Kadri v Windsor Regional Hospital: Insights into HPARB’s Jurisdiction and Grounds for Revoking Hospital Privileges
A recent hospital privileges decision from the Health Professions Appeal and Review Board (“HPARB”) provides interesting insight into the scope of HPARB’s jurisdiction in hospital privilege matters under the Public Hospitals Act (the “PHA”) and with respect to grounds justifying the revocation of hospital privileges.
A. Facts
This was a long and complicated hearing, with the HPARB hearing from 48 witnesses as well as a six-person witness panel during a 37-day hearing. There was also several thousand pages worth of documentary evidence admitted by HPARB. The relevant facts are briefly outlined below.
1. Background
Dr. Kadri was a physician specializing in Nephrology. He practiced as a nephrologist in Windsor since 1999. He held hospital privileges at both Windsor Regional Hospital (“WRH”) WRH and Hotel-Dieu Grace Hospital (“HDGH”). Prior to an amalgamation of HDGH and WRH in 2013, HDGH was responsible for renal services in the region, and Dr. Kadri was the Medical Director of HDGH’s renal program.
Much of the dispute between Dr. Kadri and WRH stemmed from a disagreement regarding changes that WRH made to the renal program once it took over renal services for the region in 2017. Accordingly, it will be helpful to understand the circumstances of renal services in Windsor prior to these major changes.
2. Renal Services Prior to WRH Management
Dr. Kadri and two other nephrologists at HDGH had entered into an agreement (the “2009 Agreement”) setting out how the nephrology department would run, including:
OHIP payments for a patient Chronic Dialysis Team Fee (“CDTF”) would be to the patient’s most responsible physician (“MRP”)
CDTF is a payment of $127.20 per week to the physician overseeing the management of a dialysis patient in end stage renal failure
the MRP was defined as the patient who first saw the patient in consultation
New recruits for the department must be supported by the nephrology department’s chief, otherwise the supporting physician must share their MRP patients with the recruited physicians
Dr. Kadri also operated his own community-based chronic kidney disease clinic (“CKD”) clinic. Dr. Kadri opened this clinic after conducting research and determining that a community-based CKD clinic could provide pre-dialysis care just as effectively as the hospital-based multidiscipline chronic kidney disease (“MCKD”) and at a lower cost.
3. WRH’s New Model of Care for Renal Services
In response to an external review and report by the Ontario Renal Network (the “ORN”) identifying deficiencies and recommending improvements in WRH’s renal services, in early 2017 WRH implemented a new model of care for renal services. One of the principles for the new model of care (the “New Model”) was that all patients would be patients of the WRH’s program, while nephrologists would lead the care, patients would not be proprietary to a specific nephrologist’s private practice. The New Model included the following:
Nephrologists’ billings for the CDTF would be shared according to time spent on-call in the dialysis unit (not the physician who performs the first consultation);
WRH would recruit two new nephrologists;
All patients admitted to WRH’s dialysis program must be referred to WRH’s MCKD clinic;
All nephrologists must participate directly in the MCKD clinic;
HPARB noted that while there was little evidence before it regarding the precise financial impact of the New Model on Dr. Kadri, there could be no doubt that it would be considerable. The impact was twofold:
a. Dr. Kadri had initially consulted with the most renal patients, and therefore under the 2009 Agreement would be entitled to a greater portion of the CDTF than the other physicians. Under the New Model, the CDTF would be shared in proportion to time spent on call, and would also be reduced as a result of the two additional nephrologists WRH planned to recruit.
b. Under the New Model, all patient admitted to WRH’s dialysis program were required to be seen at the MCKD clinic, whereas Dr. Kadri was currently caring for and billing OHIP for his patients in his own CKD clinic.
HPARB also accepted that Dr. Kadri had a sincerely held belief that community-based CKD was better for patients than WRH’s MCKD clinic, which also contributed to Dr. Kadri’s opposition to the New Model, and accepted evidence from 25 patients of Dr. Kadri who testified that they:
a. believed that Dr. Kadri is a good doctor;
b. wanted to be cared for by Dr. Kadri;
c. were not pleased to be contacted by WRH regarding their attendance at the MCKD clinic;
d. were not pleased with the New Model; and
e. placed importance on patient autonomy and choice
4. Dr. Kadri’s Resistance to the New Program
HPARB found that Dr. Kadri resisted and disrupted the implementation of the New Model. Dr. Kadri’s resistance/disruption included the following:
a. Dr. Kadri placed notes in patient charts, directing staff to call the patients’ community-based nephrologist’s offices to discuss or book appointments for any concerns or chronic management issues, even after he was specifically told by management to stop placing these notes as they were inconsistent with the New Model.
b. Dr. Kadri continued to “attend” patients directed to the MCKD clinic from his office and provided orders for these patients. Some of the orders he provided were parallel to the orders of the on-call nephrologists, while some contradicted the orders from the on-call nephrologists. HPARB found that these orders were disruptive to the safe operation of the MCKD clinic and caused confusion, stress, and distraction to the renal program team.
c. Dr. Kadri threatened to file a lawsuit against other nephrologists in the department for complying with the New Model instead of the 2009 Agreement.
d. Dr. Kadri refused to refer his patients to the MCKD clinic for pre-dialysis care and instead continued to provide this at his CKD clinic.
e. Dr. Kadri filed complaints with the College of Physicians and Surgeons of Ontario (“CPSO”) against WRH’s Chief of Staff and several physicians in the nephrology department. At the time of the hearing, the CPSO had considered all of the complaints and decided to take no further action with respect to each one.
f. Although Dr. Kadri refused to admit to doing so, HPARB found on a balance of probabilities that Dr. Kadri submitted billings for CDTF to OHIP that, under the New Model, belonged to other nephrologists in the department. As a result, when these nephrologists submitted billing for the same patients to OHIP, the billings were rejected as they had already been claimed by another provider.
As a result of this conduct, the Medical Advisory Committee of WRH decided not to re-appoint Dr. Kadri to the professional staff, to revoke his privileges, and to continue his suspension pending the exhaustion of his rights of appeal.
HPARB accepted evidence from the Chief of Staff that if Dr. Kadri was re-instated, many of the other nephrologists in the department would likely quit, they would have difficulty recruiting new nephrologists, and they would be unable to continue to implement the New Model.
B. Jursidiction of HPARB
Dr. Kadri led evidence purporting to show that the New Model was medically less effective than his preferred community-based model for several reasons, primarily because it handed over the care of patients to on-call nephrologists, instead of allowing the nephrologist who best knew the patient to provide care.
After a mid-term motion considering jurisdiction, HPARB concluded that it did not have the authority or jurisdiction to overrule or modify the New Model or to direct WRH to change the New Model. HPARB was not required to determine whether WRH’s New Model was superior or inferior to the model of care preferred by Dr. Kadri in order to determine whether WRH had acted appropriately in terminating Dr. Kadri’s privileges. HPARB was satisfied that WRH’s decision to implement the New Model was taken with the good faith intention of following the recommendations of the ORN’s external review Report.
C. Revocation of Privileges
HPARB found that WRH’s decision not to reappoint Dr. Kadri to the Professional Staff and to revoke his privileges was warranted considering the provisions of the PHA and the relevant by-laws and policies of the Respondent hospital.
HPARB relied on previous case law recognizing that disruption and conflicts amongst employees can adversely affect the care of patients in a hospital setting. HPARB concluded that WRH’s decision to revoke Dr. Kadri’s privileges was justified on multiple grounds, including that Dr. Kadri’s conduct:
a. Created confusion, stress, and distraction amongst the staff of the renal program;
b. Required those in leadership positions at WRH to divert time from their duties, including patient care, to respond to Dr. Kadri’s conduct and behaviour;
c. Created toxic relationships with his nephrologist colleagues;
d. Was unprofessional and disruptive;
e. Exposed or was reasonably likely to expose patients to harm; and
f. Was reasonably likely to be detrimental to the delivery of quality patient care.
D. Conclusion
This case provides clarity regarding the scope of HPARB’s jurisdiction and confirms that hospitals have wide discretion under the PHA to enact policy and models of care that they determine to be appropriate. It also reinforces previous case law finding that the consideration of patient safety will be considered very broadly. Conduct contributing to toxic work environments that will likely have the secondary effect of negatively impacting patient safety and/or quality of care can be grounds to justify the revocation of privileges.
