Member of the 1000 Post Club cjs Posted March 29, 2011 Member of the 1000 Post Club Report Share Posted March 29, 2011 I have an appeal with OHIP. Ontario Health Insurance Plan and was googling stuff and stumbled across this. If anybody on this forum is a member of this woman's family or a friend I hope you aren't offended. I think this woman is a hero. She must be very proud of her daughter. And give her a big hug for me. Jill File # 08-CRV-0447 HEALTH PROFESSIONS APPEAL AND REVIEW BOARD PRESENT: Stephen Kovanchak, Designated Board Member, Presiding Christine Moss, Vice-Chair Norma Grant, Board Member The 6th day of July 2010 at Toronto, Ontario IN THE MATTER OF A COMPLAINT REVIEW UNDER SECTION 29(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, Statutes of Ontario, 1991, c.18, as amended B E T W E E N: K.O. Applicant and E.G.D., MD AND H. S. S., MD Respondents Appearances: The Applicant: K.O. For the Applicant: S.O. (Applicant?s sister) Maria Damiano, Counsel The Respondents: E.G.D., M.D. H.S.S., M.D. For the Respondents: Ted Kalnins, Counsel For the College of Physicians and Surgeons of Ontario: Lindsay Lorkin (by teleconference) DECISION AND REASONS I. DECISION 1. It is the decision of the Health Professions Appeal and Review Board to confirm the decision of the Complains Committee1 to issue counsels to Drs. E.G.D. and H.S.S. to 1. Since June 4, 2009, the Complaints Committee has been re-formed into the Inquiries, Complaints and Reports Committee. 2011 CanLII 14749 (ON H.P.A.R.B.) 2 ensure that they thoroughly document physical examinations, patient history, and differential diagnoses pertaining to post-operative problems. 2. This decision arises from a request made by K.O. (the Applicant) and her sister, S.O., to the Health Professions Appeal and Review Board (the Board) to review a decision of the Complaints Committee (the Committee) of the College of Physicians and Surgeons of Ontario (the College). The decision concerned a complaint made by the Applicant regarding the care provided by Dr. E.G.D. and Dr. H.S.S. (the Respondents) to the Applicant?s mother, Mrs. D.O. (the patient). The Committee investigated the Complaint and decided to counsel both Respondents to ensure that they thoroughly document physical examinations, patient history, and differential diagnoses pertaining to post-operative problems. II. BACKGROUND 3. The patient had previously undergone four transphenoidal resections of a pituitary tumour and on September 6, 2007, underwent a fifth resection at the Trillium Health Centre in Mississauga, Ontario. She was sixty-four years of age at that time. 4. The Respondent Dr. S. performed the operation and was assisted by the Respondent Dr. D.. 5. The Applicant describes her mother as having deteriorated by September 8, being barely responsive, and exhibiting low energy levels. Blood work was performed indicating a very low cortisone level and Dr. S. ordered intravenous solucortef, which normalized the cortisone level quite quickly. 6. The patient was discharged home September 13 and the Applicant stated that her mother was still feeling unwell, her headaches continued and her condition generally worsened. The patient was admitted to Hamilton General Hospital less than forty-eight hours after having been discharged from the Trillium Health Centre. The patient was then diagnosed 2011 CanLII 14749 (ON H.P.A.R.B.) 3 with bacterial meningitis and was treated for same, but was left with a 40% hearing loss and a cognitive deficit. The Complaint 7. By letter, dated September 7, 2007, the Applicant filed a complaint with the College in which she alleged that the Respondents failed to provide adequate care to her mother and they: ? ignored the patient?s elevated temperature, headaches, and changes in her mental and functional status; ? failed to perform a lumbar puncture and did not consider, investigate, or rule out a possible differential diagnosis of meningitis; ? failed to properly assess the patient?s condition prior to discharge and discharged her in an unstable state on September 13; and ? failed to return calls to the Hamilton General Hospital on September 15. The Committee?s Investigation and Decision 8. In the course of its investigation, the Committee reviewed the following information and documents: ? the Applicant?s letter of complaint dated September 7, 2007; ? the Respondent Dr. S.?s letter of response dated November 21, 2007; ? the Respondent Dr. D.?s letter of response dated December 3, 2007; ? the Applicant?s further comments dated January 17, 2008; ? the medical records from the Trillium Health Centre, Mississauga; and ? the independent opinion of Dr. F. Gentili dated August 19, 2008. 2011 CanLII 14749 (ON H.P.A.R.B.) 4 9. The Committee investigated the Complaint and requested an independent review of this matter by Dr. F. Gentili who has the same Specialty Certification in Neurosurgery as the Respondents. 10. The Committee reviewed the Applicant?s complaint with specific reference to information obtained in the investigation. 11. The Committee relied upon the opinion provided by Dr. Gentili and took no action with respect to the specific complaints of the Appellant, but did express concern respecting the lack of detail in the charting and documentation. The Committee counseled both Respondents to ensure that they thoroughly documented physical examinations, patient history, and differential diagnoses pertaining to post-operative problems. III. REQUEST FOR REVIEW 12. Dissatisfied with the decision of the Committee, in a letter dated December 19, 2008, the Applicant and her sister requested that the Board review the Committee?s decision. IV. POWERS OF THE BOARD 13. After conducting a review of a decision of the Committee, the Board may do one or more of the following: a) confirm all or part of the Committee?s decision; make recommendations to the Committee; c) require the Committee to exercise any of its powers other than to request a Registrar?s investigation. 14. The Board cannot recommend or require the Committee to do things outside its jurisdiction, such as make a finding of misconduct or incompetence against the member, or refer allegations to a discipline hearing that would not, if proved, constitute either professional misconduct or incompetence. 2011 CanLII 14749 (ON H.P.A.R.B.) 5 V. ANALYSIS AND REASONS 15. Pursuant to section 33(1) of the Health Professions Procedural Code (the Code), being Schedule 2 to the Regulated Health Professions Act, 1991, the mandate of the Board in a complaint review is to consider either the adequacy of the Committee?s investigation, the reasonableness of its decision, or both. 16. The Board reviewed all of the material considered by the Committee. At the Review, Counsel for the Applicant and Counsel for the Respondents made oral submissions that were of assistance to the Board in its deliberations. Adequacy of the Investigation Applicant?s Submissions 17. Counsel for the Applicant took issue with the adequacy of the Committee?s investigation. She submitted that the investigation, as conducted by the Committee, did not go far enough. 18. Essentially, the Applicant?s Counsel argued that the Respondents did not investigate the Applicant?s complaints and did not consider a differential diagnosis of meningitis. 19. The Applicant?s Counsel reviewed the patient?s complaints, as set out by the patient?s family, and indicated that the medical records were scanty and told a different story. Counsel further argued that the records do not always reflect the complaints that were made or what the family saw happening to the patient at the time. 20. Counsel for the Applicant submitted that the Committee should have considered the issue of when the symptoms of meningitis manifested themselves. The Committee should have investigated this issue and sought an opinion from an expert in infectious diseases rather than an opinion from Dr. Gentili whose specialty is neurosurgery. 2011 CanLII 14749 (ON H.P.A.R.B.) 6 21. Finally, Counsel for the Applicant acknowledged that if the Board disagreed with the Applicant?s position that the investigation was inadequate, then it was conceded that the decision of the Committee was reasonable on its face and the reasonableness of the Committee?s decision would not be contested. Respondents? Submissions 22. Counsel for the Respondents argued that the Committee?s investigation properly identified the complaints, which were confirmed by the investigator by letter dated October 4, 2007. He argued further that the Respondents provide detailed reply letters and that the Applicant had an opportunity to clarify her concerns. 23. The Respondents? Counsel took the position that the investigator obtained all relevant information and that the Committee properly obtained an independent expert opinion from Dr. Gentili, a specialist in neurosurgery. Counsel stated that Dr. Gentili summarized the main issue as follows: whether the care provided to the patient, Ms. D. O. by Dr. S. and D. met the standard of practice of the profession. 24. Finally, the Respondents? Counsel noted that Dr. Gentili found no indication in the medical record that the patient showed or had signs or symptoms of meningitis. He argued that it was not necessary for the Committee to have retained an expert in infectious diseases and that a neurosurgeon would have been the most likely and most relevant to consult in this situation. He further argued that adequacy does not require an investigation that is exhaustive of every possibility, but need only be enough to allow the Committee to fulfill its function. 2011 CanLII 14749 (ON H.P.A.R.B.) 7 Analysis 25. An adequate investigation does not need to be exhaustive. Rather, the Committee must seek to obtain the essential information relevant to making an informed decision with respect to the issues complained about. 26. The Board agrees that the issues for investigation were all properly identified, including the main issue raised by the Applicant that the Respondents did not consider, investigate, or rule out a possible differential diagnosis of meningitis. 27. The Committee had before it the Applicant?s letter of complaint, the Respondents? responses, a lengthy reply from the Applicant in response to the replies of the Respondents, the medical records, and an independent expert opinion from Dr. Gentili. 28. Regarding the allegation relating to the Respondents? failure to deal with the patient?s persistent fever after September 8, the Respondents acknowledge that the patient had an elevated temperature on September 8, 11, and 12, but in each case, it returned to normal and was not sustained. The Committee noted that Dr. Gentili commented that there appeared to be some discrepancy in the medical records regarding the dates and frequency of temperature elevation; but nonetheless, he concluded that he did not see in the patient?s record that she had any signs or symptoms of meningitis. The Committee agreed with the opinion of Dr. Gentili. The Board finds the Committee?s reliance on the opinion of the independent expert reasonable in this regard. . 29. Regarding the allegation that the Respondents ignored the patient?s persistent postoperative headaches, the Committee concluded that, based on the record that was before it, they were unable to find that the Respondents should have been aware of persistent headaches. In addition, the Committee concluded that, based upon the medical record before them, they were unable to make a finding that the Respondents dismissed out of hand the patient?s symptoms of lethargy, loss of appetite, and changes in mental and functional status. Further, the Committee agreed with the opinion provided by Dr. Gentili 2011 CanLII 14749 (ON H.P.A.R.B.) 8 that, based upon the medical records, there was no compelling reason to do a lumbar puncture prior to discharging the patient. The Board finds the Committee?s conclusion reasonable. 30. Finally, the Committee found that there was insufficient information to confirm or indicate that the discharge of the patient was premature or that the Respondent, Dr. D., should have performed another assessment on September 13, prior to discharging the patient. Based upon the record available to the Committee, the Board finds the Committee?s conclusion in this regard reasonable. 31. The Committee accepted explanations from both Respondents with respect to why they did not respond to the phone calls from Hamilton General Emergency Department on September 15. It found the explanations to be reasonable and took no action with respect to this allegation. The Board finds the Committee?s disposition of this issue reasonable. 32. The Board notes that in this instance, it was appropriate for the Committee to request an independent expert opinion from Dr. Gentili, whose expertise is in neurosurgery, the same area of specialty as the Respondents. The Board finds support for this view in Branco v. Sunnybrook & Women?s College Health Sciences Centre,  OJ No. 3287, where the Court stated, A Physician is negligent only if the Physician fails to apply that degree of skill, care and learning ordinarily possessed and exercised by other Physicians in similar circumstances?To establish breach of the standard of care, the Plaintiff must lead expert evidence of a Physician practising in the same field as the Defendant Physician attesting to his or her failure in that regard. Although it is acknowledged that this was a medical negligence case, the Board is of the opinion that the same principle should be applied in the matter before it. 33. Despite the lack of detailed charting in the medical records noted by the Committee, the Board finds that the documentation obtained through the Committee?s investigation covered the period complained about, and was sufficient for it to address the concerns that 2011 CanLII 14749 (ON H.P.A.R.B.) 9 the Applicant expressed in her complaint, and to render a decision. Accordingly, the Board finds that the Committee?s investigation was adequate. Reasonableness of the Decision 34. In considering the reasonableness of the Committee?s decision, the question for the Board is not whether it would arrive at the same decision as the Committee, but whether the Committee?s decision can reasonably be supported by the information before it and can withstand probing examination. In doing so, the Board considers whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. 35. As noted, the Applicant has conceded that if the Board found the Committee?s investigation to be adequate, then on the face of it, the decision of the Committee is acknowledged to be reasonable and there was no argument with respect to that issue. 36. The Board notes that the Committee reviewed in detail and reasonably relied on the information in the Record of Investigation (the Record) to support its conclusions regarding the issues raised by the Applicant in her complaint. No information was provided to the Board to support a finding that the Committee did not reasonably assess the issues raised by the Applicant based upon the Record before it. 37. The Board has already noted that the Committee?s choice of Dr. Gentili to provide an independent expert?s opinion was appropriate. Although Dr. Gentili noted a certain lack of detail in charting in the medical records, he found the records to be sufficient for him to provide his opinion that the Respondents met the standard of care required. 38. The Board finds that the Committee addressed the issues, properly relied upon the independent expert?s opinion and based its review and conclusions on the information contained in the Record; its decision is therefore reasonable. 2011 CanLII 14749 (ON H.P.A.R.B.) 10 39. The Board notes that the Committee issues counsels in situations where it has identified an area of practice, which might be improved upon. In this case, the Committee identified the necessity for the Respondents to thoroughly document physical examinations, patient history, and differential diagnoses pertaining to post-operative problems. In the Board?s view, such a disposition both recognizes that the Committee took seriously the Applicant?s concerns and has constructed an educative disposition that services the public interest should a similar situation arise. The Board acknowledges that such a disposition is not insignificant to the Respondents. Taking into account all of the circumstances of this matter, and in particular, the analysis of the Committee of the various concerns of the Applicant, the decision to issue counsels to the Respondents, was, in our view, reasonable. VI. DECISION 40. Pursuant to section 35(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, the Board confirms the decision of the Committee to issue counsels to the Respondents to ensure that they thoroughly document physical examinations, patient history, and differential diagnoses pertaining to post-operative problems. DATED at Toronto this 22nd day of March 2011 ____________________________ Stephen Kovanchak ____________________________ Christine Moss ____________________________ Norma Grant 2011 CanLII 14749 (ON H.P.A.R.B.) Quote Link to comment Share on other sites More sharing options...
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