Loss of the notes by College of Physicians and Surgeons not reason to stay proceedings: tribunal

Disciplinary proceedings initiated for alleged medical billing fraud

Loss of the notes by College of Physicians and Surgeons not reason to stay proceedings: tribunal

The Ontario Physicians and Surgeons Discipline Tribunal (OPSDT) has refused to stay disciplinary proceedings initiated against a doctor for his alleged involvement in medical billing fraud.

In College of Physicians and Surgeons of Ontario v. Benjamin, the defendant had been practising family medicine and currently maintains a walk-in clinic. The Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (CPSO) referred allegations to the OPSDT that the defendant committed acts constituting professional misconduct.

The four investigations leading to the allegations began with a complaint from an insurance company, two complaints from the Ministry of Health and Long-Term Care, and a complaint from the Ministry of Children, Community and Social Services.

The allegations include that the defendant billed for services not rendered, medically necessary or clinically indicated, created false or inaccurate records, failed to disclose information to the CPSO about a financial arrangement with a third-party supplier to whom he made referrals, and had a conflict of interest when he referred his patients to the third-party supplier.

The defendant moved to stay the allegations or quash the referral to the OPSDT, alleging that the loss or destruction of important evidence during the investigations justified the extraordinary remedy of a stay. He also alleged that unexplained delays in the investigation process caused him serious prejudice and warranted a stay of proceedings.

In dismissing the motion, the OPSDT ruled that the defendant failed to establish that a stay of proceedings is justified.

The defendant argued that that the failure to properly retain and provide notes of the “door knock” interviews of the defendant’s patients to the committee, when it considered referral of these matters to the OPSDT, amounted to serious misconduct justifying a stay of proceedings. The OPST disagreed.

According to OPSDT, the defendant had not met the high bar for a stay of proceedings on the basis of the loss of the notes.

“The loss of the notes of the door knock interviews is undoubtedly troubling,” the OPSDT wrote. “No one disputes that they should have been retained in the investigation files and that their loss means that some relevant evidence is no longer available.”

The OPSDT also rejected the defendant’s claim that since the CPSO gave no explanation for the loss of the notes, it should be assumed that they were deliberately destroyed as part of an attempt to build a case against him.

“Having rejected the claim that the notes were deliberately destroyed, the loss of the notes does not by itself undermine the integrity of the [CPSO] or the [OPSDT] processes in a manner that will be manifested, perpetuated, or aggravated through a hearing of the allegations,” the OPSDT wrote. “It falls far short of the type of misconduct that would justify a stay of proceedings.”

As to the unexplained delays, the OPSDT found that they were not inordinate given the number of investigations and their complexity.

“The [CPSO] received the first complaint about four years before its referral to a hearing, but in the intervening time, three other complaints were made,” the OPSDT wrote. “The [CPSO] decided to proceed with them together. The [defendant] has not asked that they be severed.”

Even if the delays turned out to be inordinate, the OPSDT said that a stay of proceedings would not be justified since it could be granted only where an unacceptable delay results in significant prejudice to a respondent’s ability to have a fair hearing. Thus, it is not enough to simply rely on the passage of time.

“Here, the [defendant] relies essentially on the passage of time,” the OPSDT wrote. “This falls short of proof of significant prejudice to [his] ability to defend himself against the allegations at a hearing.”

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