registrant’s response and
medical report explaining his examination and findings. Indeed, I am hard pressed to
find that the document is relevant based on the Complainant’s summary of the
DECISION NO. 2013-HPA-101(a)
Page 4
evidence. It is not a document that had to be before the inquiry committee to allow it to
make a sound disposition.
[12] Secondly, the court transcript is not a document that only one party is entitled to
possess. The Complainant has the ability to obtain the transcript. Counsel for the
Registrant has twice advised the Complainant how to obtain a copy of the transcript.
The Complainant responds that he cannot afford to purchase a transcript but has
provided no evidence in support of this submission; and in any event it is doubtful that
such evidence would be relevant to what I have to decide.
[13] Moreover, in his letter to the College of February 19, 2013 he advises the
College that it is possible to listen to the audio of the trial at the “BCSC”, presumably the
Supreme Court Registry. As noted the Complainant has in fact provided several pages
of handwritten notes of the Registrant’s testimony.
[14] I do not believe it is appropriate to order the Registrant to produce the court
transcript at his own cost when the Complainant could secure his own copy or provide
his own handwritten notes of the testimony as he has done.
[15] The Registrant should not have to bear the cost of production of a transcript in
this case. He has stated that he does not have a copy of the transcript in his
possession. The Complainant has not provided any evidence that he does. Neither has
the Complainant submitted any details about his inability to secure the transcript himself
other than simply to state that he is indigent. Rather he continues to berate the
Registrant for not providing the evidence for him. He submits that:
(The Registrant and his counsel) have concealed all evidence, which they have in their
possession. It is alleged that they have committed the fraudulent concealment of
evidence contrary to section 341 of the Criminal Code of Canada. (Reply of
Complainant, dated March 25, 2014)
[16] Finally, the Complainant was able to provide his own hand-written notes of the
oral testimony. Unfortunately these did not support his argument that the Registrant
caused him injury.
[17] The submissions do not support an order to produce a questionably relevant
document that is either within his ability to obtain independently or to provide through
alternative means, such as his own notes.
[18]
I decline to order the Registrant to produce the transcript.
IV
ISSUES
[19] The main issues in this review are whether the investigation into the complaint
was adequate and whether the disposition by the inquiry committee was reasonable.
The Review Board has no jurisdiction to conduct its own investigation into potential
criminal charges or civil claims or to make any findings about assault and battery.
DECISION NO. 2013-HPA-101(a)
V
Page 5
ADEQUACY OF THE INVESTIGATION
[20] The Act uses the word “adequate” when describing the standard for an
investigation. A complainant is not entitled to a perfect investigation; rather the inquiry
committee must take reasonable steps to obtain key information from relevant sources.
In this complaint the College asked the Registrant for his explanation of the IME he
performed. The Registrant responded fully to the request outlining his process and the
steps he took to arrive at his diagnosis and findings. He also submitted the IME report
and the Complainant’s medical records.
[21] Of particular note is the Registrant’s explanation of his role to the Complainant.
He submits that he informed the Complainant that he had been retained by the
defendant’s counsel to conduct an independent examination. He was not acting as the
Complainant’s physician nor would he be treating the Complainant on an ongoing basis.
The Complainant was under no obligation, based on the Record, to submit to the
examination or to attend at the Registrant’s office to undergo the IME. I am hardpressed to understand the Complainant’s allegations of a lack of consent to the
examination.
[22] The Registrant’s IME report reviews the Complainant’s extensive medical history
in detail. His injuries and other illnesses which occurred prior to the motor vehicle
accident are examined. Contrary to the Complainant’s submissions the Registrant
reviewed several other x-rays, scans and medical examination clinical notes, diagnoses
and prognoses from other physicians.
[23] The Complainant argued forcefully that the Registrant had committed a fraud on
the medical system by restricting his practice to the performance of IMEs. The
Complainant seemed to believe that this meant the Registrant was no longer a
specialist or somehow not entitled to practice medicine. There is no evidence to support
this contention. The Registrant discontinued his surgical practice at age 65 in 2003. He
continued with follow-up consultation of his surgical patients until 2008. He then
restricted his practice to conducting orthopedic IMEs until retiring in 2011 at the age of
73. The College confirmed to the Complainant that there were no disciplinary actions
recorded against him.
[24] There is no evidence of fraud or any underhanded activity regarding these career
choices. The fact that the Complainant continued to accuse the Registrant of
perpetrating a fraud based on his transition from active to retired status with no proof
was most inappropriate.
[25] The Complainant submits that the transcript proves that the Registrant knew he
had injured him. The notes the Complainant made of the Registrant’s oral testimony do
not support this claim. Nor do they lead me to the conclusion that the inquiry committee
should have pursued this line of investigation more vigorously.
[26] The inquiry committee is not required to pursue every line of investigation. If
there is no indication that a particular line of investigation will bear fruit the inquiry
DECISION NO. 2013-HPA-101(a)
Page 6
committee’s investigation cannot be found wanting because it did not continue to follow
that lead.
[27]
In an earlier decision the Review Board stated:
The Complainant is not entitled to a perfect investigation. The Complainant is not entitled
to an exhaustive investigation. The Complainant is entitled to an adequate investigation.
If reasonable steps have been taken by the Inquiry Committee to obtain information that
would have affected its decision this will suffice. (Review Board Decision No. 2009HPA-0034(a) paragraph [59])
[28] In this case, the inquiry committee availed itself of sufficient relevant evidence to
make an informed decision. The inquiry committee looked at all the submissions from
the Complainant, the response and the IME report from the Registrant and the medical
charts. In my opinion, the inquiry committee conducted an adequate investigation.
VI
REASONABLENESS OF THE DISPOSITION
[29] The Registrant was retained by counsel for the defendant in the action in which
the Complainant was the plaintiff. The Registrant was not the Complainant’s doctor and
there was no ongoing relationship between them. There was a single meeting between
the parties. The Registrant examined the Complainant and prepared his IME report for
his client.
[30] The test for the Review Board is whether the disposition is reasonable. An earlier
decision has interpreted this as follows:
While the Review Board’s application of the test will necessarily reflect its expertise as a
specialized administrative tribunal rather than a court, the Review Board’s focus is
nonetheless not to step into the shoes of the Inquiry Committee, but rather to determine
whether the Inquiry Committee’s disposition falls within the range of acceptable and
rational solutions, and is viewed in the context of the whole record, sufficiently justified,
transparent and intelligible to be sustained. (Review Board Decision No. 2009-HPA0001(a)-0004(a) at paragraph [92])
[31] There may be more than one possible outcome to a complaint review and the
Review Board may prefer a different decision, however if the disposition is reasonable it
must stand. In other words, when the inquiry committee disposition is within the range of
acceptable and rational solutions and is justifiable, transparent and intelligible I have no
jurisdiction to interfere with it.
[32] In this case, the investigation of the inquiry committee did not support the
allegations of the Complainant. The Registrant was able to explain his practice and
diagnosis. While I have no doubt that the Complainant does have pain in his legs the
Registrant’s diagnosis of spinal degeneration or arthritis and residual pain from his other
motor vehicle accidents could account for this. It was reasonable for the inquiry
committee to find no criticism of the clinical conduct of the Registrant.
DECISION NO. 2013-HPA-101(a)
Page 7
[33] The disposition of the inquiry committee fell within the range of acceptable and
rational solutions. It can be justified based on the investigation; it is transparent and
sufficiently intelligible to be sustained.
VII
CONCLUSION
[34] I find that the investigation was adequate and the disposition was reasonable. I
confirm the decision of the inquiry committee.
[35] In making this decision I have considered all of the submissions before me
regardless of whether I specifically referred to them.
“Lori McDowell”
Lori McDowell, Panel Chair
Health Professions Review Board
May 15, 2014