A. GeraRd Quinlan Appellant And: The College of Physicians v. Surgeons of Newfoundland and Labrador, 2019 NLSC 27

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Quinlan v. The College of Physicians and Surgeons of Newfoundland and Labrador , 2019 NLSC 27 Date : February 5, 2019 Docket : 201601G4928 Between: A. GeraRd Quinlan Appellant And: The College of Physicians and Surgeons of Newfoundland and Labrador Respondent And: Catherine Mann Intervenor Before: Justice Vikas Khaladkar On Appeal From: A Decision of Complaints Authorization Committee of The College of Physicians and Surgeons of Newfoundland and Labrador pursuant to section 44(10) of the Medical Act, 2011 , S.N.L. 2011, c.

M-4.02 , dated the 22nd day July of 2016. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 28, 2019

Summary: The Appellant appeals the decision of the Complaints Authorization Committee of The College of Physicians and Surgeons of Newfoundland and Labrador (“the Committee”) dismissing his complaint against Dr. Catherine Mann. There are no grounds for overturning the decision of the Committee, which is reasonable and entitled to deference. The appeal is dismissed. There shall be no order as to costs.

Appearances: A. Gerard Quinlan Appearing on his own behalf Ruth E. Trask Appearing on behalf of the Respondent Peter N. Browne, Q.C. Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Aylward v. The Law Society of Newfoundland and Labrador , 2017 NLTD(G) 159; Dunsmuir v. New Brunswick , 2008 SCC 9 STATUTES CONSIDERED: Medical Act, 2011 , S.N.L. 2011, c. M-4.02 ; Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] Mr. Joseph Quinlan was not feeling well.

His primary complaint was that he was suffering from a shortness of breath upon exertion or when bending over to tie his shoes. This symptom was ongoing and giving him some difficulty for at least a year prior to surgical procedure conducted by Dr. Mann, the Intervenor in this matter. [ 2 ] Mr. Quinlan had long-term psychiatric issues, he was a heavy smoker and a drinker. He was taking many medications. He had type 2 diabetes mellitus, hyperlipidemia, vitamin B-12 deficiency and coronary artery disease.

He had a hip replacement in 1999, removal of a benign L4/L5 extradural tumour causing spinal cord compression in 2005. He also suffered from seizures attributed to a traumatic brain injury for which craniotomy had been required. [ 3 ] Dr. Major, Mr. Quinlan’s family physician, was concerned that Mr. Quinlan might have cancer. In February, 2012 a computerized tomography (“CT”) scan was conducted. The radiologist’s report detailed the existence of a right sided pleural effusion and he could not rule out cancer – although he stated that there were no definite signs of malignancy. Dr. Major referred Mr.

Quinlan to Dr. Mann to review the cause for his persistent pleural effusion. A pleural effusion is a build-up of fluid around the lung. [ 4 ] While Mr. Quinlan was a 73-year old man, it was important to determine whether or not he was suffering from cancer. Given that he was a heavy smoker and drinker, it seemed that further investigation was warranted. [ 5 ] Dr. Mann carried out a bronchoscopy and a pleural aspiration to get a better picture of what was going on. A bronchoscopy is a look down a person’s windpipe and airways of the lungs with a camera located at the end of a thin, flexible tube.

It allows the investigating doctor to take a tissue sample in order to determine whether any cancer exists. A pleural aspiration involves the removal of fluid build-up from around the lung using a hypodermic needle. [ 6 ] These procedures showed no evidence of malignancy, but there was serious fluid buildup. A litre of fluid was removed by Dr. Mann and Mr. Quinlan felt a bit better after she had done so. [ 7 ] Since no useful information was derived from the bronchoscopy and the pleural aspiration, Dr.

Mann resolved to perform a thoracoscopy and, if that did not provide appropriate results, a thoracotomy and decortication were required to obtain better samples and provide breathing relief. A thoracotomy requires an incision to the chest in order to allow the surgeon a better view of the affected lung area. Decortication involves the removal of a portion of the covering of the lung – in order to allow the patient’s lung to properly expand. Dr. Mann advised Dr. Major that a thoracotomy might be the only way to rule out the presence of a malignant cancer. [ 8 ] Dr.

Mann advised The College of Physicians and Surgeons of Newfoundland and Labrador (“the College”) that a thoracoscopy and/or thoracotomy under general anesthesia, pleural biopsy and lung biopsy were discussed with Mr. Quinlan and his sister, along with the risks and benefits. The potential for withdrawal symptoms was also discussed and Mr. Quinlan was advised that

this could be treated post-operatively. Mr. Quinlan’s sister was present during the entire interview. Mr. Quinlan executed the consent for the involved surgery in his sister’s presence. [ 9 ] The Appellant says that the risks/benefits of the procedures were not discussed with Mr. Quinlan according to the sister who was present. [ 10 ] There was a detailed record of Mr. Quinlan’s interaction with the nurse in the pre-admission clinic as well as the anesthetist. All parties knew what surgical procedures were to be performed. Mr.

Quinlan demonstrated a good understanding regarding his own condition and the impending surgery. Both the pre-admission clinic nurse and the anesthetist recorded that Mr. Quinlan drank to excess. The pre-admission nurse’s notes indicate that Mr. Quinlan drank 2 – 2½ dozen beer per day. The Appellant took exception to this statement, but it is in the record.

Whether he drank that much beer daily or something less, the fact remains that three different health care professionals at the hospital saw fit to make note of his drinking (as did his own family physician), and a protocol was put in place to ensure that there would be no adverse effects from withdrawal symptoms subsequent to the surgery. [ 11 ] Mr. Quinlan did not have a good outcome. After the surgery on April 25, 2012 Mr. Quinlan remained in the surgical special care unit until April 30, 2012 – at which time he was transferred to the intensive care unit under sedation and full ventilator support was required.

The ventilator was removed on May 8, 2012 but had to be reinstated for respiratory failure on May 9, 2012. Finally, a tracheotomy was performed on May 15. 2012. Eventually Mr. Quinlan was weaned from the ventilator and transferred to the surgical ward on May 28, 2012. From there he was transferred to the Miller Centre on June 28, 2012 for rehabilitation. He was discharged from the Miller Centre on July 24, 2018. [ 12 ] On August 9, 2012 Mr. Quinlan was reportedly eating well, gaining weight and had experienced a complete resolution of his shortness of breath. At that time Dr.

Mann evaluated his progress as satisfactory. APPELLANT’S SUBMISSIONS TO THE COMMITTEE [ 13 ] The Appellant stated that Mr. Quinlan and his sister, Betty, were told by Dr. Mann, prior to the surgery, that there was nothing for them to worry about. They were told that Mr. Quinlan would be going to the hospital for minor surgery, for which he would be in the hospital for three to four days. [ 14 ] The Appellant did not believe that Mr. Quinlan’s overall health had been taken into consideration prior to the operation, and that this had resulted in numerous complications that might have been avoided.

The Appellant stated that he did not believe that his brother or sister had been properly informed of all the medical options or the risks of surgery. [ 15 ] The Appellant stated that the complications Mr. Quinlan suffered could have been avoided if Mr. Quinlan was better prepared for surgery. He felt that Mr. Quinlan should have been admitted to hospital a week in advance prior to conducting the surgery – in order to ensure that he was stabilized properly pre-operatively. DR. MANN’S SUBMISSIONS TO THE COMMITTEE [ 16 ] Dr. Mann regretted that Mr.

Quinlan had a difficult outcome, but she stated that it was not on account of any errors of judgment or technical procedures on her part or on the part of any other health care professionals involved in Mr. Quinlan’s care. FINDINGS OF THE COMMITTEE [ 17 ] Mr. Quinlan’s smoking history was a risk factor for lung cancer. For several months before he saw Dr. Mann, Mr. Quinlan had problems due to persistent build-up of fluid on his lungs that was causing a shortness of breath. The Committee held it was reasonable that Dr. Mann would attempt to establish a definite diagnosis. Dr.

Major agreed that this was an appropriate course of action. The Committee found that the approach taken by Dr. Mann – starting with the less invasive procedures of bronchoscopy and pleural aspiration – was appropriate. [ 18 ] Since Dr. Mann’s first approach did not yield conclusive results, she considered the need for exploratory surgery. She again attempted to use less invasive means first, namely the thoracoscopy before the thoracotomy. The Committee decided this was good medical practice. [ 19 ] The Committee accepted Dr. Mann’s correspondence that Mr.

Quinlan expressed a desire to find an explanation for, and resolution to, his shortness of breath symptoms. [ 20 ] The Committee ruled that Dr. Mann’s approach was systematic and methodical. It was not rash, without consideration or ill advised. The surgery was necessary to rule out any malignancy and, as well, for the purpose of relieving Mr. Quinlan’s problems with shortness of breath. [ 21 ] The Committee carefully considered the Appellant’s stated concern that Mr.

Quinlan had not been adequately advised about the procedure, that he had not been properly prepared for surgery and that adequate consent had not been obtained. The Committee found that there was adequate information in the medical record from multiple medical professionals as to Mr. Quinlan’s consent to, and understanding of, the procedure. [ 22 ] The Committee found that Dr. Mann did explain to Mr. Quinlan and his sister that there was a fairly high chance that the less invasive procedure of thoracoscopy might be unhelpful.

If this happened, the procedure required would have to be a thoracotomy and decortication. The Committee found that Dr. Mann discussed this with Mr. Quinlan in the presence of his sister. It was reflected in the medical record and, in particular, on the signed consent form. [ 23 ] The Committee made note of the fact that Mr. Quinlan and his sister were seen by both the pre-admission nurse and the anesthetist. Both of these health care professionals indicated in the record that Mr. Quinlan had a good understanding of his condition

and impending surgery. Neither of these health care professionals had any concerns about Mr. Quinlan’s suitability for surgery at that time. The Committee noted that both of these assessments were performed independent of Dr. Mann. [ 24 ] The Committee disagreed that there was any need for a lengthy pre-operative hospital stay. The Committee stated that it was both unnecessary and inappropriate. The Committee stated that it would be very unusual given that Mr. Quinlan was relatively well prior to his surgery. Furthermore, the Committee noted that Dr. Mann was aware of Mr.

Quinlan’s pre-existing medical conditions and had recorded that he would require very careful post-operative observation – including withdrawal from alcohol and nicotine. [ 25 ] The Committee found, based upon the evidence before it, that there was no reasonable basis to believe that Mr. Quinlan was unaware of the risks and the potential for complications arising from the thoracic surgery performed by Dr. Mann. Although the Appellant voiced concerns to the Committee relating to lack of consent and, again, did so when presenting his submissions to this Court, the Committee preferred the evidence of Dr.

Mann and the documentary evidence prepared by the pre-operative nurse and the anesthetist on this point. This the Committee is entitled to do. [ 26 ] The Committee found that Dr. Mann adequately managed Mr. Quinlan’s post-operative condition by being responsive to his medical history and potential complications. [ 27 ] She ordered the administration of appropriate protocols in terms of his alcohol and nicotine addictions. She ensured that chest physiotherapy and bronchodilators were administered in view of his smoking history, and ensured that there was adequate medication for pain control.

The Committee found that Dr. Mann did not ignore her patient’s needs after the surgery was completed. [ 28 ] Dr. Mann admittedly advised Mr. Quinlan and his family that his stay in hospital would only be a couple of days. The Committee found this to be a fact. The Committee found that it is not unreasonable or problematic to state that, in the ordinary course, an individual could be expected to be discharged within a particular period of time. The fact that this did not bear out for Mr.

Quinlan because of the complications he suffered was found, by the Committee, to not be unreasonable. [ 29 ] By August of 2012, Mr. Quinlan was in better health. He was no longer in the hospital, had experienced a reduction in his symptoms, was eating better and gaining weight. THE APPELLANT’S SUBMISSIONS [ 30 ] The Appellant stated during his submissions that Mr. Quinlan deteriorated after he was released from the Miller Centre, was required to take up residence in a nursing home and, eventually, passed away. The Appellant lays all of the blame for Mr. Quinlan’s poor health at the feet of Dr.

Mann and says that but for the surgical procedure she performed Mr. Quinlan would not have died. [ 31 ] The Appellant took exception to his, and his family’s, inability to make representations to the Committee. Although the Appellant engaged in correspondence with the Committee and put his position forward, he argued that he and the Quinlan family members had been advised by Dr. Young, the Registrar of the College, that they would conduct a full investigation into the matter.

This did not happen, in the Appellant’s estimation, because not one member of the Quinlan family was called upon to give evidence or statements. [ 32 ] The Appellant took the position that whatever happened at the hospital was covered up by the doctors and the medical staff of St. Clare’s Mercy Hospital. THE RESPONDENT’S SUBMISSIONS [ 33 ] The Respondent says that on March 18, 2016 the Appellant was advised by the Committee as follows: The Committee is not prepared to permit you or your family members an audience before the Committee to make verbal submissions.

It is outside the mandate and general practice of the Committee to accept in-person submissions from complainants (or others). If the matter is referred for a hearing in accordance with the Medical Act , you or your lawyer will be able to make submissions at the hearing. [ 34 ] The role of the Complaints Authorization Committee under the Medical Act is similar to the role of the Complaints Authorization Committee under the Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 . The role of the Committee under the Law Society Act was discussed by Dymond, J. in Aylward v.

The Law Society of Newfoundland and Labrador , 2017 NLTD(G) 159 at paragraph 25, where he said: 25. In the present appeal it is important to make it clear that Mr. Aylward is the complainant and not the respondent. Once a complaint is laid the CAC is the body that decides how to proceed and what procedures are to be followed. The CAC is given a very wide discretion as to how the investigation is to be carried out, if witnesses are to be called or whether only a written record will suffice.

There is reason for this and the reason is that these complaints authorization committees are set up to deal with issues that could involve minor misconduct or things as serious as the misappropriation of the public’s money or any range of professional misconduct toward the public or a fellow solicitor.

As such, the process is meant to be flexible, allowing the Committee to investigate as thoroughly as it deems necessary depending on the nature of the complaint. [ 35 ] The Respondent says the Committee knew about the Appellant’s desire to attend but it was reasonable, under the circumstances, for them to refuse to do so. [ 36 ] The Respondent says that if the Quinlan family had been allowed to attend, the only thing that might have been brought up was the adequacy of the consent that was given. [ 37 ] The Respondent says that the Committee addressed the matter of consent and made mention of the fact that multiple medical professionals discussed the procedure with Mr.

Quinlan. The record showed, for example, that the pre-admission nurse recorded that Mr. Quinlan had a good understanding of the procedure that was to be undertaken.

[ 38 ] The Respondent submitted that the Committee had before it an extensive record. [ 39 ] The Respondent says that the Committee must find gross negligence or a reckless disregard for the patient’s well-being in order to determine that there was behaviour worthy of sanction requiring a full hearing before the Discipline Committee of the College. [ 40 ] The Respondent says that Dr. Mann’s treatment of Mr. Quinlan did not fit into that category, and that the Committee was correct in concluding that the complaint had no basis for further action to be considered. THE INTERVENOR’S SUBMISSIONS [ 41 ] Dr.

Mann was allowed to intervene and make submissions. [ 42 ] The Intervenor supported the position of the Respondent. [ 43 ] The Intervenor says that the decision of the Committee ought not to be disturbed. She submits the standard the Court ought to apply to the Committee’s decision is reasonableness. She says the type of legislation the Committee operates under is not unique to the medical profession. All self-regulating professions have similar legislation.

Members of the public are appointed to sit on disciplinary committees in order to ensure that the public is properly represented by persons who are at arm’s length to the profession. [ 44 ] The reasonable standard of review appreciates the expertise of the persons sitting on the Committee. The decisions of the Committee should be considered with deference for that level of expertise. [ 45 ] The Intervenor noted that in addition to the documentary evidence of alcohol abuse in the notes of the pre-admission nurse and the anesthetist, there were also the journal entries made by his personal physician, Dr.

Major – who made several references to Mr. Quinlan drinking alcohol on a regular basis, and his unsuccessful attempts at getting Mr. Quinlan to stop drinking alcohol. [ 46 ] The Intervenor noted that Mr. Quinlan was having breathing problems. It was necessary to rule out cancer. The course of exploration that was undertaken was reasonable. [ 47 ] The Intervenor noted that no one can predict what an outcome following a medical procedure is going to be. There are always a range of outcomes and all of the possibilities were considered in this case.

However, she argued that it was not necessary to scare the patient by seizing on the most serious potential outcomes. [ 48 ] The Intervenor agreed that the standard of review is reasonableness and urged the Court to uphold the Committee’s decision. ANALYSIS [ 49 ] Mr. Quinlan made an allegation under section 42(1) of the Medical Act . It was referred by the Registrar of the College, under section 43(2) of the Medical Act to the Complaints Authorization Committee. [ 50 ] The powers of the Complaints Authorization Committee are set out in

section 44 of the Medical Act . Pursuant to that section, the Committee appointed an investigator, invited submissions from the complainant and the respondent, reviewed the patient’s medical file and concluded that the respondent had not engaged in conduct deserving of sanction and dismissed the allegation. [ 51 ] A complainant whose allegation is dismissed may file a notice of appeal with the Court. [ 52 ] The key decision of the Supreme Court of Canada in relation to the review of the decisions of administrative tribunals is Dunsmuir v. New Brunswick , 2008 SCC 9 . At paragraph 47 the Court said: 47.

Reasonableness is a deferential standard animated by the principle that underlies the development of two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 53 ] Mr. Quinlan was a 73-year old man who, despite the Appellant’s urgings to the contrary, was not in the best of health. His complaints with respect to shortness of breath pre-dated his admission to hospital in 2012 by at least a year. He was a smoker and he was a drinker.

His drinking was significant enough to cause his personal physician, Dr. Major, to note it in his chart on a number of occasions. Dr. Major admonished Mr. Quinlan to stop drinking as it was affecting his health. Mr. Quinlan did not do so. [ 54 ] Mr. Quinlan was receiving Temazepam, Vitamin B-12, Vitamin D, Simvastatin, Glyburide, Iron, Dilantin, Metformin, Ventafaxine, Olanzapine, Toloxin, Coversyl, Metoprolol and Slow K. [ 55 ] Mr.

Quinlan was suffering from Hypertension, Chronic Obstructive Pulmonary Disease, Pleural Effusion, psychosis, seizures, traumatic brain injury suffered many years previously, seizure disorder, Osteoarthritis and type 2 diabetes mellitus. He had had surgery on his hips. In addition, he smoked and he drank. He had fluid build-up on his lungs and his medical team was concerned that he might have cancer because of his symptoms and because he was a prime candidate. [ 56 ] The Committee thoroughly reviewed Mr. Quinlan’s medical files and all of the hospital records concerning his admission and

treatment. They invited comments from Dr. Mann and, upon receipt, they shared her responses with the Appellant and invited him to respond. All such responses from the Appellant were taken into account in arriving at its decision. The concerns expressed by the Appellant were specifically dealt with by the Committee in the course of making its decision. The Committee relied upon not only the comments provided by Dr. Mann but, as well, the evidence afforded by the contemporaneous notes made by the pre-admission nurse, the anesthetist and Mr. Quinlan’s family physicians.

Each of these persons was completely independent of the complaint and, in recording facts as they did, would have no reason for fabricating evidence. Their notations are factual, reliable and dependable and it was reasonable for the Committee to depend upon them as they did. [ 57 ] I find that the Committee conducted a careful and thorough analysis, and can find no deficit in their reasoning that would justify my setting aside the decision.

It is well within the range of reasonable outcomes that one might anticipate having regard to all of the material that was before the Committee. [ 58 ] Under the circumstances, I find that the Committee’s decision was justified by the record, transparent and intelligible. [ 59 ] It is unfortunate that Mr. Quinlan did not have the optimal outcome as a result of the procedure that Dr. Mann carried out. However, I find that Dr.

Mann did discuss with him the possibility that, once the procedure got underway, she might have to employ more invasive measures, namely a thoracotomy and decortication, if the less invasive procedure of thoracoscopy was unsuccessful. [ 60 ] As was stated by counsel for the Respondent, “we prepare for the worst outcomes, but hope for the best outcomes”. Every procedure carries its attendant risks. Every medication has its potential side-effects. But in the absence of any behaviour on the part of Dr.

Mann that could be characterized as grossly negligent or as reckless disregard, the Committee acted within its authority in dismissing the allegation. [ 61 ] I find that the Committee’s decision was within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. For that reason, I hereby dismiss the appeal. [ 62 ] Counsel for both the Respondent and the Intervenor specifically indicated that they were not seeking costs. Accordingly, each party shall bear his/her/its own costs of the appeal. _______________________________ VIKAS KHALADKAR Justice