Ontario’s Divisional Court supports the revocation of a physician’s privileges where the physician’s conduct undermined hospital policies and processes

7 septembre 2022 | Lisa Spiegel

( Disponible en anglais seulement )

On July 18, 2022, the Divisional Court dismissed the appeal of a physician (« Dr. K »)[1]. Dr. K’s appeal was from the Health Professions Appeal and Review Board (HPARB) decision, which confirmed the Windsor Regional Hospital (the “Hospital”) Board of Director’s decision to revoke Dr. K’s privileges and to not to re-appoint him to the Hospital’s professional staff.

In the earlier decision, the HPARB found that Dr. K’s behavior, actions, and conduct justified the revocation and suspension of his privileges and that as a result of his behavior, that Dr. K did not meet the qualifications and criteria for re-appointment.

Dr. K is a physician with a specialization in nephrology. The conduct at issue pertained to Dr. K’s resistance to complying with the Hospital’s “new approach to the treatment of patients preparing for dialysis,” an approach that  had been approved by both the Hospital’s Medical Advisory Committee (MAC) and its Board of Directors. Notwithstanding the new approach and policy, Dr. K continued to treat his patients based on the previous model of care. The hospital found his actions to be “disruptive and contrary to policy he was required to follow as a member of the hospital’s professional staff.”

On February 13, 2018, the MAC held a Special Meeting to consider whether it should make a recommendation to the Hospital’s Board of Directors affecting Dr. K’s privileges. The MAC recommended that Dr. K’s privileges be revoked and if the Board of Directors had not completed its consideration of the recommendation by May 31, 2018, his privileges be suspended as of June 1, 2018 on an “immediate mid-term basis” in accordance with its bylaws. The reasons for the recommendation and suspension included concerns that Dr. K’s conduct “extended beyond a measured and appropriate response regarding a difference of philosophy to an aggressive and disruptive attack on an operational change which undermined the ability of the staff of the hospital to provide the care its patients required and deserved.”

The Board of the Hospital had not completed its consideration of the MAC’s recommendation by May 31, 2018. As such, Dr. K’s privileges were suspended on June 1, 2018.

After a hearing before the Hospital Board, in which Dr. K challenged the MAC’s recommendation, the Board adopted the MAC’s recommendation. The Board further directed that Dr. K not be re-appointed to the Professional Staff of the Hospital. The Board did not comment on the preferred or appropriate model of care. Rather, the Board’s decision focused on Dr. K’s behavior and response to the hospital’s chosen model, noting that the MAC “provided significant evidence that demonstrates that Dr. K has consistently resisted, obstructed, undermined and disrupted the implementation and operation of the Renal Program under the new Model of Care.”

Dr. K appealed the Hospital Board’s decision to the HPARB. After a 37 day hearing, HPARB found that Dr. K’s behavior, actions and conduct justified the revoking and suspension of his privileges, and that as a result of those actions that he did not meet the criteria for re-appointment to the Professional Staff of the Hospital.

In writing for the Divisional Court, Justice Lederer confirmed that there was evidence demonstrating that Dr. K acted to disrupt and undermine the implementation and operation of renal care being carried out pursuant to the new policy and that such evidence is “sufficient to explain, support and justify the revocation of the privileges of [Dr. K] at the Windsor Regional Hospital…”

As noted by the Divisional Court, “a physician does not have a right to hospital privileges, a doctor has to apply for consideration as to whether she or he will be granted privileges. The Public Hospitals Act establishes the framework for the granting, alteration and renewal of physician privileges at a hospital:

…through the PHA structure, the physician remains accountable to the hospital (e.g. to a Chief or Head of a physician’s department, the MAC and the hospital’s board of Directors) for compliance with a hospital’s quality of care requirements, by-laws, policies and rules of conduct.

As further noted by the Divisional Court:

the system of providing health care is an integrated one, where the hospital, its staff and doctors work together to provide a high quality and hopefully efficient and economically feasible level of care. If a doctor is unable or unwilling to work within and respect the policies and programs properly approved and implemented by the hospital the choice is not to undermine the service being offered. It is to find another way or place to practice.

Miller Thomson’s Health Industry lawyers are available to assist with any questions or matters pertaining to privileging/credentialing of physicians and other regulated health professionals, and with regulatory College complaints.

[1] 2022 ONSC 4016

Avis de non-responsabilité

Cette publication est fournie à titre informatif uniquement. Elle peut contenir des éléments provenant d'autres sources et nous ne garantissons pas son exactitude. Cette publication n'est ni un avis ni un conseil juridique.

Miller Thomson S.E.N.C.R.L., s.r.l. utilise vos coordonnées dans le but de vous envoyer des communications électroniques portant sur des questions juridiques, des séminaires ou des événements susceptibles de vous intéresser. Si vous avez des questions concernant nos pratiques d'information ou nos obligations en vertu de la Loi canadienne anti-pourriel, veuillez faire parvenir un courriel à privacy@millerthomson.com.

© 2023 Miller Thomson S.E.N.C.R.L., s.r.l. Cette publication peut être reproduite et distribuée intégralement sous réserve qu'aucune modification n'y soit apportée, que ce soit dans sa forme ou son contenu. Toute autre forme de reproduction ou de distribution nécessite le consentement écrit préalable de Miller Thomson S.E.N.C.R.L., s.r.l. qui peut être obtenu en faisant parvenir un courriel à newsletters@millerthomson.com.