) ) NARENDRA ARMOGAN, MD Applicant – v. –, 2013 ONSC 3095

CITATION : Armogan v. Health Professions Appeal and Review Board, 2013 ONSC 3095 DIVISIONAL COURT FILE NO.: 26/12 DATE: 20130527 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERMAN, SWINTON AND SACHS JJ. BETWEEN: ) ) NARENDRA ARMOGAN, MD Applicant – and – HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and HAROLD P. PICCININNI, by the executors appointed to his last will and testament dated December 7, 2006, and THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondents )) )) )) )) )))))))) Michael B. Fraleigh and Meagan Swan , for the Applicant Steven G.

Bosnick , for the Respondent, Health Professions Appeal and Review Board Jessica Amey, for the Respondent, the College of Physicians and Surgeons of Ontario ) ) ) HEARD at Toronto: May 27, 2013 SWINTON J. (ORALLY) [ 1 ] The applicant seeks judicial review of a decision of the Health Professions Appeal and Review Board (“the Board”) dated June 3, 2011, which upheld the decision of the Inquiries Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (“the College”) dated September 13, 2010. The ICRC decided not to refer a patient’s complaint to discipline.

Rather, it decided to caution the applicant and to require that he take an educational program on patient communication. The decision taken was remedial only. [ 2 ] The standard of review of the Board’s decision is reasonableness. [ 3 ] The applicant raises the following issues: (

i) the Board unreasonably found the ICRC investigation was adequate; (ii) the Board unreasonably found the ICRC decision was reasonable given the Committee’s finding that the applicant asked the patient for a written apology before he would provide further treatment (“the linkage issue”); and, (iii) the Board unreasonably took into account complaints history in violation of s. 26(2) of the Health Professionals Procedural Code ,

Schedule 2 to the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18. Issue 1: The Adequacy of the Investigation [ 4 ] The Board reasonably concluded that the ICRC investigation was adequate, as the ICRC was not missing any crucial

information that might reasonably have affected the outcome. The ICRC had the letter of Mr. Van Staden, the applicant’s employee, prepared at a contemporaneous time to the events giving rise to the complaint. There is no mention in his letter of the written apology, the matter of particular concern to the ICRC. Moreover, the applicant himself stated that he asked for a written apology after the patient had apologized verbally. [ 5 ] The ICRC operates as a screening body whose role is not to make findings of fact.

It did not need to resolve the dispute about what actually occurred between the applicant and the patient. It made its decision on the basis of the doctor’s admission that he asked for a written apology after two verbal apologies and after considering the doctor’s complaints history. Therefore, the ICRC made no error because of the failure to interview Mr. Van Staden, as any information he provided would not likely have affected the outcome.

Issue 2: The Linkage Issue [ 6 ] The applicant argues that the ICRC inappropriately found that the request for a written apology was a condition for the receipt of further treatment. A fair reading of the ICRC decision leads to the conclusion that the Committee found the applicant’s conduct - insisting on a written apology after two verbal apologies - was contrary to the College’s Policy on Physician Behaviour (see p. 5 of its Reasons). There is no reference to the tie-in to further treatment in the Committee’s actual finding.

Issue 3: What the Committee May Consider [ 7 ] The ICRC considered two prior decisions of the Committee, those of March 2010 and April [October] 2009. Subsection 26(2) of the Code mandates that the ICRC consider “all of its available prior decisions involving the member”. [ 8 ] The ICRC also had before it other complaints where communications difficulties arose between the applicant and his patients.

Subsection 26(1) of the Code gives the ICRC a broad discretion to consider “records and documents that it considers relevant to the complaint.” [ 9 ] Given the public protection role of the College, the ICRC reasonably considered the past history, as it was entitled to do under s. 26(1). Given the history of communications complaints between the applicant and his patients and the conduct of concern in asking a patient for a written apology, the ICRC reasonably concluded that remedial action was required.

The caution and educational requirement are not meant as sanctions, but are meant to benefit the physician and his patients by avoiding complaints of this nature in the future. Conclusion [ 10 ] The decisions of both the Board and the ICRC are reasonable. Accordingly, the application for judicial review is dismissed. LEDERMAN J. COSTS [ 11 ] I have endorsed the Application Record, “The Application is dismissed for oral reasons delivered by Swinton J. There will be no costs of the application.” SWINTON J. LEDERMAN J. SACHS J.

Date of Reasons for Judgment: May 27, 2013 Date of Release: June 3, 2013 CITATION : Armogan v. Health Professions Appeal and Review Board, 2013 ONSC 3095 DIVISIONAL COURT FILE NO.: 26/12 DATE: 20130527

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERMAN, SWINTON AND SACHS JJ. BETWEEN: NARENDRA ARMOGAN, MD Applicant – and – HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and HAROLD P. PICCININNI, by the executors appoint to his last will and testament dated December 7, 2006, and THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondents ORAL REASONS FOR JUDGMENT SWINTON J. Date of Reasons for Judgment: May 27, 2013 Date of Release: June 3, 2013