Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. Physicians and Surgeons of British Columbia DECISION NO. 2017-HPA-150(a) October 12, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Physicians and Surgeons of British Columbia COLLEGE AND: A Physician REGISTRANT BEFORE: Fazal Bhimji, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on February 22, 2018 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Michelle Stimac, Counsel Self-represented I STAGE 1 PROCEEDING [1] This application for review has been referred to me for a Stage 1 hearing. At this stage I may decide to: (a) confirm the Inquiry Committee disposition under s.50.6(8)(a) of the Act if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or (b) determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant. [2] Upon careful review of the Complainant s application for review, the record of investigation provided by the College and submissions from the Complainant (the "Record ), I find that this application for review can be fairly, properly and finally
adjudicated at a Stage 1 hearing based on this material without the need for further submissions from the College or Registrant. II INTRODUCTION [3] The complaint was received by the College on April 24, 2017. The complaint concerns treatment provided to the Complainant by the Registrant on March 18, 2011, and subsequent follow up visits. So, it spans some six years between the alleged incidents and the filing of the complaint. [4] The Complainant sought treatment for a melasma spot on her forehead estimated to be the size of two loonies and a red spot on her nose. During the initial examination on March 2, 2011, the Registrant noted there were some visible dilated pores on the Complainant s nose and on top of the lips. The Complainant alleges the Registrant suggested that he would treat the entire face with a Fraxel laser and the treatment was scheduled to be administered on March 18, 2011. The Registrant states that he only treated the areas of involvement, specifically the forehead, nose and perioral region. [5] After the treatment, the Complainant alleges her face became red and inflamed particularly around the mouth and chin and states she was unable to attend at work because her face was peeling scaling and crusting. She states that this led to anxiety and that she has been disabled ever since and unable to return to work. The Registrant states the Complainant developed more significant inflammation than would be anticipated, but this is not rare and was explained on the consent form. He writes that her contention that her face continued to peel, scale and crust with swelling would be unusual and there was no evidence of this when she was examined in the clinic. [6] The Complainant states the Registrant used inappropriate settings and provided inappropriate post treatment advice including using vitamin C which aggravated her sensitive skin. The Registrant wrote that the treatment settings used were conservative and well within those used to treat melasma and provided an abstract from a medical journal to support this contention. [7] Her main complaint is that that the initial ten-minute interview she had with the Registrant was superficial and inadequate for him to receive a proper history and that the quality of consent she provided was inadequate because there was no discussion about less invasive ways of treating her condition using topical agents or localized laser treatments, the risks were not adequately explained and the consent conversation was not recorded in her medical record. The Complainant acknowledges that she signed the consent after taking some medication but admits she does not recall reading much of it. [8] She also expresses concern about the settings used on the laser to treat her, and complains that physicians should not upsell patients to consent to unnecessary medical procedures for monetary gain. The Registrant wrote that he does not sell packages of treatment and that some patients do well with just one treatment and don t require the estimated number of treatments they provide. He also disputed the
Complainant s claim that she was going to be charged thousands of dollars and tendered his billing invoice to dispute that claim. [9] On April 27, 2017, the College wrote to the Complainant acknowledging receipt of her complaint and informed her of the process to investigate it. On the same day, the College sent a copy of her complaint to the Registrant and requested his response. [10] The Registrant responded on May 1, 2017. He outlined the treatment he had provided including the settings and number of passes of the laser treatments and disputed most of the Complainant s claims. He also provided the College with a record of encounters with the Complainant which contain what appear to be contemporaneous notations for each visit, as well as undated consents signed only by the Complainant. All of this response was provided to the Complainant and her comments on it were invited by the College. [11] After being granted a short extension, the Complainant responded to the College by letter dated July 5, 2017. The letter included a table with 42 specific points where the Complainant either had a different explanation or criticism about the Registrant s description of the events which are the subject of this complaint. This reply was provided to the Registrant and his comments were invited by the College. [12] The Registrant sent a letter to the College dated July 12, 2017, in which he reiterates that the Complainant was assessed adequately and treated with appropriate laser treatment settings for her condition. He also states that the consent she signed does warn that prolonged redness can develop sometimes and offered that this could easily have been covered with makeup and would not necessarily preclude someone from returning to work. This letter from the Registrant was sent to the Complainant and she was advised the matter was proceeding to the Inquiry Committee for a decision. His response also included a copy of the Electronic Medical Record ( EMR ) in which all relevant interactions between the Complainant and the Registrant s clinic were recorded. [13] The College determined that the allegations of complications following laser treatment, inadequate informed consent, and inadequate post-treatment care even if proven would normally be concluded with no more than a reprimand and tasked the Registrar to decide the complaint on behalf of the Inquiry Committee under section 32(3)(c) of the Act. [14] The Registrar dismissed the complaint by letter dated August 25, 2017, concluding the care provided to the Complainant was consistent with standard medical practice and informed the Complainant of the conclusion and confirmed the letter would be retained on the Registrant s permanent College file for consideration in the context of any future concerns. [15] In her application to the Review Board, the Complainant alleges the investigation was inadequate because in a he-said/she-said situation the College relied solely on the Registrant s account of the events and failed to contact her psychiatrist who was a witness to her condition after the treatments. She also states that the EMR is incomplete because it does not contain entries prior to March 25, 2011, and which she
opines would contain information about concerns, the consent discussion and medical history which she alleges were not properly documented. She also states that the investigation was inadequate because the College did not investigate the photographs provided by the Registrant to determine if they had been artificially created or enhanced. She does not believe that the UV pictures were taken at the same time as the other photographs because they look identical and may have been photoshopped. She is also critical of the fact that there are no photos taken from various different angles. Finally, she is critical of the Registrant for not having a conversation with her about the risks and benefits of the procedure which should then have been documented on the medical record. [16] The Complainant included a letter from her psychiatrist which confirms she was a patient of his and stating that he saw her after the procedure conducted by the Registrant. The psychiatrist writes that she had very noticeable facial redness and over the weeks following the procedure she began to show symptoms of severe depressive episode, anxiety, rumination and agitation which led to her never fully recovering from this depressive episode and led to the end of her career. He adds In terms of her skin, I observed that this gradually got better and (according to my non-expert opinion) returned more or less to normal a few months after the procedure, but by this time she was in the midst of a severe depressive episode, and I don t think she has ever felt good about her skin since then. [17] The Complainant provided a copy of the College s Accreditation Standard specific to the issue of Patient Care and Consent in which she highlighted the principle which relates to valid consent for major health care, which includes: (a) consent discussion with the patient; (b) documentation of the consent discussion in the patient s medical record; and (c) completion of a consent form. [18] I note that the document also provides that Consent to treatment may be implied or specifically expressed (e.g. in writing). The clinical situation determines the approach required. III APPLICABLE PRINCIPLES Role of the Review Board [19] The role of the Review Board is in part to provide an impartial review of disposition decisions made by Inquiry Committees of designated health colleges in British Columbia. The Act gives the Review Board authority to examine the adequacy of the investigation conducted by or on behalf of the Inquiry Committee and the reasonableness of the disposition. The Review Board does not have authority to conduct its own investigation into the matters which the Inquiry Committee has authority to investigate. [20] If the Review Board reviews the investigation and determines the investigation was inadequate or finds the disposition to be unreasonable, then the Review Board has
the option of sending the matter back to the Inquiry Committee for reconsideration with directions. Adequacy of the Investigation [21] What constitutes an adequate investigation has been reviewed in Review Board Decision No. 2009-HPA-0001(a) to 0004(a) at paras. [97] to [98]: [97] A complainant is not entitled to a perfect investigation, but he or she is entitled to (sic) adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the Inquiry Committee s assessment of the complaint. [98] The degree of diligence expected of the College what degree of investigation was adequate in the circumstances may well vary from complaint to complaint. Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the College will all be relevant factors in determining whether an investigation was adequate in the circumstances. Reasonableness of the Disposition [22] In assessing the reasonableness of the disposition there may be more than one outcome that may be defensible and reasonable under the circumstances based on the evidence gathered. [23] The Review Board has already determined in earlier cases that the decision must withstand a somewhat probing examination. As long as the disposition fits within a range of rational and acceptable solutions which can be reasonably justified, is transparent and intelligible, I must confirm the disposition. The Review Board is not able to conclude a disposition is unreasonable merely because the Review Board might have decided the matter differently. The law provides that the Review Board must defer to the Inquiry Committee s knowledge and experience in the Inquiry Committee s areas of expertise in arriving at the disposition. IV ANALYSIS I adopt and apply the above principles in my analysis below. A. Adequacy of the Investigation [24] The Registrar reviewed the complaint and the response from the Registrant. This response was sent to the Complainant who was given an opportunity to rebut what the Registrant submitted. [25] The Complainant was critical of the investigation because her psychiatrist was not interviewed. I find her psychiatrist would not have direct knowledge of what occurred in terms of consent for the treatment delivered by the Registrant nor would he be able to confirm what the appropriate treatment is in such circumstances. At best he
would be able to speak to what the Complainant shared about her health post-treatment which is not in dispute. He writes that in his non-expert opinion her skin returned to more or less normal in a few months after the procedure. This is consistent with what the Registrant has said also. The Complainant has not specified what else the psychiatrist could add which would be helpful to the Complainant s case. I see no further reason to contact the psychiatrist in this case. The Complainant does not specify who else should have been contacted. [26] The Complainant provided a presentation explaining how digital photographs can be tampered with and how such tampering leaves an electronic trace which can help one determine how and even which computer was used to alter the image. She suggests that the investigation was inadequate because no measures were taken to ascertain the photographs submitted were unaltered and this makes the investigation inadequate. [27] Requiring an Inquiry Committee to go to such lengths to verify the authenticity of photographs for this type of case where there is no allegation of a criminal or serious misconduct would be a stretch of what would be a reasonable investigation in terms of the resources required to adequately determine the complaint. [28] The Inquiry Committee was not critical of the Registrant s treatment of the Complainant and I do not have the authority to second guess the treatment that was provided. I can only decide on the adequacy of the investigation and the reasonableness of the disposition. [29] The fact that the EMR does not encompass entries before March 25, 2011, could be sufficient for me to declare that the investigation was inadequate in some circumstances. This might be warranted where there has been serious harm because of the treatment administered, or where the Registrant may face a disciplinary sanction from the College because of their action or inaction. In circumstances where, as the College determined, even if the allegations are proven it is unlikely to result in anything more than a reprimand, I am not persuaded to order that the investigation was inadequate and that records which are now more than seven years old should be produced. Even if the records are still available there are two possible outcomes. One outcome is that the Record would show that a conversation leading to informed consent took place; nullifying this part of the complaint. The other outcome is that there is nothing in the Record to definitively prove that the conversation did or did not take place. It is not likely that the Record would say that no conversation took place. [30] The fact that the Complainant is not satisfied with the conclusions reached by the Inquiry Committee does not mean that the investigation was inadequate. The Inquiry Committee is not required to turn over every stone. I find the actions of the Registrar on behalf of the Inquiry Committee constituted an adequate investigation despite the fact that the EMR was not provided for the time the Complainant asked. B. Reasonableness of the Disposition [31] The Standard submitted by the Complainant states Consent to treatment may be implied or specifically expressed (e.g. in writing). The clinical situation determines
the approach required. In this situation the Complainant states that there was only a bit of mild pigmentation on her forehead which she was seeking to have addressed. The fact that she attended the clinic to have this mild condition addressed falls on a continuum where there was implied consent even if the consent she acknowledged signing was not witnessed and signed. This was not a case where the Registrant failed completely to obtain consent. [32] Finally, the evidence before the Inquiry Committee addresses the fact that the Complainant did not disclose her ongoing psychiatric and body dysmorphic issues. The Registrant stated in his response to the complaint that had he been aware of these issues, he would not have recommended this treatment for her. He also apologizes to the Complainant for having contributed to her anxiety and concerns. In terms of the Registrant failing to collect a complete history, as the Registrar concluded, even if these issues were proven, they were not likely to result in more than a reprimand. [33] The issues of properly witnessing the signing of the consent and discussing alternatives such as creams to treat the pigmentation issues could have been addressed differently by the Registrant but would not likely have led to more than a reprimand as stated in the Inquiry Committee disposition. [34] It was therefore reasonable for the Registrar to conclude that the matter was unlikely to warrant more than a reprimand and to address it under s.32(3)(c) of the Act. V CONCLUSION [35] For the reasons given above, I find that there was an adequate investigation by the Inquiry Committee and that its disposition was reasonable. I confirm the disposition of the Inquiry Committee. [36] In reaching my decision, I considered all the information that was before me whether specifically referenced in this decision or not. Fazal Bhimji Fazal Bhimji, Panel Chair Health Professions Review Board