The Perils of Suing a Patient for Complaining to a Health Professional’s College

Lawyers who assist health care professionals in responding to complaints very frequently have conversations like the following:

Client: I was just notified of a complaint, which is completely baseless.

Lawyer: Let me assist you in preparing a response, and let’s hope that this complaint will be dismissed by the Inquiries, Complaints and Reports Committee with no further action.

Client: Okay. But first I want to sue the patient for the time they have wasted and the heartache they have caused me!

As hurtful as it can be to a health professional who learns that she is the subject of a complaint by a patient – a patient to whom she provided services using her clinical knowledge, skills and judgment to the best of her ability - commencing an action against the patient is almost never a viable option. On sober second thought, most health professionals come to this realization, and accept that responding to patient complaints is part of their professional obligations and simply one of the “costs of doing business” for being part of a self-regulated profession.

Occasionally, however, professionals insist on proceeding with an action against a patient who has made a complaint about them. A case heard in the Ontario Superior Court of Justice (Petar Tucakov v. Eleanor Engelbert, 2005 CanLII 43074 (ON SC)), and appealed to both the Ontario Court of Appeal (appeal dismissed) and the Supreme Court of Canada (leave to appeal denied) examined the difficulty health professionals face in proceeding with an action of this nature.

Ms. E, a 74 year old widow, attended the office of Dr. T, a dentist, for the first time. According to Ms. E, during the course of an initial examination, Dr. T: utilized dental tools which appeared unsanitary; neglected to wear a mask; and while in speaking in close proximity, inadvertently sprayed his saliva onto her face and into her mouth. Ms. E filed a complaint against Dr. T with the Royal College of Dental Surgeons of Ontario (the “College”).

During the College’s investigation of the complaint, Dr. T was warned not to communicate with the complainant (as is usual practice). However, Dr. T repeatedly contacted Ms. E and threatened to take legal action if Ms. E did not pay a $99.00 emergency exam fee and withdraw her complaint to the College. As could have been anticipated, Ms. E forwarded Dr. T’s correspondence to the College.

Dr. T then commenced an action against Ms. E, alleging that she defamed him in her letter to the College. Ms. E defended the action on the basis that she was protected by the defence of privilege or the doctrine of immunity. She then moved for summary judgment, and succeeded in having the dentist’s claim for defamation dismissed. The Court accepted Ms. E’s position that she had a legal, social or moral duty to communicate information to the College as a statutory body exercising disciplinary powers over its members, and that statements made in the course of proceedings before the College were therefore privileged communications. Accordingly, the Court was satisfied that there was no genuine issue for trial with respect to Dr. T’s claim against his patient, and summary judgment was granted. As typically, a successful party is required to pay the other party’s legal costs, Dr. T was most likely ordered to pay Ms. E’s legal costs associated with the motion.

Dr. T unsuccessfully attempted to appeal the decision, and was ordered to pay $10,000 in costs in connection with the appeal to the Ontario Court of Appeal, and also likely had an additional cost award to pay when his application for leave to appeal to the Supreme Court of Canada was denied! He may well have faced further difficulties with the College (although his licence was not suspended or revoked) as a result of his communications with his patient while the complaint was being investigated.

This case should serve as a warning to health professionals who propose to respond to complaints by taking action against the complainants.