The Globe and Mail: When physicians behave badly
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February 09, 2009
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REGULATORY BODIES ARE INTRODUCING INITIATIVES TO DEAL WITH DISRESPECTFUL, RUDE AND ABRASIVE DOCTORS

When a patient asked family physician (Dr. X), why he didn't return her telephone call to discuss test results, he said he didn't have time to call everyone, threw his pen on the floor, then asked her to leave. She later received a termination letter, according to a disciplinary decision of the College of Physicians and Surgeons of Ontario.

Other patients who visited the office, found themselves unwelcome recipients of Dr. X's invective: swearing, slurs and sharp words that left one elderly woman frightened, the college said.

When he became the subject of a college investigation, even its registrar with an Italian first name was not spared. In a telephone call, Rocco Gerace was referred to as a "Mafia man," the college said.

The doctor's lawyer, David Cousins, declined comment, saying he could not speak when there is an appeal before Divisional Court. That appeal document, which asks that the decision be set aside, states that Dr. X should have been referred to the college's fitness to practise committee rather than the discipline committee.

Disruptive physician behaviour is seen as a pervasive, long-standing problem, carried out by an estimated 3 to 5 per cent of doctors, Dr. Gerace said. Put another way, that 5 per cent figure translates into more than 3,000 physicians across Canada.

Physician regulatory bodies in Alberta and Ontario have recently developed disruptive-physician initiatives to help guide hospitals and clinics on how to deal with rude, disrespectful and abusive behaviour.

"It's about making sure that the health-care workplace works together so that there's patient safety," said Janet Wright, assistant registrar of the College of Physicians and Surgeons of Alberta. "...We were seeing that this was dealt with very inconsistently."

In the Alberta model, which has been approved by college council, disruptive behaviour should be reviewed soon after it is reported, followed by a risk assessment. If the doctor has been found to be disruptive, recommendations to deal with it include counselling, treatment and possible disciplinary action.

Ontario became the first province in the country to have the initiative last year. It has a staged approach to deal with behaviour from the relatively mild to the particularly egregious, going all the way to cases where is a risk of harming staff or patients.

While there used to be a tolerance for disruptive physician behaviour, that is long gone.

"Truthfully, if there is a truly disruptive behaviour in a hospital, notwithstanding how short [of doctors] they are, hospitals do not want this," Dr. Gerace said. "...They would much rather have nobody than have somebody like this."

Causes of disruptive physician behaviour include stress, psychiatric disorders, substance abuse and exaggerated character traits that physicians typically possess, such as perfectionism, rigidity and compulsiveness, according to the Alberta disruptive behaviour draft document. Those on the receiving end of the doctor tirade include nurses, medical residents and patients.

"It should not be happening, but it is happening," said Rachel Bard, chief executive officer of the Canadian Nurses Association, adding that there is a perspective it is getting worse.

Roona Sinha, president of the Canadian Association of Interns and Residents, said disruptive behaviour can come in the form of intermittent off-colour remarks that may have been meant as a joke.

But it is not only a physician problem, she says: Her group did a survey, published in October 2008, showing medical residents experienced even more disruptive behaviour from nurses in the form of inappropriate verbal comments than they did from physicians, when they were surveyed in the 2004-2005 academic year.

"I don't think anyone can go through the training system yet without observing it," Dr. Sinha said in a telephone interview from Vancouver. "If you haven't experienced it yourself, you definitely have seen it happen."

The roots of disruptive doctor behaviour can be traced back to medical school, suggested a New England Journal of Medicine study in 2005. It found disciplinary action among practising physicians by U.S. medical boards was strongly associated with unprofessional behaviour in medical school, such as irresponsibility.

And in a separate 2007 study, Canadian doctors who scored poorly in the communication-skills examination they take before licensure were more likely to be the subject of complaints by regulatory bodies.

"Our suggestion was that they could deal with this far earlier in the process than dealing with it once they are into practice," said Professor Robyn Tamblyn, scientific director of the Clinical and Health Informatics Research group at McGill University.

At issue is how best to deal with abusive behaviour.

Dr. X, a University of Toronto medical school graduate in his mid-40s, went through the disciplinary process. In August 2006, Dr. X was fined, suspended and reprimanded - punishment that has not been enforced because it is currently under appeal, expected to be heard in spring. The regulatory body also imposed terms, conditions and limitations on his licence, including counselling and treatment.

...While not speaking specifically to Dr. X's case, his lawyer, Mr. Cousins, said when patients do complain about disruptive physician behaviour, they recognize the doctor needs help.

"It is clear to me, even patients recognize, in many cases that their doctor needs help, " Mr. Cousins said. "...They feel they are being well treated from a medical standpoint."

© Copyright 2009 The Globe and Mail. All rights reserved.


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MedicalPost.com: Court quashes college restrictions on Toronto GP
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May 04, 2004 Volume 40 Issue 18
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DOCTORS AND THE LAW

Court quashes college restrictions on Toronto GP

The process to assess physician incompetence must be fair and comply with the rules of natural justice, an Ontario court said in a recent ruling favouring Dr. Donald Chong

By Michael Fitz-James

While medical governing bodies can force members to undergo tests of their competence to practice, the process for doing so must be scrupulously fair. A recent case will be instructive for all doctors since a court finds the College of Physician and Surgeons of Ontario defied provincial law, flouted its own testing rules, then breached the rules of natural justice by failing to disclose test materials to a doctor who had allegedly failed a competence evaluation.

Dr. Donald Ton Chong was a Toronto general practitioner who'd practised without incident for 30 years until 1999, when his practice was chosen to undergo a random audit and peer review by the CPSO Quality Assurance Committee (QAC). Dr. Chong was 65 and had closed his practice to new patients 10 years earlier. Most of his patients were first-generation Asians who required geriatric care.

The CPSO created its QAC program in 1990 and chose practitioners at random to assess by peer review. The results of any assessment are contained in a standard report.

If the assessor reports further action is needed, s. 33 of Ontario's Medicine Act says the report must be reviewed by an independently constituted review panel, which makes recommendations to the QAC.

That review panel may recommend the physician undergo a Physician Review Program (PREP), a one-day evaluation conducted under the CPSO's auspices at McMaster University in Hamilton. The PREP assessment is supposed to be neutral, blind and objective.

In September 1999, Dr. Henry Wu, the CPSO's independent physician assessor, came to Dr. Chong's office and reviewed 32 random patient files. In his report, Dr. Wu raised serious concerns about Dr. Chong's record-keeping and documented patient care concerns on four files.

Dr. Chong never disputed his records were a mess, but said he was uncomfortable with the whole peer assessment process. When Dr. Wu's report was filed, Dr. Chong took his criticisms hard, and wrote a lengthy and emotional response to the report. (He hadn't retained a lawyer at that time.)

In April 2000, the QAC met with Dr. Chong and told him further action was contemplated, including a PREP assessment. But the QAC referred the matter to the review panel (which is made up of two members of the public and three physicians) and Dr. Chong made representations, questioning the accuracy of Dr. Wu's report.

Dr. Chong acknowledged problems with record-keeping, but denied any deficiencies in patient care. The review panel issued its report on Oct. 18, 2000. It recommended Dr. Chong take a series of steps, primarily to "immediately and dramatically improve his record-keeping." The panel did not recommend Dr. Chong attend a PREP evaluation, but it did say he should be peer re-assessed in his practice in six months.

That re-assessment would determine whether Dr. Chong needed a PREP evaluation at McMaster. (Meanwhile, Dr. Chong reported Dr. Wu to the CPSO Disciplinary Committee in October 2000, but his complaint was dismissed as frivolous and vexatious.)

Over the next year, Dr. Chong rewrote all his illegible files and introduced a new filing system, so when Dr. Howard Rudner conducted the second peer assessment in November 2001, things were much improved, to the extent that Dr. Rudner wrote in his report: "I congratulated him on the improvements noted in his record-keeping."

But Dr. Rudner reported: "Although Dr. Chong's management of patients suffering from chronic conditions was generally acceptable, there were some specific areas that required inquiry and discussion. Moreover, his management of some acute conditions also needed further inquiry."

On Dec. 11, 2001, the QAC looked at Dr. Rudner's report and determined a PREP evaluation was warranted. The committee wrote Dr. Chong advising him of this on Jan. 10, 2002. The letter invited Dr. Chong to attend a QAC meeting to make submissions-but it was clear the decision to send Dr. Chong to a PREP evaluation had already been made.

Here, the QAC did not follow Medicine Act s. 33, which requires a review panel be constituted when further action is required.

The CPSO took the position that the decision to refer Dr. Chong to a PREP assessment had been deferred by that earlier review panel in October 2000, so a second panel referral was not needed.

Dr. Chong attended a QAC meeting on April 30, 2002, but was advised he was required to take the PREP assessment at McMaster. He was later sent a PREP information guide which said the PREP program co-ordinator would prepare a summary sheet containing only the physician's name, address, CPSO number and phone numbers. And in a document titled "Physician Review Program Physician Orientation Information," the CPSO said: "Each physician is assessed by one of his/her peers, who do not know the reason for the referral."

The document goes on: "PREP wants you to know that: The physician assessor is not advised whether you are a referred physician or a criterion physician. We request you do not advise the assessor of the reason(s) for the Assessment."

However, buried in the information guide's frequently asked questions section was a statement that the PREP office would be informed of the "reason for the referral."

Even so, Dr. Chong thought PREP officials would never be told the reason for his referral. But when Dr. Chong underwent his PREP evaluation, it turned out the CPSO had sent PREP officials a copy of the October 2000 review panel report to the QAC, as well as copies of other correspondence with Dr. Chong. And while the CPSO told PREP officials about Dr. Chong's "shortcomings," it did not provide any of his lengthy detailed responses to the first assessor's report.

The PREP assessment is a day-long "assessment of the individual's clinical practice performance capabilities." There's a written test, plus actor-patients simulating various conditions present themselves to evaluate a doctor's clinical skills.

Things went badly for Dr. Chong. The PREP assessment report, released on Aug. 1, 2002, found Dr. Chong scored 43% on the written test.

There were supposedly problems with his ability to conduct a differential diagnosis. His sample charts for his practice were reviewed and criticized. Overall, Dr. Chong scored at "Level 5"-"Critical Deficiency, Immediate Risk to Patient Care."

At an Oct. 15, 2002 meeting between the QAC and Dr. Chong, he was told conditions would be placed on his licence to practise. The matter was then referred to a review panel under s. 33 of the Medicine Act.

In January 2003 that panel recommended Dr. Chong's licence be restricted to surgical assisting only. The panel based its decision on the PREP results, plus Dr. Chong's unwillingness to remediate his clinical knowledge (plus his refusal to undergo a cognitive-neuropsychological assessment).

As of April 2003, Dr. Chong was told his licence would be restricted to surgical assisting for a six-month period. He took the CPSO to Ontario's Divisional Court to have that decision quashed.

A unanimous bench comprising Ontario Superior Court Justices Jean L. MacFarland, M. Paul Forestell and Janet M. Wilson found in Dr. Chong's favour in a judgment released March 16.

As a preliminary matter, the college challenged Dr. Chong's right even to take the matter to court. By the time his case was heard in February 2004, the six-month condition on his licence had expired, so the matter was moot, argued the CPSO's lawyer, Louis Sokolov of Toronto's Sack Goldblatt Mitchell.

But the court quickly rejected that position. Although the six-month limitation had expired in October 2003, there was still a "live controversy" between the parties.

The CPSO contemplated further proceedings against Dr. Chong based on the PREP results. Moreover, "Dr. Chong has been a respected professional member of his community for over 30 years" and should be given the opportunity to clear his reputation, the court noted.

While the CPSO must protect the public, the process to assess physician incompetence must be procedurally fair and comply with the rules of natural justice-and all the more so when Dr. Chong's livelihood was at stake, the court said.

The quasi-disciplinary proceedings against Dr. Chong weren't fair because: The CPSO failed to refer consideration of Dr. Rudner's reassessment report to a review panel, as required by the Medicine Act.

The court found that after that second peer review with Dr. Rudner, if the QAC felt further action was necessary, it was obliged by law to refer the matter to a review panel-something that would ensure Dr. Chong's right to be heard by an independent and neutral body. That was the whole point of Medicine Act s. 33.

"Dr. Chong had no real opportunity to make submissions" before the QAC sent him off for PREP evaluation, something the court found odd given Dr. Rudner's finding there was marked improvement in his record-keeping and his patient care was generally acceptable.

Dr. Rudner told Dr. Chong he was surprised his re-assessment triggered a PREP referral-Dr. Wu's first peer assessment report was much more damaging, but it didn't result in a PREP referral.

The CPSO gave the PREP director written documents that tainted the neutrality of the assessment process.

The CPSO never provided Dr. Chong's responses to balance that information and, even more crucial, it gave the information "in circumstances where the physician was informed that PREP would not know the reason for his referral."

The PREP test was supposed to be neutrally and objectively evaluate physician performance, but "in this case selective material was forwarded to the PREP director," said the court.

"Dr. Chong is a general practitioner administering care to older patients, often with chronic conditions. Based upon the material sent by the CPSO to the director of the PREP program, Dr. Chong was administered a test with a special focus upon respiratory and endocrine conditions."

Whether Dr. Chong was right in that he was given a test more appropriate for specialists, the fact PREP officials "failed to follow their own procedures, to ensure a blind independent and neutral evaluation" raised "serious concerns the College tainted the PREP assessment by providing selective information to the PREP director," the court said.

The CPSO was also unfair when it refused to provide Dr. Chong access to the multiple-choice question part of the PREP test, plus "patient" video recordings. Dr. Chong was thus unable to obtain an independent opinion on whether the test was administered fairly and reasonably to assess a general practitioner's skills and knowledge.

Dr. Chong complained that because the PREP officials knew about the peer assessment, they focused their evaluation on respiratory and endocrine conditions, areas for specialists, not general practitioners. That was why, he explained, he'd done so poorly on the tests.

And because Dr. Chong received only 43% for a test he alleged was more appropriate to specialists, not general practitioners, the CPSO was wrong to refuse disclosure of the test material and actor-patient videos. Dr. Chong was entitled to see if the process was a fair evaluation of a GP.

The court rejected the CPSO's argument that disclosure would compromise the integrity of the test in the future: "Conditions and limitations could have been crafted to allow Dr. Chong to challenge the validity of the test results, while respecting the confidentiality concerns of the College."

The court quashed the decision to impose conditions on Dr. Chong's licence, and ordered the CPSO to pay $15,000 in costs.

Toronto lawyer David B. Cousins, who represents Dr. Chong, said the CPSO has sought leave to appeal the ruling to the Court of Appeal. (With unanimous Divisional Court rulings, the higher court must give its OK before an appeal can be heard.)

Cousins expects the appeal court to hear the leave motion sometime this month, and he says Dr. Chong will vigorously oppose an appeal. Cousins said he doubts the CPSO will get permission for an appeal because the justices are not in error.

"In my view, the CPSO will not be able to meet the Court of Appeal's high standard of review, which requires showing a 'palpable and overriding error' where the breaches of the natural justice rules are so clearly demonstrated," he told me.

I could not reach the CPSO's in-house counsel, Lisa Brownstone, for her comments by press time.

© Copyright 2003 The Medical Post. All rights reserved.

NOTE: The CPSO subsequently abandoned its appeal to the Court of Appeal by Notice of Abandonment filed on March 14, 2006.


Law Offices of David B. Cousins | 425 University Avenue, Suite 203, Toronto, Ontario, M5G 1T6
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