Health Professionals Entitled to Adequate Opportunity to Respond to Complaints

A health care professional must be given an adequate opportunity to respond to complaints made regarding their professional care of others, and the denial of such an opportunity could result in the disposition of the complaint being overturned. In this matter, the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario failed to give a physician the opportunity to respond to reply comments by the complainant, rendering the investigation inadequate.

Background

A 76 year old woman died from a ruptured appendix. Her husband complained to the College regarding the care provided by an internist who had examined the woman and diagnosed her with viral gastroenteritis and not appendicitis. The internist responded to the complaint and the complainant provided the ICRC with further comments in reply. The internist did not respond to these comments, and the ICRC considered the submissions and the patient’s medical record.

The ICRC expressed concerns with the fact that the internist did not dictate her consultation report until four days after her examination of the patient, by which time the patient had died. In her response to the complaint, the internist advised that she dictated her report from a handwritten clinic note, but the ICRC found that the note was not in the investigative record. The ICRC observed that the timing of the note’s dictation led the ICRC to question whether the internist “embellished her reporting in light of the tragic outcome”.

The internist was ordered to attend at the College to be cautioned in person with respect to her failure to document important history and physical examination features; and failure to adequately diagnose, among other issues. The internist requested that the Health Professions Appeal and Review Board (the “Board”) review the ICRC’s decision.

The Review

The Board agreed with the internist and found the ICRC’s investigation to be inadequate and its decision to be unreasonable, for several reasons:

First, while the ICRC stated that it could not find the handwritten clinic note, it was actually contained in the record. The Board noted that it was “impossible to tell how much this error coloured the Committee’s analysis and conclusion”. For this reason, the Board found that the ICRC’s decision was unreasonable.

Second, the ICRC did not appear to provide the internist with the husband’s reply comments on the internist’s response to the complaint. The internist submitted that she never received them. A College representative admitted that the comments were sent to the hospital, instead of directly to the internist, in error.

The Board was troubled by the fact that the ICRC relied on the husband’s reply comments without giving the internist a chance to respond to them. The Board noted that, while an adequate investigation does not need to be exhaustive, the ICRC must seek to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint and must comply with the applicable minimum standards of procedural fairness. These standards include providing notice to a member that a complaint is being investigated, providing the member with a clear understanding of the substance of the complaint, and providing the member with an opportunity to respond to the complaint.

The Board found that procedural fairness required that the internist be given the opportunity to present her case “fully and fairly”. It was a breach of procedural fairness not to provide the internist with the reply comments and allow her opportunity to respond to them. This breach of procedural fairness led to the conclusion that the investigation was inadequate.

The Board returned the decision to the ICRC and required it to conduct a further investigation and required that the internist be provided with the husband’s comments and allowed an opportunity to respond. The ICRC was also required to take the handwritten note into consideration when it reconsidered the matter