the discipline committee of the college of...
TRANSCRIPT
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Indexed as:
Ontario (College of Physicians and Surgeons of Ontario) v. RST, 2016 ONCPSD 35
THE DISCIPLINE COMMITTEE OF THE COLLEGE
OF PHYSICIANS AND SURGEONS OF ONTARIO
IN THE MATTER OF a Hearing directed by the Inquiries, Complaints and Reports Committee of the
College of Physicians and Surgeons of Ontario pursuant to Section 26(1) of the Health Professions
Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as
amended.
B E T W E E N:
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
- and -
DR. RST
PANEL MEMBERS:
DR. J. WATTS
MR. S. BERI (dissenting)
DR. P. GARFINKEL
DR. M. GABEL
COUNSEL FOR THE COLLEGE OF PHYSICIANS AND SURGEONS OF
ONTARIO:
MR. L. SOKOLOV
COUNSEL FOR DR. RST:
MS. A. SPAFFORD
MS. Z. LEVY
INDEPENDENT COUNSEL FOR THE DISCIPLINE COMMITTEE:
MS. J. MCALEER
PUBLICATION BAN
Hearing Dates: February 9 to 12, 2016; March 7 to 11, 2016; April 11, 12, 13, and 15, 2016;
and April 25, 2016
Decision Date: October 25, 2016
Release of Written Reasons: October 25, 2016
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DECISION AND REASONS FOR DECISION
The Discipline Committee (the “Committee”) of the College of Physicians and Surgeons
of Ontario heard this matter at Toronto on February 9 to 12, 2016; March 7 to 11, 2016;
April 11, 12, 13, and 15, 2016; and April 25, 2016. At the conclusion of the hearing, the
Committee reserved its finding.
ALLEGATIONS
The Notice of Hearing alleged that Dr. RST committed an act of professional
misconduct:
1. under paragraph 1(1)2 of Ontario Regulation 856/93 made under the Medicine
Act, 1991 (“O. Reg. 856/93”), in that he has failed to maintain the standard of
practice of the profession; and
2. under paragraph 1(1)33 of O. Reg. 856/93, in that he has engaged in conduct or an
act or omission relevant to the practice of medicine that, having regard to all the
circumstances, would reasonably be regarded by members as disgraceful,
dishonourable or unprofessional.
The Notice of Hearing also alleged that Dr. RST is incompetent as defined by subsection
52(1) of the Health Professions Procedural Code (the “Code”), which is schedule 2 to the
Regulated Health Professions Act, 1991.
RESPONSE TO ALLEGATIONS
Dr. RST denied the allegations in the Notice of Hearing.
INVESTIGATION AND REFERRAL
Dr. RST practises cardiology in Peterborough as lead physician and owner of the
Kawartha Cardiology Clinic (KCC). The College alleges that Dr. RST is incompetent and
failed to maintain the standard of practice of the profession in the care of Patient AT and
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24 other patients whose charts were chosen at random for assessment. Patient AT was a
young patient who died unexpectedly. A malpractice case ensued with multiple
defendants, including Dr. RST. The case was settled and, in due course, reported by Dr.
RST to the College as per his statutory obligation. As a result, the College instigated a
section 75 investigation into Dr. RST’s practice. Dr. Massel, the College’s expert, was
appointed as the medical inspector. He was provided with 24 patient charts randomly
chosen by the College, as well as Patient AT’s chart. Dr. Massel produced a report
opining that Dr. RST failed to maintain the standard of practice of the profession and is
incompetent in his care of 24 of the 25 charts reviewed. The matter was then referred to
the Discipline Committee.
BURDEN AND STANDARD OF PROOF
The burden is on the College to prove each of these allegations. The Supreme Court of
Canada enunciated the standard of proof in F.H. v. McDougall as the civil standard of
balance of probabilities. The evidence must be clear, cogent, and convincing to satisfy the
balance of probabilities standard. The Committee’s findings are based exclusively on the
evidence admitted, including both oral testimony and exhibits. The Committee assessed
the evidence in its totality and did not assess individual items of evidence in isolation.
In assessing the allegation of whether Dr. RST failed to maintain the standard of practice
of the profession, the Committee considered what is reasonably expected of the ordinary
competent practitioner in the field of cardiology in Ontario. The Committee assessed Dr.
RST’s care with respect to the specific patients whose care was at issue.
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In assessing the allegation of whether Dr. RST engaged in disgraceful, dishonourable, or
unprofessional conduct, the Committee considered the conduct of Dr. RST with respect
to the patients whose care was at issue; the number of patients seen at the clinic on a daily
basis; the frequency, appropriateness and referral of cardiac testing; and the format and
care of medical records.
In assessing the allegation of incompetence, the Committee was aware that it must be
satisfied that Dr. RST is presently incompetent in order to make such a finding. Section
52(1) of the Code provides that, “A panel shall find a member to be incompetent if the
member’s professional care of a patient displayed a lack of knowledge, skill or judgment
of a nature or to an extent that demonstrates that the member is unfit to continue to
practise or that the member’s practice should be restricted.”
DECISION
The Committee, having closely considered the evidence, concludes that the College did
not meet the burden of proof with respect to the allegations.
ANALYSIS
A. DR. RST’s PRACTICE
It is important to understand the environment in which Dr. RST practises. The allegations
cannot be divorced from the unique way in which the KCC was established, its place in
the community health care system, its association with the local hospital and physicians,
and the way in which it processes individual patients. As well, geography and
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demographics play a role in the manner in which cardiology services are provided by Dr.
RST. The overview of Dr. RST’s practice and the role of the KCC below is based on the
oral and written evidence provided by Dr. RST, other clinic physicians, and clinic staff.
(1) The Community
Peterborough and the surrounding area is composed of predominately rural and small
population with small population centres. It is considered an underserviced area for
cardiology. The population of the service area has, according to Dr. RST, the largest
percentage of aged people in Ontario. There is, based on smoking, age, and lifestyle
issues, an apparently large burden of cardiac disease.
The KCC and the Peterborough Regional Health Centre (PRHC) serve as the central
focus of cardiac care for this rural population and its multiple small communities. Almost
all the family physicians in the area are associated with a single group practice.
(2) The PRHC
When Dr. RST began practice in the area, the PRHC had minimal cardiac services. Under
the leadership of Dr. RST, a cardiac catheterization laboratory was established at the
PRHC. There are cardiac surgeons capable of pacemaker insertion at the PRHC.
Revascularization procedures are referred to Kingston or Toronto. The PRHC does not
have any echocardiogram or nuclear cardiac study facilities. These tests are referred to
facilities at the KCC. There is a referral system in effect from the emergency room of the
PRHC to the KCC. Dr. RST has courtesy privileges at the PRHC but does not admit
patients or perform cardiac catheterizations at the PRHC.
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(3) The KCC
The KCC is staffed by Dr. RST and four or five additional cardiologists. All community
cardiology services are present in the same building. These comprise a cardiac laboratory,
echocardiogram testing, nuclear cardiac testing, and multiple special clinics, including a
Pacemaker Clinic (partially supported by a PRHC subsidy), a Congestive Heart Failure
Clinic, an Urgent Care Clinic, a Transient Ischemic Attack (TIA) Clinic, and a
Rehabilitation Clinic. There is also a blood drawing area.
All patients seen at the KCC are referred either by local physicians or the PRHC. The
KCC has approximately 72 employees including nurses, technicians, and ancillary and
support services. The KCC does a significant amount of community outreach. Dr. RST
conducts satellite clinics in communities within the service area on a regular basis.
(4) Medical Records
There is a chart room at the KCC where all information and tests are centralized. When
patient charts are needed by a physician, all the information from multiple sources is
correlated in a process called “cleaning” the charts. Exhibit 18 described the order in
which the chart is arranged prior to being seen by a physician. Additional laboratory data
is available online and, since 2006, also available to Dr. RST when he is attending at
remote clinics.
Dr. RST dictates a chart note which stands as the patient’s chart record and includes any
major intake workup, the details of a physical (if performed), all laboratory results,
patient history, and treatment plans. It also serves as the referral letter to the referring
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physician. A new note is interpolated into the previous note. (There is a potential in this
system for the perpetuation of error, which occurred in Patient AT’s case, as will be noted
later in these reasons). This same referral letter and record is used as a template for each
subsequent letter to a referring physician with a notation in each section if a change has
been made from the previous report. The intention is that each letter should stand alone as
the continuing story of the patient.
(5) The Ownership Structure
Dr. RST’s wife is the clinic manager and part owner of the echo-cardiology laboratory
services. Dr. RST and three other clinic physicians are owners of the nuclear cardiac
laboratory. The Committee heard no evidence as to the KCC ownership structure. As will
be described in greater detail below, the Committee heard evidence that none of these
clinics is profitable.
Signage is posted in the clinic advising patients that “Dr. RST has a proprietary interest
as a shareholder in Kawartha Diagnostic Imaging LTD. (Directly and through Dr. RST
Medicine Professional Corporation.) Kawartha Diagnostic Imaging Ltd. provides Nuclear
Medicine testing services pursuant to a license issued under the Independent Health
Facilities Act (Ontario). All patients are reminded that they may obtain their diagnostic
testing services at any other facility if they wish to do so.”
(6) Processing of Patients
Patients referred from area physicians or the emergency room at the PRHC are seen by
nurses who do the initial history and physical. The nurses then present patients to Dr.
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RST. Patients’ tests are often done prior to the patient being seen by Dr. RST. Charts are
dictated by Dr. RST, and all follow-up tests are then ordered by the nursing staff. Patients
are seen in follow-up to receive results of tests that are often performed on the same day
as their appointment. Patients are streamed to the required specialty clinics based on
diagnosis and need.
(7) Summary
The Committee was presented with a uniquely arranged cardiology clinic in an under-
serviced area with integration of hospital-clinic patient service. The allegations cannot be
considered without appreciation of this context.
B. THE FACT WITNESSES
(1) Dr. RST
Dr. RST provides, in association with the PRHC, a comprehensive cardiology service.
His philosophy of patient care is one of high activism. He works on the basis that for
patients with established cardiac findings, aggressive diagnosis and close follow-up will
discover problems before they become terminal. He believes aggressive treatment best
serves the aged and those with poor health habits among his patient population.
He testified that while he performs physical examinations when indicated, laboratory
tests are better at showing what is happening. He testified that serial tests provide
therapeutic direction. He believes that routine follow-up of tests is preferable to
occasional follow-up based on symptoms.
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He testified that he follows the Canadian Cardiology Network (CCN) standards of 2012.
From 2008 to 2012, he followed the CCN Guidelines. Prior to 2008, he followed
Guidelines for the Provision of Echocardiography in Canada: recommendations of a Joint
Canadian Cardiovascular Society and Canadian Society of Echocardiography Consensus
Panel, October 23, 2004). He stated that following the promulgation of the 2012 CCN
Standards, he changed the interval of some of the diagnostic tests he ordered to match the
evolving standards.
Dr. RST testified and illustrated that many tests were done and interpreted by other
cardiologists at the clinic and he was not responsible for all tests, process, and
interpretation (as assumed by Dr. Massel).
In contrast to most cardiologists, Dr. RST often has tests ordered, completed, and
available prior to seeing patients. He utilizes nurses to do some entry history and
physicals.
While his day sheet shows that he sees many patients daily, he testified that he gives each
as much time “as needed.” There was no evidence to contradict this assertion. He stated
that he stays each day as long as necessary to see all patients scheduled including urgent
referrals, and has yet to run into a situation where there were more patients than could be
seen in a day and evening. Apparently no cardiac referral or symptomatic person is turned
away. There are other cardiologists on duty each day with him or others scheduled to be
available for non-scheduled patients or supervision in the echo cardiology laboratory.
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Apparently, sufficient staff stay until the last patient is seen. He dictates while the patient
is present and uses the Congestive Heart Failure Clinic, Pacemaker Clinic, and
Rehabilitation Clinic for follow-up as appropriate.
Dr. RST does not follow up with diabetic patients. Dr. RST stated that diabetes is
followed by the referring family practitioners, and this is well known to the referral
network of physicians. (It appears that almost all family practitioners in this area are part
of a single group practice.)
Dr. RST, as well as Dr. Hartleib and Dr. RST’s wife, testified as to the financial
arrangements of the testing facilities at the clinic. Dr. RST is part owner of the
echocardiology lab, and along with other clinic doctors, owns the nuclear diagnostic
facilities. He testified that if not available at the clinic, there would be no easy place for
patients to get the tests they need. He also testified that the laboratories functioned at a
financial loss. He testified that the nuclear facilities were purchased in order to keep the
license in the community. He and Dr. Hartleib testified that it was not profitable, but was
necessary for community care and there was no need to duplicate these services at the
PRHC. Dr. RST testified that he was instrumental in getting a cardiac catheterization
laboratory at the PRHC. He derives no financial benefit from the cardiac catheterization
laboratory at the PRHC.
Dr. RST testified that his clinical philosophy is that arteriosclerosis is a general disease,
and if found in one place in the body, it will be elsewhere as well. He therefore does
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carotid doppler to assess arteriosclerosis in the extra cardiac vessels as a surrogate for
cardiac issues. If he finds a meaningful degree of carotid narrowing, he will institute
treatment directed at blood pressure, lipids, and inflammation. With tests, he monitors
cardiac issues that if not present, he assumes will be present in the future. This practice
was not criticized by either expert and was in part responsible for the high test frequency
noted by both experts.
While the arrangement of Dr. RST’s practice is different from that of the College’s
expert, and in all likelihood the majority of physicians who practice cardiology, it appears
designed specifically to cope with (i) the demographics of this under-serviced area, (ii) a
philosophy of aggressive diagnosis and treatment to preclude missing rapid developing
changes of cardiac status, (iii) a desire to see all referrals from family patients and
hospital with speed; and (iv) a desire to have necessary laboratory facilities and specialty
clinics available. The Committee expects that while there was evidence of long wait
times, this system reduces the stress for his patients by having intake, tests, interpretation,
and treatment all occur on the same day, adding to both efficiency and patient-centered
care.
With regard to each of the charts reviewed by Dr. Massel, Dr. RST testified that he
followed the CCN Guidelines/Standards. He defended his choice not to do physicals at
every appointment, and he defended his testing and treatment practices.
(2) Dr. RST’s wife
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Dr. RST’s wife is the KCC clinic manager. She testified as to the organization of the
KCC and her role as part owner of one of the diagnostic laboratories at the clinic. Her
testimony was useful in aiding the Committee’s understanding of the clinic structure and
ownership. She testified that the laboratory in which she has a financial interest was not
profitable. There was no evidence to the contrary. We considered Dr. RST’s wife to be
credible and reliable in her description of KCC practices and finances. The Committee
did not find that her personal relationship with Dr. RST influenced her evidence.
(3) Ms. Colleen Valiquette
Ms. Valiquette is a nurse at the clinic. She described Dr. RST’s patient flow process and
her role therein. She testified that she sees 20 to 25 patients per day. She does the
preliminary workup, including taking a history, conducting a physical examination, and
conducting tests such as ECG. She then presents each patient to Dr. RST. She was not
cross-examined. The Committee found her evidence to be reliable.
(4) Other KCC employees
The defence called Natalie Burgess, Janet White, Julie Steel, and Arica Clark, all of
whom worked at the KCC. Each described how the clinics at the KCC worked and the
degree of integration and delegation. They provided uncontested testimony concerning
the KCC’s administrative work flow, the role of ancillary staff, and the support services
provided to Dr. RST and the other cardiologists at the KCC. The Committee found this
evidence helpful in understanding how the KCC is run and the impact on Dr. RST’s
patient load.
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(5) Local Physicians
Dr. RST called local physicians to testify as to their interactions with him and the KCC.
None of these physicians were qualified as experts and the Committee therefore did not
rely on their evidence to determine the standard of practice of the profession. Some of
these physicians provided helpful evidence on the usefulness of Dr. RST’s medical
consult letters on their own management of patients. For example, Dr. Kammila, a
community physician, described the positive use of Dr. RST’s notes and consultant
letters.
Some physicians testified concerning either their impressions of the care they received
personally from Dr. RST, or about the general availability and processes of the KCC.
This evidence was useful to refute some of the factual assumptions that Dr. Massel had
made with respect to Dr. RST’s practice. All the physicians who testified were credible
and reliable. Many of these physicians work closely with Dr. RST, but this did not appear
to impact the objectivity of their evidence.
(6) Dr. Hartleib
Dr. Hartleib is a cardiologist and the supervisor of the echocardiogram laboratory at the
KCC. Dr. Massel had critiqued the use of echocardiograms at the clinic. Dr. Hartleib
testified that he performs and reads many of the tests referred to by Dr. Massel. He
provided unchallenged testimony on the quality controls used for laboratory testing,
including educational rounds with technologists. He testified, with illustrations, about the
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echo Doppler on Patient AE, which Dr. Massel had criticized as inadequate. Leaving
aside the fact that Dr. Massel ascribed the poor quality and interpretation of this test to
Dr. RST (who had in fact not read this test), Dr. Hartleib was able to demonstrate to the
Committee the adequacy of the test and its completeness. He also compared the results of
this test to other tests performed on Patient AE to illustrate the progression of her disease.
We found his explanations and observations to be useful to the Committee in assessing
the testing on Patient AE.
(7) Dr. Feindel
Dr. Chris Feindel is a cardiac surgeon at the University Health Network in Toronto. He
was part of the secondary panel which evaluated and commented on the 2012 CNN
Standards. He described the process of arriving at the 2012 CCN Standards and the
diversity of the panelists. His testimony on this issue was useful to the Committee as Dr.
Massel had dismissed these standards in part based on the absence of geographical
diversity of the panelists. This will be discussed in greater detail below. He also endorsed
the format of Dr. RST’s consult. We found his testimony reliable.
(8) Patient Witnesses
The Committee heard testimony from Patient AA and Patient AW, who were patients
whose charts were the subject of the College’s investigation. They were called by the
defence. Both had positive comments about their care, and testified that they did not feel
rushed at any of their appointments. They were also able to confirm that Dr. RST
discussed the benefits and risks of nuclear studies with each of them, which Dr. Massel
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said was not documented. They were credible and reliable witnesses. The College did not
call any of the patients whose care was at issue.
C. THE EXPERT WITNESSES
(1) Dr. D. Massel
Dr. Massel practises with a community cardiology group in Victoria, B.C. He wrote his
report prior to assuming this position. When he was retained by the College, he was on
staff at the London Health Sciences Centre and the University of Western Ontario School
of Medicine. At the time of writing his report, he was a staff cardiologist at the University
Campus of the London Health Sciences Centre and an Associate Professor of Medicine at
the Western University Schulich School of Medicine. His academic roles included
resident teaching, research in the management of acute coronary syndromes, clinical
decision making and interpretation of the medical literature. His clinical practice covers
all types of cardiac disease, and he cared for in-hospital cardiology patients. The
Committee accepted him as a qualified expert in cardiology.
(2) Dr. David H. Fitchett
Dr. Fitchett was called by the defence. He is a member of the Cardiology Division of St.
Michael’s Hospital. He is an associate professor of medicine at the University of Toronto.
His practice is at the hospital and the Toronto Heart Centre. He has served as an examiner
for the Royal College for the Specialist Fellowship in Cardiology. He has previous
experience working in community cardiology at the Whitby Cardiovascular Institute. He
has ten years’ experience developing clinical guidelines and promoting their
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implementation. He has 35 years’ experience working closely with community based
cardiologists.
At the request of the defence, Dr. Fitchett reviewed the notes and records of six cases that
were part of the 25 charts reviewed by Dr. Massel. In a supplementary report, he stated
that he reviewed nine additional charts from the 25 original patients and that this
additional review did not change his opinion from the review of the original six charts.
Dr. Fitchett’s overall opinion was that Dr. RST was competent and his care of the patients
he reviewed met the standard of practice of the profession.
The Committee carefully considered the weight to be given the expert testimony, taking
into account methodology, the foundation for opinions, and concerns raised regarding
objectivity. The Committee considered the experience and assumptions of the experts, the
inquiries each made, and the documents each reviewed.
(3) The Standard of Practice of the Profession
Dr. Massel was adamant that the only applicable standards were American guidelines he
relied on. He gave short shrift to the CCN Standards, which were sponsored and
approved by the Ministry of Health and Long Term Care (MOHLTC) and authored by
the Canadian Cardiology Network. The CCN prepared guidelines in 2008, which were
approved as standards in 2012. The CCN Guidelines/Standards were endorsed by Dr.
Fitchett.
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Dr. Massel testified that the American guidelines were in his view evidence-based,
suggesting the CCN Guidelines/Standards were not. In his testimony, he treated the
American guidelines as if they were standards. It appeared to the Committee that Dr.
Massel did not differentiate between the two levels of clinical direction.
Dr. Massel was dismissive of the CCN guidelines/standards and stated he had never
heard of them while in practice in Ontario. The Committee found it surprising that a
practising cardiologist in Ontario would not be aware of these clinical documents. The
fact that he did not even know of the existence of the CCN Guidelines/Standards was
troubling to the Committee. We would have expected a practising cardiologist to be
aware of guidelines and standards promulgated and accepted by the MOHLTC.
Dr. Massel was adamant that not only did he prefer the American guidelines over the
CCN Guidelines/Standards, but denounced the CCN Guidelines/ Standards as self-
serving, and misstating the variety of voices of Ontario. He stated the CCN
Guidelines/Standards were Toronto centric and the writers did not fully represent
Ontario. Again, he stated this opinion absolutely. Testimony, however, as to the location
of the members of the committee that promulgated these standards showed that they were
from a wide area of Ontario as well as including consultations with extra-provincial
cardiac physicians.
Exhibit 14, an article regarding the use of the American guidelines, reviewed patterns of
community practice in the use of cardiac stress testing in the United States. The article
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illustrates that more than half of patients of American cardiologists underwent tests that
exceeded the American guidelines. It would appear that the guidelines, in practice, are
not as rigidly followed as Dr. Massel insisted.
The document, “College of Physicians and Surgeons of Ontario Assessing Standard of
Practice of the Profession” (Exhibit 11) cautions assessors to be aware of conflicting
standards and advises an academic physician to consider what other reasonable and
ethical physicians would do under the same circumstances. The Committee found that Dr.
Massel did not turn his mind to the fact that there were widely acceptable Canadian
standards, namely the CCN Guidelines/Standards.
The Committee respectfully disagrees with Dr. Massel’s decision to disregard the CCN
Guidelines/ Standards in assessing the standard of practice of the profession for an
Ontario cardiologist. While the American guidelines he cites are rigorous, basing his
opinion on these American guidelines is inconsistent with the expectation that assessors
are to be aware of conflicting standards, and that an academic physician ought to consider
what other reasonable and ethical physicians would do under the same circumstances.
Dr. Massel had a singular view of cardiology practice, focusing on his choice of
guidelines and leaving no room for variations in clinical practice or the availability of
other widely accepted standards. The Committee did not find this to be reasonable. The
Committee found that Dr. Massel’s unwillingness to consider other standards in
evaluating Dr. RST’s practice undermined the reliability and the weight the Committee
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could give to his opinions. A willingness to consider accepted standards followed in
Ontario might well have allowed him to evaluate aspects of Dr. RST’s practice in a more
objective manner, which would have been of more assistance to the Committee.
(3) Analysis of Expert Evidence
Dr. Massel concluded that 24 of the 25 patient charts reviewed were below the standard
of practice of the professions. In summary, it was his opinion that Dr. RST failed to
maintain the standard of practice of the profession with respect to the following:
(i) The Organization and Structure of the Charts
Dr. Massel found the referral letters and the charting of each patient visit to be complex
and difficult to understand. It is unfortunate that Dr. Massel was given charts that did not
necessarily include the most recent lab results. The Committee, however, had no
difficulty in its review of the charts.
As described above, the method of charting was described by Dr. RST, and there was
evidence from several local physicians who testified that they found the structure of the
notes useful. Dr. Fitchett’s opinion was that the structure of the notes was useful.
This method of charting appears to allow each consultant note to reflect all that has
occurred, without the necessity for reference to previous assessments. Any change in the
report, such as a change in history or physical or test results, was noted in parentheses as
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updated on that date. There is no question that this form of charting is unique and takes
getting used to, but all the information is available.
The Committee finds that the allegation that Dr. RST's method of charting failed to
maintain the standard of practice of the profession is not proved.
(ii) Patient Volume
Dr. Massel was of the opinion that it was not possible to effectively see and care for the
large number of patients seen daily by Dr. RST. He stated that an average cardiologist
would or could see no more than 20 patients a day. The sample day sheets tendered in
evidence indicate Dr. RST saw 52, 39, 75 and 51 patients, respectively, on each day.
Dr. Fitchett testified that the number of patient visits alone cannot be used to assess
quality of care. It was his opinion that since a large number of patients were seen for
follow-ups visits, and given Dr. RST’s method of practice, his patient volume alone did
not result in his care falling below the standard of practice of the profession.
The Committee finds that this patient volume can only be sustained by adequate support
systems and the continued health of Dr. RST. A single physician practising with minimal
support staff, conducting consultations, with this patient volume would rightfully cause
reason for concern. We fully understand why Dr. Massel or any other physician would
have concerns given this patient volume, but one must look past the numbers at the
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support systems in place and the evidence that was provided with respect to the nature of
those visits and the care provided.
As noted, Dr. RST utilized delegated nurses to prepare the chart, interview the patient and
conduct physicals on up to 25 patients per day. Further, a great number of the patients
were seen for straight forward follow-up test results.
Dr. RST and support staff also testified that he worked from 8:00 am until all patients
were seen, however late that might be. Patients testified they were never rushed and were
seen in the evening at times. Dr. RST testified that he sees patients for as long as needed.
Unfortunately, Dr. Massel did not have or request the opportunity to see the KCC
functioning prior to his testimony. The Committee was not persuaded that in the
circumstances of Dr. RST’s practice, high patient volume resulted in a failure to maintain
the standard of practice of the profession.
Therefore, the Committee finds that the allegation that Dr. RST failed to maintain the
standard of practice of the profession on the basis of high patient volume is not proved.
(iii) Frequency and Referral for Testing
Dr. Massel opined that at least “70%” of the tests ordered in the charts he reviewed did
not meet the American guidelines and were therefore unnecessary. Dr. Massel also
concluded that the quality of testing was below standard, specifically citing the
echocardiogram in the case of Patient AE, which will be discussed below.
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Dr. Massel testified that he found it hard to believe that PRHC did not have cardiac
laboratory services such as echocardiogram and nuclear studies. He testified, “I am
surprised but maybe it is true that Peterborough only has one place to do
electrocardiograms for the entire region”. We assume he meant echocardiograms. We
note the use of word “maybe” as indicative of his doubtful attitude towards Dr. RST’s
evidence in general. While Dr. Massel doubted an Ontario hospital would lack these
services, the evidence was that the PRHC and KCC had effectively decided not to
duplicate services. Dr. Massed ignored the fact that the PRHC shared the work load with
the KCC. Dr. Massel was unaware that there were no alternative testing facilities for
patients. Systemic issues were ascribed to Dr. RST rather than recognizing that these
were reflective of the community.
Dr. Fitchett opined that with Dr. RST’s philosophy of active intervention, his testing was
within the bounds of good practice and in keeping with the CCN Standards. Dr. Fitchett
noted that regular testing in the community setting is customary.
Cost of testing is a concern which we acknowledge, but our role is to decide if Dr. RST,
in his testing practices, failed to maintain the standard of practice of the profession.
Dr. RST followed the CCN Guidelines prior to 2012. When the CCN Standards were
approved, he adjusted some of his practices to comply with the CCN standards. If one
supports as reasonable Dr. RST’s philosophy of aggressive diagnosis and management of
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cardiac conditions, then one might argue the gain in lowering patient morbidity and
mortality outweighs what others might consider excessive testing.
Dr. Massel opined that the American guidelines concerning testing, which he utilizes in
his own practice and taught in his academic role, are the only ones to be used to evaluate
Dr. RST. We take issue with that, as these are only one set of accepted guidelines. We
note that guidelines are just that, and we were presented with evidence that at least in one
area, the guidelines espoused as the standard by Dr. Massel are only followed by
approximately 50% of American cardiologists. To utilize these as the only tool to
evaluate Dr. RST leaves out other acceptable standards. The rigidity of Dr. Massel’s use
of the “American” guidelines detracts from a reasonable overview of Dr. RST’s practice.
The Committee finds the appropriate standard of the profession for testing in the
treatment of cardiac patients in Ontario is that which is reflected in the CCN
Guidelines/Standards. The evidence shows that Dr. RST is practising within the CCN
Guidelines/Standards. The Committee prefers the opinion of Dr. Fitchett that Dr. RST’s
testing was appropriate and he did not fail to maintain the standard of practice of the
profession.
Dr. Massel suggested that the high frequency of testing may have been driven by a desire
for profit given the ownership structure of the laboratories. The ownership structure of
the testing facilities gives rise to a need to dispel any concern that testing is being ordered
for financial gain, either consciously or unconsciously. The Committee heard uncontested
25
testimony from Dr. RST and Dr. Hartleib that these testing laboratories do not produce
financial gain. The Committee does not find that there was anything improper in this case
with respect to fact that Dr. RST referred his patients for testing at labs or clinics in
which he held a financial interest. The interest was disclosed to patients, there was an
absence of other reasonable alternatives, and there is no evidence that Dr. RST made any
profit from these referrals.
On the issue of excess radiologic exposure (which Dr. Massel saw was a major problem),
Dr. Fitchett balanced the probabilities of inciting cancer vs. the benefits of diagnosis and
treatment of cardiac issues. Dr. Massel, by contrast, only focused on the issue of
radiation, without balancing the benefits of testing. The Committee preferred the
evidence of Dr. Fitchett on this point.
The suggestion that Dr. RST’s aggressive approach causes inadvertent harm is a
consideration, but we have not been presented with persuasive evidence that Dr. RST’ss
approach in any of the cases at issue fell below the standard of practice or resulted in
harm to his patients.
(iv) Failure to Perform a Physical Examination at All Visits.
Dr. Massel opined that the physical exam was a necessary and a required part of the
patient visit. In his review of the OHIP schedule and Dr. RST’s billings, he made an
assumption that the most common code that Dr. RST utilized required a physical
examination in order to be billed. He relied on the opinion of a billing clerk at his London
practice. When he contacted OHIP to confirm, he discovered and modified his report
26
acknowledging that the OHIP schedule code did not make physical examination
obligatory. Nevertheless, he stated his opinion that a competent cardiologist would do a
physical examination at each appointment.
Dr. Fitchett agreed that conducting a physical exam at each visit was common, but
maintained that the practice varied from doctor to doctor and from community to
community. Dr. Fitchett was of the opinion that the physical was not always helpful. Dr.
Fitchett did not think that failing to do physicals on all returning patients was a failure to
maintain the standard of practice of the profession.
Dr. RST testified that the only way to assess chronic disease is via testing and that while
he performed a physical examination on all new patients, and nurses were doing so as
well in their clinics, he does not do one unless it appears to him to be needed.
The Committee was informed nurses often do physicals before patients see Dr. RST.
Nurses also conduct physicals at the various clinics in the KCC. The Committee would
have expected nurses’ notes of the physicals they conduct to be in the chart, but they were
not. Dr. Massel testified that he was not informed that nurses were delegated to take
history, perform physicals, and order tests.
While we accept the uncontested testimony of Dr. RST and the nurses that the nurses
took a history and did a physical prior to examination by Dr. RST and orally presented to
him the results, the lack of a nurse’s note in the chart to that effect is not acceptable, as
27
we do not have a record as to how patients are processed. We would recommend that Dr.
RST have a record of all physical examinations that are performed by others in the patient
chart.
As technology increases, reliance on tests increases and yet a physical examination is still
commonly conducted. Did the fact that Dr. RST did not always perform physical
examinations, relying instead on tests, history, nurses, and his own opinion as to when to
do physical examinations result in a failure to maintain the standard of practice of the
profession? On the balance of probabilities, the Committee finds that it does not. The
Committee found that the standard of practice of the profession does not require a
physical at every appointment.
(v) Follow-up of Diabetic Patients
Dr. Massel stated that Dr. RST’s failure to provide diabetic care was below the standard
expected. When presented with the explanation that diabetic follow-up is done by the
referring family practitioner, he refused to consider that this was an acceptable shared
care practice. The Committee found his rigidity in this area to be unreasonable and it was
a significant element in our assessment of his objectivity.
The Committee did not find that Dr. RST failed to maintain the standard of practice with
respect to any of the diabetic patients whose care was at issue.
(4) Objectivity of the Experts
The Committee found Dr. Fitchett’s evidence to be balanced and objective. He had an
appreciation of the difference in guidelines and standards, and gave consideration to the
28
unique ways in which Dr. RST’s practice diverged from more traditional ways of
organizing a practice. Dr. Fitchett looked at the variability in clinical work, and at the
care provided to patients. The Committee preferred his balanced and descriptive
testimony to that of Dr. Massel.
Dr. Fitchett acknowledged that he knew Dr. RST and has cared for a number of his
patients. He stated in his written report that he “has always been impressed by the
standard of care provided as well “as the appropriateness of referral for tertiary cardiac
care.” His previous clinical relationship with Dr. RST was noted and this relationship was
taken into consideration by the Committee and evaluated in the light of all of his
testimony. The Committee found, however, that this did not detract from the weight we
gave to this testimony.
The defence argued that Dr. Massel was not impartial. While there is no question that Dr.
Massel is a well-trained and competent physician in cardiology, the Committee did have
concerns regarding the objectivity of his evidence.
Dr. Massel was cross-examined about a telephone conversation he had with a College
investigator approximately two weeks before he interviewed Dr. RST. The investigator
did not testify but the College confirmed that the investigator made the notes and that the
comments in quotes were statements Dr. Massel made to the investigator. The
investigator notes that Dr. Massel had concerns regarding Dr. RST’s OHIP billings and
also raised a potential conflict of interest given that Dr. RST’s wife is a shareholder in the
29
clinic where the blood work is done. The investigator notes that Dr. Massel also had
concerns about submitting his report and “queries if there will be repercussion.” He is
quoted by the investigator as saying “This is going to get messy”, “It’s outrageous”
“when Ministry of Health gets hold of this it is going to hurt me,” and “I am not going to
be able to work in the province.” The investigator also made a note that Dr. Massel stated
with respect to Dr. RST, “Outrageous, should be in jail”, “ripping off the system.” Dr.
Massel did not deny making these statements, but was not willing to admit that he did
make them. He testified that he had no memory of the conversation, and therefore he
could not accept or deny it. He did speculate, however, that these comments were “born
of frustration”. Later, he stated that the process “was just annoying at times as opposed to
frustrating.” He would not admit that the investigator’s notes described his attitude at the
time of the conversation. The defence suggested that there remarks reflected a bias on
behalf of Dr. Massel before he had completed his report. The Committee agreed with the
defence that these remarks reflect a lack of impartiality. It is clear Dr. Massel held very
strong impressions about Dr. RST before he interviewed him.
At times, Dr. Massel was argumentative during cross examination. As an example, he
refused to answer whether follow-up with a nurse would be appropriate, because he did
not understand what it means to be “followed by nurse.” He refused to answer if a
particular scenario was common, asking that the terms “rare” and “common” be defined.
In his criticism of the testing done at the KCC, he described it as no more accurate than if
one “flipped a coin.” The Committee found this to be unreasonably dismissive of the
testing facilities at KCC.
30
The Committee was also struck by his attitude towards the unavailability of the work
product he used to reach his opinion. He testified that he had taken the information in the
charts and entered all the facts into an Excel spreadsheet, which took him an
extraordinary amount of data entry time. He testified the computer with the files “died”
and the information was unrecoverable. While in every other area of Dr. Massel’s
testimony he was obsessive in detail and expected the same of others, he shrugged off
this loss as unimportant. This was incongruent with his expectations of others. It was not
the loss of the work product that was of concern the Committee as much as his
indifference to this loss. We also would have expected some further explanation as to
what he attempted to do to recover this information. In the result, this information was
not available to the defence or the Committee.
Dr. RST met with Dr. Massel for an interview during the investigation. Dr. RST testified
that the interview was shocking, disrespectful and shaming. The College in cross
examination wanted to play the audio of the interview to refute this allegation. The
Committee agreed to listen to the audio recording on its own time. The audio recording
was not admitted into evidence for the truth of its contents. The Committee found that the
tone of the interview was one best described as an academic preceptor aggressively
quizzing a medical student. Although the Committee did not find the tone of the
interview to be “shocking, disrespectful or shaming”, the Committee suspects that Dr.
RST was not used to being addressed in this manner and was probably expecting a more
collegial interview. There was in all likelihood a clash of expectations with respect to the
31
nature of this interview. The Committee did not find that the tape supported the defence
allegation of bias, nor did it undermine Dr. RST’s credibility. Although the Committee
does not agree with Dr. RST’s characterization of the interview, the Committee
understands that this may have been his perception. The Committee did not rely on the
audio tape in assessing the case.
While we do not doubt that Dr. Massel took his task seriously, we find he did not explore
areas that might well have influenced his judgment, such as the way charts were
formatted, the use of ancillary personal, the uniqueness of the practice and the use of
CCN Guidelines/Standards. He took a rigid approach rather than an objective overview.
In the result, the Committee found that Dr. Massel’s evidence lacked objectivity.
D. The Individual Cases
The College position is that Dr. RST failed to maintain the standard of practice of the
profession and is incompetent with respect to his care of 24 of the 25 patient charts
reviewed. For the reasons stated above, the Committee was not persuaded that this was
the case. The Committee does not intend to review all 24 cases in its reasons as many of
the criticisms can be lumped into the areas discussed above. There are three cases,
however, which deserve further comment.
(1) Patient AY
After trials of medical treatment, this 70 year old patient received the implantation of a
permanent pacemaker. He was an avid athlete, and his condition resulted in chronic
32
fatigue and inability to continue playing which was a major quality of life issue. After
lengthy discussion concerning options, and a variety of medical treatments, he was
referred for a pacemaker, which was approved and implanted by the cardiac staff surgeon
at the PRHC.
Dr. Massel testified that in his opinion, there was no indication for a pacemaker, and that
the fact the patient felt better and returned to playing squash and a full life, “had nothing
to do with his symptoms of fatigue because ….the pacemaker was never turned on” and it
had to be “a placebo effect”.
Dr. RST testified that the decision to implant the pacemaker was done after various
medication adjustments failed to provide the quality of life desired by the patient. The
pacemaker clinic nurse presented convincing evidence that the pacemaker was turned on
and she made multiple adjustments to the pacemaker in order for it to provide the
maximum benefit.
Dr. Fitchett testified that in this case, it was a clinical decision, based on the slow heart
rate shown on a Holter monitor, to insert a pace maker. He had no doubt that the pace
maker was working and that 74% of the time the pace maker was pacing the heart. Dr
Fitchett was of the opinion that while a difficult decision, the standard of the profession
had been met in this case and the outcome was positive for the patient.
33
Exhibit 20, the ACC/AHA Guidelines for implantation of cardiac pacemakers confirmed
that Patient AY met the criteria for Class 1 indications for Permanent Pacing. It also
demonstrated the adjustments performed in the Pacemaker Clinic were appropriate. The
Committee was convinced that the pacemaker was functional and resulted in a positive
outcome for the patient. The Committee concludes based on the evidence that the
allegation that Dr. RST failed to maintain the standard of practice of the profession with
respect to this patient is not proved.
(2) Patient AT
Dr. RST first saw this patient on referral from a local physician. Her presenting issue was
symptomatic episodes of tachycardia and, as noted by the referring physician, a grade 3/6
murmur.
When Dr. RST first saw Patient AT in November 2000, he performed a history and
physical examination. He noted the tachycardia history and ordered an echocardiogram
and Holter monitor. He noted that he did not hear a murmur at that time. The first
echocardiogram (January 2001) was read by Dr. Mackenzie who flagged some technical
issues and noted that the aortic valve was not well visualized. Dr. Mackenzie’s
impression was mild aortic stenosis with trivial associated regurgitation. Dr. Mackenzie
suggested a follow-up in one to two years. Dr. RST’s diagnostic list and summary noted
the first echocardiogram result and the need to repeat it in order to better define her
issues, using new equipment which would better delineate wall function. A repeat
echocardiogram was performed in February 2001 and read by Dr. RST. On this test, a
34
bicuspid aortic valve was detected with no outflow tract gradient noted. He did not make
a note of the bicuspid aortic value on the chart.
Patient AT was seen next by Dr. RST in March 2001. The consultant letter and chart
noted the better echocardiogram and a better ventricular function than noted on the
previous test, but no mention was made of the bicuspid valve seen by Dr. RST on his
interpretation of the test. The emphasis was on her symptomatic tachycardia.
Stress echo and exercise test were performed on a later date in March 2001. Dr. RST read
the tests and noted “other" structures are normal. The study demonstrated no ischemia.
When Patient AT was seen in April 2001, the new information in the consultant note
concentrated on her tachycardia and stated she did not have any significant structural
disease. No physical examination was performed on this follow-up visit. There is
continued referral to the first echocardiogram of poor quality and no mention of the
second echocardiogram. There is reference to dealing with the treatment of the
tachycardia with referral for possible ablation. Dr. RST reports she was symptomatic at
this visit. He again reported that that there was no significant structural disease.
Dr. RST next saw Patient AT in September 2001, and mentioned in his chart the Holter
monitor report which again showed rhythm abnormalities. At this time, there is a
documented discussion noting her reluctance to undergo ablation.
35
When next seen in December 2001, Patient AT had experienced two more significant
episodes of arrhythmia and was now willing to proceed to ablation. There had been visits
to the PRHC on each occasion of the episodes of tachycardia. There is no report of a
murmur being heard at either ER visits. She was referred to St. Michael’s Hospital in
Toronto where she was seen in January 2002. At that visit, it was noted that she had
normal heart sounds and no murmurs. They recommended ablation, apparently with a one
year waiting time to do the procedure.
When seen by Dr. RST in April 2002, Patient AT reported more episodes of tachycardia,
some with hospital visits. Dr. RST stated he would see if he could move up the planned
ablation.
In May 2002, a successful ablation was performed at St. Michael’s Hospital. There is no
note of any murmurs or other heart abnormalities in the consultant note from St.
Michael’s. In July 2002, when seen by Dr. RST post procedure, Patient AT was no longer
symptomatic.
On each of these consult chart notes, it indicates that the original tests results, which
would include both echocardiograms, were forwarded to the referring physician.
There was no further follow-up by Dr. RST until a referral letter from her family
physician in October 2006, noting that she was complaining of shortness of breath. There
were no further tachycardia episodes, but she did have a resting pulse of 110. Dr. RST
36
also notes a recent ER visit but that no echocardiogram was performed at that time. The
referral letter from the family physician makes no note of a murmur.
Dr. RST saw Patient AT in November 2006, at a satellite clinic in Cobourg. He has
testified that he did not have access to his electronic records at that time and consequently
did not have access to her previous 2001 echocardiogram. He noted that she was having
tachycardia episodes again with an irregular rhythm. He noted she has decreased exercise
tolerance and had been placed on bronchodilators and prednisone in the fall prior to this
visit. He performed a physical examination at this visit. Of significance, he noted high
pitched inspiratory and expiratory ronchi. He reported that heart sounds were normal. He
was able to hear lung sounds, knew she was on Prednisone and inhalant asthmatic
medication and while noting the treatment was not totally successful, he ordered an
echocardiogram and a referral to a respirologist. An ECG provided no additional
significant information. He arranged for a new echocardiogram and Holter monitor to “be
performed promptly.” His diagnostic list noted the decline in functional status in 2006
which significantly had not been responsive to therapy.
Patient AT was admitted to Northumberland Hospital in November 2006 and discharged
in December 2006. Northumberland notes she had a history of mild aortic stenosis and a
history of reactive airways and was also a smoker. The discharge note from
Northumberland makes no mention of any abnormal heart murmurs. Northumberland’s
consultant made the additional correct diagnosis of Congestive Heart Failure (CHF). She
responded quite nicely to therapeutic measures aimed at this CHF. She was considered
37
stabilized and without symptoms. A chest examination reported some wheezing. An echo
Doppler was arranged by the Northumberland Hospital physicians as an outpatient five
days later and she was encouraged to see her family physician and Dr. RST in "the near
future” for re-evaluation in view of her new symptoms.
There are no further chart notes. Unfortunately, Patient AT died three days post
discharge, having not yet been seen again by Dr. RST.
Dr. Massel, in looking at the 2001 data, concluded that there was a discrepancy in the two
echocardiograms. Dr. Massel interpreted the first echocardiogram as showing a high
abnormal trans aortic velocity, which Dr. RST considered on the second test to be
normal. Dr. Massel believes that Dr. RST should have had access to both tests when he
saw her in 2006. Dr. RST states that when he saw her in a peripheral clinic in 2006, he
did not have electronic access to records from the central laboratory. (He does now have
the ability to get electronic laboratory information.).
Dr. Massel notes that if a physical had been performed in any of the six visits in 2001, it
might have found the murmur. Although he states that management would not have
changed at that time in any case, due to the fact the valvular abnormality was
asymptomatic.
When seen in November 2006, Dr. RST again did not hear a murmur. Dr. Massel noted
that the patient was allotted only 15 minutes in a day on which 51 other patients were
38
scheduled. Dr. Massel concluded Dr. RST’s scheduling and the limited time afforded to
this patient resulted in a missed diagnosis.
Dr. Fitchett did not provide any opinion with respect to the Patient AT case.
Dr. RST admitted to making the charting error and omitting the diagnosis of aortic
valvular abnormality in his diagnostic list. He testified that he made the diagnosis on his
reading of the second echocardiogram, but omitted documenting it. His treatment
concentrated on the presenting and more prominent complaint, the symptomatic
tachycardia, which was treated appropriately at St. Michael’s Hospital. Following the
procedure, Patient AT was asymptomatic and there were no further follow-ups to Dr.
RST. The patient did well following her successful ablation procedure, and there was no
immediate set of symptoms to alert anyone to the missing diagnosis nor indication to
follow her for what might be expected to be progression of disease. We have no
information on how she was followed until the fateful series of events in 2006.
Dr. Massel was of the opinion that Dr. RST should have heard the murmur when he
conducted the physical examinations. While Dr. RST testified that he has reduced
hearing, especially when he has a cold, the fact that his hearing was sufficient to hear the
abnormal lung breathing sounds would lead us to conclude that he likely would have
heard a murmur if it was present. We also note that no murmur was detected by St.
Michael’s Hospital or Northumberland Hospital. Dr. Fitchett testified that in the later
stages of aortic valvular constriction, sounds my not be heard in any case.
39
Dr. Massel was of the opinion that since Dr. RST had 55 patients scheduled at the
peripheral clinic in November of 2016, he did not have time to properly diagnose her.
The Committee disagrees. As noted previously, Dr. RST and his staff testified that he
sees patients as long as necessary and that most of the patients he is seeing are follow-
ups. Dr. RST did conduct a history and a physical at this appointment, and ordered
appropriate testing based on his diagnosis at the time.
Northumberland Hospital did not make the diagnosis, discharged Patient AT considering
that she was much improved, and while wanting to see a echocardiogram in short order
considered her stable and able to await a test. Dr. RST did not see her again.
The Committee finds that it was an error not to document the aortic abnormality.
With the missing diagnosis not in the chart, her presentation and concentration on the
diagnosis of arrhythmia, with apparent clinical success in its treatment at St. Michael’s
Hospital, blinded physicians to the possibility of a quiescent process that should have
been followed, even during the years when it produced no symptoms.
There is a medical dictum “When you hear hoof beats, think horses, not zebras”. It
implies that when making a diagnosis, deal with the obvious, which in this case was the
arrhythmia. The missing test result and the unavailability of the two original
echocardiograms, which might have caused doubt as to the diagnosis, resulted in a
concentration on the presenting symptoms and the positive results in treating these. It
40
would appear to us that all the physicians involved, including Dr. RST, followed the
obvious diagnosis and prognosis in each visit with apparent success, further blinding
them to the missing diagnosis or specific reason to look for “zebras.”
The defence speculates that her test results might well have not been available to Dr. RST
due to misfiling as there are at least ten patients with the same name in the practice. We
consider that speculative and of no consequence except to note that if this were true, then
a deficit in organization needs to be addressed.
Dr. RST took responsibility stating that this was a mistake in charting, and events flowed
from this omission. He was frank in admitting that he “agreed with Dr. Massel that this is
not my standard of care.” He stated “I agree if I had not missed that she would be alive
today.” He also stated “I agree that my care and conduct did expose this patient to harm.”
Physicians make mistakes, but not every mistake is a failure to maintain the standard of
the profession. We do not hold physicians to a standard of perfection. Errors do occur.
Charting errors, in particular, are all too frequent. Dr. RST and the other physicians
involved in her care followed the presenting symptoms down the obvious trail, and never
received a strong enough signal to doubt the direction in which they were led. Treatment
on each occasion appeared to work well. Access to the echocardiograms in 2006, may
have caused Dr. RST to consider an alternative diagnosis, but the technology apparently
was not in place to allow this at the Cobourg clinic.
41
As regrettable as this outcome was, the Committee finds the allegation that Dr. RST
failed to maintain the standard of practice of the profession with respect to his care of
Patient AT is not proved.
(3) Patient AE
This 77 year old patient was seen by Dr. RST on referral from a cardiologist in May
2008. At that time he performed a full physical, described a systolic murmur, high blood
pressure, and an irregular heart rhythm. While Dr. Massel was critical of the lack of an
ECG on that date, it is noted that an echocardiogram had been performed prior to that
date.
In July 2008, an echo Doppler was performed. Dr. Massel was critical of the
methodology in doing this test. He called a colleague to confirm the number of cycles
required in an echocardiogram to assess function and as a result concluded there had been
too few to reach a proper diagnosis. The test, however, was not done or read by Dr. RST.
There was testimony by Dr. Hartleib that he performed the test and he described the
methodology used. Dr. Hartleib described the testing in Patient AE’s case, which showed
progression of her pathology and the number of cycles analyzed. His testimony
contradicted Dr. Massel’s assertion that only one cycle was used. Based on Dr. Hartleib’s
factual evidence, the Committee found that Dr. Massel’s concerns with respect to this
patient were unfounded.
42
The main issue was what transpired during the next visit in October, 2008. At that time
according to Dr. RST’s note, she stated she had no symptoms at that time. Based on that
information, Dr. RST did not consider it necessary to perform a physical examination. Dr.
Massel was sure that she would have described CHF related symptoms if given enough
time, which he felt was not possible given the volume of patients seen that day. Dr. RST
stated he afforded her enough time and that had she symptoms, she would have let him
know. On the subsequent visit a month later in November 2008, she was obviously
symptomatic, had a physical examination, and was treated appropriately for CHF. A
subsequent echocardiogram showed a significant change in her aortic and mitral valvular
function. Dr. Massel believes this had to be present prior to this test at the time of the
October visit, but Dr. Hartleib disagreed that the tests performed showed this. Dr. Fitchett
testified that rapid development of these changes is not uncommon. She was treated
appropriately thereafter.
Dr. Massel was also critical of the lack of a physical examination after her subsequent
successful valvular heart surgery, but she was seen post operatively in Peterborough by
the surgeon who performed the surgery and his conclusions are present in the chart.
While Dr. Massel is critical of Dr. RST’s description of her presenting murmur, Dr.
Fitchett noted it as “perfectly adequate”.
The fact she did not report any symptoms in October to Dr. RST was not seen by Dr.
Fitchett as uncommon. Dr. Massel, however, interpreted this as not taking a proper
history because of time constraints.
43
Based on the evidence of Drs. Fitchett, Hughes and Hartleib, the Committee finds that
this patient was treated appropriately. While blood pressure could have been taken at the
October visit, there was no indication that Patient AE was in any difficulty at that time.
We do not find that time constraints had any impact on Dr. RST’s investigation at this
time. When she did report symptoms at the subsequent visit, she was appropriately
treated and continues to do well according to the later chart notes.
CONCLUSIONS AND ANALYSIS
The local conditions required innovative solutions, which brought together the area
physicians, the hospital and specialists. We heard from the PRHC physicians that the
cooperation with the KCC has allowed the hospital to devote itself to other areas and
utilize the KCC for much of its cardiac testing and follow-up of ill patients. While Dr.
RST was instrumental in setting up the cardiac catheterization facilities at the PRHC, he
himself derives no benefit as he has no hospital practice. The synergy that allows
reasonably seamless care from family physician to the PRHC to the multiple clinics at
KCC, would appear to be uncommon but workable in an under serviced rural area with
an aged and unhealthy population.
It is the role of the College to prove the allegations on a balance of probabilities. As
described, the Committee gave less weight to Dr. Massel’s opinions for the reasons
stated. Based on the factual evidence and the opinion evidence of Dr. Fitchett, the
Committee concluded that there was insufficient evidence to find that Dr. RST failed to
maintain the standard or practice of the profession, or engaged in conduct that would be
44
reasonably be viewed by members of the profession as disgraceful, dishonorable or
unprofessional. There is also no basis for a finding of incompetence.
We do encourage Dr. RST and clinic administrators to review and monitor their record-
keeping procedures to ensure that all records are complete and that typographical errors
or omissions are not perpetuated in future notes. We would also suggest that some
consideration be given to whether the work of the nurses who are delegated a great deal
of the cardiac workload could be better documented.
45
DISSENT AND REASONS FOR DISSENT
The Discipline Committee (the “Committee”) of the College of Physicians and Surgeons
of Ontario heard this matter at Toronto on February 9 to 12, 2016; March 7 to 11, 2016;
April 11, 12, 13, and 15, 2016; and April 25, 2016. At the conclusion of the hearing, the
Committee reserved its finding.
ALLEGATIONS
The Notice of Hearing alleged that Dr. RST committed an act of professional
misconduct:
1. under paragraph 1(1)2 of Ontario Regulation 856/93 made under the Medicine
Act, 1991 (“O. Reg. 856/93”), in that he has failed to maintain the standard of
practice of the profession; and
2. under paragraph 1(1)33 of O. Reg. 856/93, in that he has engaged in conduct or an
act or omission relevant to the practice of medicine that, having regard to all the
circumstances, would reasonably be regarded by members as disgraceful,
dishonourable or unprofessional.
The Notice of Hearing also alleged that Dr. RST is incompetent as defined by subsection
52(1) of the Health Professions Procedural Code (the “Code”), which is schedule 2 to the
Regulated Health Professions Act, 1991.
RESPONSE TO ALLEGATIONS
Dr. RST denied the allegations in the Notice of Hearing.
DISSENT
I have read the Decision and Reasons for Decision of the Committee and do not agree
with the findings in the areas discussed below.
46
(i) The Case of Patient AT
In the case of Patient AT, the evidence given by Dr. RST makes it clear that he fell below
standard of practice of the profession in providing care for her. He admitted that he made
a mistake in her case in that he omitted reference to an abnormality in her bicuspid aortic
valve in his chart and consult report. He further admitted to not ordering a follow up with
an echocardiogram. He also admitted that he failed to diagnose her with a heart murmur
even after her family physician had referred her to him with a note indicating the
presence of a heart murmur. Dr. RST claimed that at the time, he had some hearing
impairment and was not using any hearing aids, which could have been a factor in this
case. The first echocardiogram suggested mild/moderate aortic stenosis. Dr. RST
admitted, as found by Dr. Massel, that the second echocardiogram done on in February of
2001, diagnosed the aortic valve as being bicuspid. Dr. RST, however, failed to comment
on the severity of any aortic stenosis apart from the trans-aortic flow velocity
measurement which was described as normal. Those specific details LOVT velocity and
trans-aortic velocity were not included in the report and there was no comment on the
previous gradient of 27 mmttg and how this might have been resolved. Dr. RST also
agreed in his testimony that the stress echo in March of 2001did not comment on
abnormal aortic valve pathology. He admitted in cross examination that this patient
required surveillance for aortic valve. The November 2006 office note referenced a
previous echocardiogram but did not mention aortic valve pathology.
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Dr. RST acknowledged that he had ample opportunities to conduct further physical
examinations but did not do so. No physical examinations of Patient AT were recorded
on six of the eight office visits.
Dr. Massel testified that in the physical examinations done in November 2000 and
November 2006, there was no difference in blood pressure and the heart rate recorded in
the consult reports. There were opportunities to conduct further echocardiograms but they
were not performed. Given her past history, it was surprising that no additional physical
examinations or echocardiogarms were done. Dr. RST accepted that on the November
2006 visit, the diagnosis of aortic stenosis was not mentioned in the consult report.
Dr. RST agreed that had he properly cared for this patient, she would have been alive
today. While he acknowledged that it was up to the Committee to judge if he fell below
the standard, he did admit the he made an error in charting and in that perhaps showed
lack of knowledge, skills or judgment.
I find Dr. RST to be credible and reliable as he admitted to a number of failings in
providing care to this patient. Based on his own testimony and admission, the College
has proved the allegation that he failed to maintain the standard of practice of the
profession with respect to this patient.
(ii) Patient Volume
Dr. RST was challenged on the number of patients he sees on a daily basis. Dr. RST
admitted that he saw, on the average, 380 patients a week and on the average between 76-
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80 patients a day. He also acknowledged that he saw many patients in less than a minute.
While there is no minimum time span laid down as a standard as regards how many
patients a physician can see in a day or hour, Dr. Massel testified that a cardiologist in a
community environment could only see one third or one quarter of the number of patients
seen by this physician in order to provide a reasonable standard of care. Dr. RST testified
that in most cases, these were follow-up visits where he only had to adjust the
medication, etc. His testimony is that he spends “less than a minute” and in many cases
he is able to assess the patient, as the patient “walks through the door”. In reality, it is
simply not possible to see a patient and provide adequate care in “less than a minute”.
Whether one is a family physician or a specialist, one cannot assess a patient, determine
whether a physical examination is necessary, read the chart and tests, review the progress
reports, discuss the concerns with a patient and write a follow up consultation report or
chart the progress in less than a “minute”.
Based on his own testimony, the College has proved that Dr. RST was seeing too many
patients and that this was a failure to maintain the standard of practice of the profession.