) ) BRUCE ALAN LIBERMAN Appellant – v. –, 2013 ONSC 4066

CITATION : BRUCE LIBERMAN v. COLLEGE OF PHYSICIANS, 2013 ONSC #4066 DIVISIONAL COURT FILE NO.: 133/12 DATE: 20130613 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, HERMAN AND HARVISON-YOUNG JJ. BETWEEN: ) ) BRUCE ALAN LIBERMAN Appellant – and – COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent )) )) )) )) ))) C. Hubbard & J. Feiner , for the Appellant L. Spiegel , for the Respondent ) ) ) HEARD at Toronto: June 3 & 4, 2013 NORDHEIMER J. : [ 1 ] Dr.

Liberman appeals from the decision of the Discipline Committee of the College of Physician and Surgeons of Ontario dated May 4, 2011 and the penalty and order of the Discipline Committee dated March 21, 2012. The Discipline Committee found that the appellant failed to maintain the standard of the profession, had engaged in disgraceful, dishonourable and unprofessional conduct and had displayed a lack of knowledge, skill and judgment in his care and treatment of a patient.

The Discipline Committee went on, in the penalty stage, to determine that the appellant had exhibited deficiencies in his judgment and/or knowledge and had not demonstrated any insight or understanding of his deficiencies. The Discipline Committee concluded that a reprimand and revocation of the appellant’s certification was appropriate. The appellant was also ordered to pay costs. Background facts [ 2 ] On September 20, 2007, the patient, a thirty-two year old female, underwent liposuction surgery performed by Dr.

Yazdanfar at the Toronto Cosmetic Clinic. [1] The patient died from complications arising from this procedure. The appellant was the anaesthesiologist for the surgery. [ 3 ] The patient underwent surgery from approximately 10:02 to approximately 13:08. [2] Over six litres of total aspirate were removed from the patient during surgery. The uncontradicted evidence is that removing more than five litres total aspirate in a liposuction procedure results in a higher risk of complications, including bleeding.

It is also uncontradicted that anaesthesiologists ought to know the major risks of every surgery for which they provide anaesthetic. The patient was transferred from the operating room to the recovery room. Upon her arrival in the recovery room at approximately 13:08, Nurse Alleyne hooked the patient up to the vital signs monitor, jotted down the timeline found on the recovery room record (13:15-16:15), and then put a warming blanket on her. The monitor would have registered the patient’s first vital signs in the recovery room shortly before 13:15.

Nurse Sircar was the second nurse present during the patient’s surgery and post-operative care in the recovery room. [ 4 ] Over the next three hours, the condition of the patient deteriorated to the extent that she became unconscious and required

re-intubation. At 15:51, almost three hours after the completion of the surgery, Dr. Yazdanfar called 911. When the paramedics arrived minutes later at 16:00, they found the patient in a pool of blood with vital signs absent. The patient was taken to nearby North York General Hospital but was pronounced dead at 18:44. [ 5 ] Four persons were involved in these events at the time: the appellant, Dr. Yazdanfar and the two nurses. The Discipline Committee heard from both of these nurses, neither of whose evidence was entirely satisfactory.

There was a serious issue between these two nurses as to who did what and at what times. There was also a serious issue involving the accuracy of certain clinic records including the anaesthetic record, the recovery room record and other contents of the patient’s chart.

Central to these issues was the determination of the timeline for the events and critical to that timeline was the accuracy of the recovery room record. [ 6 ] The recovery room record, if accurate, shows a blood pressure for the patient that is very low and would mean that the patient was in a problematic state from the moment that she was moved into the recovery room.

The appellant says that the recovery room record is inaccurate and inconsistent with the anaesthetic record that he completed that shows a much higher blood pressure reading for the patient at the time immediately prior to her being moved from the operating room. In addition, the appellant says that the suggestion that the patient was in trouble at this point is inconsistent with the patient’s appearance at the time.

The evidence was that the patient was alert, talkative and able to assist in shifting herself from the operating room table to the cart that moved her to the recovery room. [ 7 ] In terms of the blood pressure readings on the recovery room record, Nurse Alleyne said that she recorded the first two blood pressure readings. In contrast, Nurse Sircar said that she recorded all of the blood pressure readings including the first two.

Nurse Sircar’s evidence, and the Discipline Committee’s treatment of it, is central to this appeal. [ 8 ] Later in the day, after the events involving the patient had concluded, the two nurses, Dr. Yazdanfar and the appellant had dinner together. They discussed the events of the afternoon. That same evening, Nurse Sircar prepared a personal log of the events. She did so because she knew that the death of the patient would be subject to regulatory review. Nurse Sircar’s personal log confirms the contents of the recovery room record and, in particular, confirms the first low blood pressure reading.

Nurse Sircar’s personal log also confirms that this low blood pressure reading was known to Dr. Yazdanfar and the appellant. [ 9 ] In addition to preparing this personal log, in August 2008, Nurse Sircar gave a sworn statement to the College. In that statement, she confirmed that: (

a) she made the notations in the recovery room record beginning at 13:15 and ending at 14:45; (

b) between those times the patient’s blood pressure was roughly anywhere from 60 to 110; and (

c) at around 14:45, the patient’s blood pressure dropped dramatically and she required re-intubation. Nurse Sircar also told the College that after the patient was re-intubated, she started a secondary IV line and took over managing her airway. Because her hands were busy, she said she “obviously” was not able to write anything down past this point. [ 10 ] When Nurse Sircar gave evidence before the Discipline Committee, she essentially disowned her personal log, her earlier statement and the contents of the recovery room record.

She asserted that she had since seen the video of the events reflected in the security video from the hallway between the operating room and the recovery room and, as a result, had “recovered” her memory of the events. Nurse Sircar contended that her recovered memory was that, after the paramedics arrived and as the patient was about to be transported to hospital, she checked the records in order that they could accompany the patient to the hospital. When she did so, Nurse Sircar became aware that the recovery room record had no blood pressure readings on it at all.

As a consequence, Nurse Sircar says that she scrolled back on the vital signs monitor and noted the blood pressure readings on the recovery room record. She did so in reverse order, however. In other words, the recovery room record as now updated by Nurse Sircar showed the last reading first and the first reading last entirely opposite to the times noted across the top of the recovery room record.

In addition, Nurse Sircar added that, when she made these notations on the record, she did so with her left hand as she was busy with her right hand still attending to the patient. [ 11 ] The Discipline Committee heard from a document expert with respect to a number of issues regarding the records of the clinic respecting this event. On the issue of the blood pressure readings, the expert said that he could determine that the three blood pressure readings on the recovery room record shown at 13:15, 13:20 and 13:30 were written when there were no other documents underneath that page.

In contrast, the expert also determined that the blood pressure readings shown at 13:45, 14:15 and 14:45 were made when there were documents underneath that page. The document expert was able to determine that one of these documents was the fat extraction measurement record. The security video showed, and Nurse Sircar confirmed, that she completed the fat extraction measurement record and brought it to the recovery room just a few minutes prior to 13:45.

The expert also gave his opinion that there was no indication from the handwriting that the blood pressure readings were written by Nurse Sircar’s left hand. [ 12 ] Dr. Jaeger, one of the College’s expert anaesthesiologists, testified that based on her fifteen year experience, it is the standard that nurses chart contemporaneously. Nurse Sircar acknowledged that she was trained to chart contemporaneously and provided no evidence of any event prior to 14:45 that would have prevented her from doing so.

Nurse Sircar admitted entering the recovery room at 13:20 and acknowledged that, if she had looked at the monitor at that time, she would have been able to see the patient’s vital signs for the previous five to ten minutes. [ 13 ] Both Nurse Sircar and Nurse Alleyne gave evidence about two conversations they had regarding the patient’s blood pressure because of some concerns that they had. The first conversation was soon after Nurse Sircar arrived in the recovery room after discharging another patient at 13:20. The second conversation was around 14:00, after the next patient’s surgery had begun.

After the second conversation, the nurses did a manual blood pressure reading to ensure the monitor was correct, and called Dr. Liberman to the recovery room to assess the patient. Dr. Liberman instructed them to change the patient’s position and give her additional fluid. Both nurses testified that around this time the patient’s blood pressure was in the 60’s. [ 14 ] Nurse Sircar also gave evidence that she believed the patient collapsed around 14:45, and admitted she was unable to chart after that point because she was assisting with the re-intubation.

This time was also consistent with the contents of Nurse Sircar’s personal log and consistent with the recovery room record that shows the last blood pressure reading at 14:45. [ 15 ] A call was eventually placed to 911 by Dr. Yazdanfar at around 15:50. Firefighters arrived about five minutes later and

paramedics arrived about five minutes after that. The paramedics found the patient with a white chalky colour lying in a pool thatappeared to be blood mixed with a saline type fluid. The patient was unconscious, not responsive and had no vital signs. The firefighterscommenced chest compressions and various drugs for a cardiac arrest situation were given to the patient. The patient was transportedfrom the clinic at 16:18 and arrived at the hospital at 16:23. [16] At the hospital, the patient was treated in the emergency room. Dr.

Slaughter, an internist who treated the patient in theemergency room, gave evidence that the patient’s haemoglobin on admission was 6 grams per litre. A normal value for women isbetween 120 and 160 and a critical value would be less than 60 grams per litre. Dr. Slaughter gave evidence that the patient had virtuallyno oxygen carrying capacity in her blood. Dr. Slaughter also gave evidence that the normal value for proteins in the blood is between 60and 80 grams per litre and that this patient’s value was 5. Dr. Slaughter said that this was the most profoundly low protein he had seen inhis professional life. Dr.

Slaughter also said that the patient had no coagulation factors meaning that there was little to form clots to beable to staunch the blood flow. Despite aggressive treatment at the hospital, the patient was pronounced dead at 18:44. The standard of review [17] There is no dispute that the standard of review regarding the Discipline Committee’s findings and conclusions is one ofreasonableness. In terms of the appellant’s assertions that he was denied natural justice, there is no standard of review that is applicable.

Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to.[3] The issues [18] The appellant’s submissions, at their core, amount to a request that this court essentially retry the case advanced against him. That is not this court’s function. As was aptly stated in Re Singh and The College of Nurses of Ontario (1981), (ONSC), 33 O.R. (2d) 92 (Div. Ct.) by Reid J. at p. 93: However wide our powers are they do not, in my opinion, amount to a general warrant to retry cases decided by the Committee. As apractical matter that would be impossible.

The reasons for this have repeatedly been expressed by Courts of Appeal. An appeal under s.13 is not a trial de novo. Much of the appeal amounted to an invitation to retry this case. That, I think, we must refuse. [19] It is a basic principle that findings of fact by a trier of fact are entitled to considerable deference on appeal. The deference tobe given to the Discipline Committee who heard and saw the witnesses in terms of their factual findings is heightened where thosefactual findings are based on credibility issues. On that point, I note the observation made in Dr. Q v.

College of Physicians andSurgeons of British Columbia, 2003 SCC 19 , [2003] 1 S.C.R. 226 by McLachlin C.J.C. at para. 38: Finally, however, the need for deference is greatly heightened by the nature of the problem -- a finding of credibility. Assessments ofcredibility are quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence,must be respected.

An appellate court is only permitted to intervene on questions of fact where it can be demonstrated that the fact finder has committed “apalpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” – see F.H. v.McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at para. 73. [20] With those principles in mind, I turn to the issues raised by the appellant. (

i) Timing of Events [21] The challenge to the Discipline Committee’s findings and conclusions begins with the issue as to what the state of the patientwas when she was transferred to the recovery room. The Discipline Committee found that the patient was unstable at that time. Theappellant disputes this finding.

He points to the fact that the anaesthetic record shows a blood pressure of 110 as the last reading in theoperating room, that the recovery room record is inaccurate and unreliable and that the patient was alert when she was transferred to therecovery room. [22] The Discipline Committee considered all of these issues. They gave thorough and cogent reasons addressing all of them. Inparticular, the Discipline Committee gave careful reasons for their conclusion that the recovery room record was, in fact, accurate.

TheDiscipline Committee rejected Nurse Sircar’s evidence as to her later version of how the recovery record came into existence. Amongthe reasons for rejecting her evidence was the fact that the recovery room record was consistent with Nurse Sircar’s personal log made inthe evening of the same day when the events would have been fresh in Nurse Sircar’s mind.

The Discipline Committee also rejected thecontention that these two experienced nurses would have failed to record any blood pressure readings for more than an hour. [23] In my view, the reasons that the Discipline Committee gave for concluding that the recovery room record was accurate areunassailable. The evidence given by Nurse Sircar regarding her “recovered” memory regarding how the blood pressure entries came tobe placed onto that record is simply incapable of belief.

Indeed, even counsel for the appellant at the hearing referred to the notion thatNurse Sircar would have recovered her memory as a consequence of watching the security video as “preposterous”. Not only is itinconsistent with the established practice of contemporaneous record keeping that experienced nurses engage in, it is inconsistent withher own personal log made the evening of the events, it is inconsistent with her sworn statement given to the College during itsinvestigation and it is inconsistent with the evidence of the document examiner.

In addition to each of these considerations, there is alsothe salient fact that, by the time that Nurse Sircar came to give evidence before the Discipline Committee, she had her own personalreasons to want to provide a much different version of the events as she was facing both regulatory and civil proceedings. [24] The appellant also contends that the recovery room record is inaccurate because it is inconsistent with the appearance of thepatient in that she was alert and talkative. However, the expert evidence was that these physical manifestations of the patient were notinconsistent with her being in distress.

An expert said that a person could appear alert and responsive notwithstanding low bloodpressure because of the ability of the human body to cope with and react to the condition. The expert went on to say, however, that aperson could not maintain that response for a long period of time. This evidence was also thoroughly canvassed by the Discipline

Committee in the course of their reasons. [ 25 ] The appellant further asserts that the notion that the patient was in distress immediately upon being moved to the recovery room is inconsistent with the contents of the security video. That video, according to the appellant, shows a “flurry” of activity at 15:15 and not at 14:45 when other evidence suggests that the patient “crashed” and had to be re-intubated. [ 26 ] The difficulty with that assertion is that, as is often the case with surveillance videos, there are significant limitations as to what the video establishes.

It was admitted that the security video was not set up to operate continuously. The security video system was motion sensitive. It would only commence recording when it was activated by movement. However, it was also admitted that not all movement would activate the system. That reality is easily recognizable from looking at the security video, which I have done. It is not just that the security video does not capture all movement, it sometimes does not capture complete movements. For example, in some instances, persons disappear from the video while they are walking down the hallway.

In other instances, persons exit from rooms that there is no record of them entering. [ 27 ] Unfortunately for the purposes of this proceeding, there is an eighteen minute gap in the video between 14:47:55 and 15:06:03. The reason for that gap is unexplained. The reality of the gap, however, means that the surveillance video does not assist in determining what happened at that particular point in time. The gap cannot prove, as asserted by the appellant, that nothing happened given the limitations inherent in the system.

There is simply an absence of evidence from the security video as to what happened in that time frame one way or the other. [ 28 ] On this point, it is implicit in the appellant’s assertions that, if the patient “crashed” at 14:45, then there would have been significant activity seen in the hallway between the recovery room and the operating room and the security video would, consequently, have been triggered. I would note two things in response to that point.

First, there is in the period from 14:34 to 14:47, a fair amount of activity going on in terms of persons going in and out of the recovery room, notably Nurse Sircar and the appellant. That activity is not appreciably different in terms of the level of activity that is subsequently seen at 15:15. Second, I do not see why it must necessarily be the case that there would have to be a particular level of activity seen in the hallway when the patient went into crisis.

If the patient went into extreme distress at 14:45, and if the nurses and the appellant were present at the time, there would not be any need for movement outside of the recovery room or, at least, no need for such activity until additional supplies were required. There is no evidence, one way or the other, whether there were sufficient supplies and equipment available to begin treatment in the recovery room. [ 29 ] When the surveillance video does again capture activity, it does so commencing at 15:06, almost ten minutes prior to what the appellant contends was the patient “crashing”.

Further, and in any event, the security video does not assist in establishing what exactly is going on. As the nurses admitted when shown the video at this juncture, they could not tell from it whether the appellant, for example, is carrying something and, if so, what it is. While the surveillance video shows the movement of people at particular points in time, it is not of a sufficient quality to establish anything more than that. It is also an overstatement to say that the security video shows a “flurry” of activity at this time.

The amount of activity does increase as time goes by but that fact is not inconsistent with this later activity simply being a continuum from the activity that began at 14:34. In addition, none of that activity displays, to the outside observer, any sense of urgency until the firefighters arrive at 15:57, about three minutes before the paramedics arrive. [ 30 ] All of this is, of course, to a certain degree beside the point. It is not the task of this court on appeal to independently review evidence and reach our own conclusions where that evidence leads or what conclusions should be drawn.

That was the task of the Discipline Committee. They undertook that task and for sound reasons they reached certain conclusions. Those conclusions were reasonable ones to be drawn from the evidence. There is no basis for this court to interfere with them. [ 31 ] Finally on this point, the appellant asserts that the conclusions of the Discipline Committee regarding the actions of the appellant do not accord with common sense. The appellant says that it is “implausible that trained medical professionals would knowingly leave a patient in distress”.

The flaw in that assertion is that it assumes that these trained medical professionals were alert to the problems that the patient was encountering. Central to the Discipline Committee’s findings is that the appellant failed to recognize the critical nature of the situation that existed. Common sense only operates if the correct facts are known.

The conclusion that the appellant did not appreciate that he had, on his hands, a patient who was in crisis, and therefore did not react appropriately, eliminates any opportunity for common sense to provide alternative explanations. (ii) Procedural Fairness [ 32 ] The appellant asserts that he was denied procedural fairness by the Discipline Committee.

In particular, the appellant says that he was not given adequate notice that a finding of dishonesty might be made against him regarding certain events that occurred with respect to the patient’s chart. [ 33 ] In the patient’s chart, there is a resuscitation note written by the appellant dated September 21, 2007. It expressly states that its purpose is to detail the events involving the death of the patient that occurred on September 20, 2007. There was also evidence, though, that there had been a resuscitation note dated September 20, 2007 that had originally been in the file but that had been removed.

The document examiner gave evidence that documents had been removed from the file. Moreover, he gave evidence that the author of the September 21, 2007 resuscitation note also wrote the note that was missing from the file. [ 34 ] The Discipline Committee concluded that the appellant had written a resuscitation note on September 20, 2007. This conclusion would be consistent with the evidence of the appellant’s own expert that the appellant ought to have written a resuscitation note immediately after the appellant’s involvement with the patient ended and the patient was transferred to the hospital.

There was no dispute that the appellant had written the September 21, 2007 resuscitation note. The Discipline Committee concluded that the appellant had removed the September 20, 2007 resuscitation note from the file and also concluded that there were differences between the contents of the two notes.

[35] On this latter point, in the September 21, 2007 resuscitation note, the appellant had recorded that the blood loss from thepatient was not excessive prior to the sudden loss of blood that he said occurred at 15:35. The appellant had also recorded in the notethat the patient’s blood pressure was near normal at 100/55 and her O2 sat was 100%. The Discipline Committee concluded that both ofthese entries were false.

In terms of the first point, the Discipline Committee observed that the fact that the patient “bled out” at 15:35,because she no longer had any coagulation factors left, was inconsistent with the contention that there had not been excessive bleedingearlier. Excessive bleeding must have occurred earlier to consume all of the patient’s coagulation factors.

In terms of the second point,the Discipline Committee observed that the appellant’s entry that the patient’s blood pressure was near normal was inconsistent with therecords of the patient’s condition at the time that she arrived at the hospital some fifteen to twenty minutes later and was inconsistentwith the observations of the paramedics that the patient was vital signs absent. [36] The appellant asserts that he was not given proper notice of the allegation that he had acted dishonestly in terms of hisconduct regarding these resuscitation notes.

The appellant also asserts that there was no evidence before the Discipline Committee thathe had removed the September 20, 2007 resuscitation note. [37] I do not accept the appellant’s assertions in either respect. On the issue of notice, I note the following: (

i) the Notice of Hearing set out that the appellant had engaged in “… disgraceful, dishonourable or unprofessional conduct inhis care and treatment of Patient A, including the charting of his care or treatment …” [emphasis added]. (ii) the appellant was given copies of the reports by the document examiner that included the document examiner’s conclusion anote written by the appellant and dated September 20, 2007 had been removed from the Chart and replaced with a note dated September21, 2007. (iii) the appellant was provided in advance with the Ambulance Call Report by the paramedics in which they recorded that thepatient was vital signs absent thus contradicting the appellant’s September 21, 2007 note. (iv) in the College’s opening statement, counsel stated that the document examiner would give evidence that the September 21,2007 note was a substitute for the September 20, 2007 note that had “obviously been removed from the chart”. [38] In my view, these various items collectively were sufficient to put the appellant on notice that the Discipline Committeewould be asked to consider the issues surrounding the resuscitation notes and the fact that one of the notes had been removed from thepatient’s chart and replaced with the other.

Given that the evidence was that the appellant wrote both of the notes, he was an obvioustarget on the question of who removed the first note. No one else had any apparent motivation to change the notes especially a motive tosubstitute one that reflected more favourably on the appellant than did the other. [39] In addition, however, there are other factors that would have reinforced the evident fact that the concern around theresuscitation notes was a live issue for the Discipline Committee’s consideration.

First and foremost among those is the fact that adocument examiner was called and gave evidence of his findings respecting the notes. Second is the fact that in his closing address,counsel for the respondent made it abundantly clear that the College was contending that the appellant had removed the firstresuscitation note and replaced it with the second.[4] No objection was made by the appellant regarding these submissions. Noassertion was then made that the appellant had been caught by surprise by this allegation.

No request was made by the appellant to re-open the hearing so that he could respond to what he now contends was an entirely new allegation of which he had had no notice.

At nopoint, from the start of the hearing to its completion, did the appellant ever contend that the allegation by the College, that he hadremoved his first resuscitation note and replaced with the second later resuscitation note, was something that he had had no notice wouldbe advanced against him. [40] The failure to raise this issue before the Discipline Committee would normally be fatal to any attempt to raise the issue onappeal.[5] In any event, for the reasons I have set out, I am satisfied that the appellant had notice of the issue at the time that the matterwas before the Discipline Committee and that, consequently, his contention that he was denied procedural fairness must fail.

I will add,on this point, that appellant counsel’s frequent reference during submissions to this issue as being an allegation of fraud, in an apparenteffort to elevate the particularity required for notice of the issue, is not a fair one. It was never suggested that the appellant’s actionswere tantamount to

an act of fraud. Rather, the issue was whether the actions of the appellant amounted to disgraceful, dishonourable orunprofessional conduct – a matter that was expressly referred to in the Notice of Hearing. [41] I can deal with the submission that there was no evidence that the September 20, 2007 note was removed from the patient’schart by the appellant more briefly. I agree that there was no direct evidence of that fact. However, there was considerablecircumstantial evidence from which a reasonable inference could be drawn that that is what occurred.

There appears to be no dispute thatboth notes were written by the appellant. One appears in the chart on the day of the events and the other appears in the chart the verynext day. There were differences between the two notes with the later note being more favourable to the conduct of the appellant. Theappellant therefore would have had a direct interest in seeing the second note replace the first. Further, if the appellant did not removethe first note, he must have expected that both notes would be in the chart.

It is not readily apparent why the appellant would want twonotes written by him to appear in the chart when there were differences in the content of the two notes. That result would only raiseimmediate questions regarding the actions of the appellant. Still further, there is no apparent reason why any other person would want toremove the first note and leave the second. As for the appellant’s submission that Dr.

Yazdanfar, as owner of the clinic, might haveremoved the first note, there is no apparent benefit to her that arises from the removal of the first note as neither note addresses herconduct nor does it make any sense for her to engage in conduct that would only raise issues regarding the proper maintenance of theclinic’s records. [42] I make one further observation on this issue although it also has application to other issues raised. The appellant did not giveevidence before the Discipline Committee. The Discipline Committee was therefore not provided with any other facts that wouldexplain these events.

If circumstantial evidence points to a particular conclusion, the person who is the subject of that conclusion oughtnot to be surprised that it is reached if he fails to provide any explanation to the contrary. As was observed in R. v. Noble, (SCC), [1997] 1 S.C.R. 874 by Sopinka J. at para. 87:

Again, in my view it is clear from the passage cited that while it is permissible to conclude from the failure to testify that there is nounspoken, innocent explanation about which the trier of fact must speculate, it is not permissible to use silence to strengthen a case thatotherwise falls short of proving guilt beyond a reasonable doubt.

If the totality of the evidence leads to guilt beyond a reasonable doubt,the accused’s silence simply fails “to provide any basis to conclude otherwise”. (iii) Penalty [43] The appellant also appeals from the Discipline Committee’s conclusion to impose a reprimand and revocation as the penalty. The appellant says that the penalty imposed was excessive given that the problems at issue arose with respect to a single patient on asingle occasion.

The appellant also says that the penalty imposed marks a departure from years of other decisions regarding the nature ofthe conduct that warrants revocation. [44] The matter of penalty is one that is especially within the expertise of a specialized tribunal. The respondent, like other rulingbodies of self-governing professions, is particularly well-placed to determine the appropriateness of penalties for given misconduct. Aswas observed in Law Society of New Brunswick v.

Ryan, 2003 SCC 20 , [2003] 1 S.C.R. 247 by Iacobucci J. at para. 31: First, the Discipline Committee has greater expertise than courts in the choice of sanction for breaches of professional standards. …Practising lawyers are uniquely positioned to identify professional misconduct and to appreciate its severity [citations omitted] The same, of course, can be said of practising doctors. [45] Further, the Discipline Committee gave detailed reasons for deciding that revocation was the necessary penalty in this case.

They noted the multiple examples of bad judgment demonstrated by the appellant and they noted that he had little, if any, insight into hisfailings in the treatment of the patient. The Discipline Committee had expert evidence before them that remediation of a physician isineffective where the physician has no insight into his or her failings. [46] In addition to all of these considerations, the Discipline Committee also had to consider the significant fact that the appellanthad acted in a dishonest way in removing the earlier resuscitation note. That action called into question the appellant’s integrity.

In theend result, the Discipline Committee concluded that the safety and protection of the public required that revocation be imposed. Thatwas a discretionary decision for the Discipline Committee to make. Their decision was reasonable in the circumstances. Again there isno basis for this court to interfere with it. (iv) Other issues [47] Two other issues warrant brief mention. One is that, during the course of submissions, counsel for the appellant, on morethan one occasion, referred to the fact that the recovery room record was not in evidence.

After some questioning as to what preciselythe appellant was submitting in making these references, it became apparent that the appellant was suggesting that the recovery roomrecord had not been proven. This issue arose, in turn, because of the manner in which documents were put before the DisciplineCommittee. As would be expected, counsel had agreed on a book of documents to be placed before the Discipline Committee. With twoexceptions, those documents were put before the Discipline Committee as prima facie proof of the truth of the facts set out in thedocuments.

One of those exceptions was the recovery room record. In that regard, the appellant expressly did not accept the authenticityor accuracy of any of the notations made by Nurse Sircar. It was never, however, the position of the appellant that the recovery roomrecord was not a record of the clinic. [48] The failure of the appellant to admit the authenticity or accuracy of the recovery room record does not, by itself, leadinexorably to the result that the record was not evidence. The Discipline Committee had the evidence of Nurse Sircar that she completedthe recovery room record.

The only issue on her evidence was when the recovery room record was completed. As I have alreadymentioned, the Discipline Committee rejected Nurse Sircar’s evidence that she completed the recovery room record after the paramedicsarrived. The Discipline Committee concluded that Nurse Sircar had, in fact, completed the recovery room record at or close to the timesreflected on it consistent with her personal log and her subsequent sworn statement to the College. Having reached that conclusion, therecovery room record was then evidence.

It was a record kept in the ordinary course of the clinic’s business and its contents wereconfirmed by the person who authored it. It is difficult to see what else was required in order to have the recovery room recordconstitute evidence for the purposes of the proceeding. [49] The other issue is the appellant’s submission that the Discipline Committee engaged in selective use of certain witnesses’evidence, notably Nurse Alleyne and Nurse Sircar, and did so in a manner that was unfair to the appellant. A trier of fact is entitled tobelieve some, none or all of a witness’ evidence.

The evidence of any witness does not have to be treated on an all or nothing basis. TheDiscipline Committee accepted some aspects of the evidence of Nurse Alleyne and Nurse Sircar given at the hearing, albeit very limitedaspects. They were entitled to do so. The fact that the portions of those witnesses’ evidence that were accepted were contrary to theappellant’s position does not constitute their use as unfair. The result may be detrimental to the appellant’s position but that is a differentmatter than saying it operates unfairly to him. Conclusion [50] The appeal is dismissed.

In accordance with the agreement between the parties, there will be no order as to costs. NORDHEIMER J.

HERMAN J. HARVISON-YOUNG J. Date of Reasons for Judgment: June 13, 2013 Date of Release: CITATION : BRUCE LIBERMAN v. COLLEGE OF PHYSICIANS, 2013 ONSC #4066 DIVISIONAL COURT FILE NO.: 133/12 DATE: 20130613 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, HERMAN and HARVISON-YOUNG JJ. BETWEEN: BRUCE ALAN LIBERMAN Appellant – and – COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: June 13, 2013 Date of Release: