The suspension of a physician's license by its regulatory body, based on a single complaint from a patient and a collection of innuendo and hearsay from colleagues, was quashed. The suspension was not justified as physician was given no notice or opportunity to be heard.

[2012] N.B.J. No. 289

2012 NBQB 253

New Brunswick Court of Queen's Bench

H.H. McLellan J.

July 27, 2012

Three ophthalmologists expressed concern to the College of Physicians and Surgeons of New Brunswick (the "College") about the applicant ophthalmologist's practice. The College's lawyer met with them on April 24, 2012. The lawyer informed them that it would be difficult to act without an actual complaint but wrote a letter to the College summarizing her concerns as well as the concerns of several physicians (the "Letter"). The Letter included the following concerns: (1) the volume of work the applicant produces in a short period of time,(2) that the applicant rushes through patients, (3) that the applicant does not do appropriate examinations or consultations and otherwise expedites procedures, (4) that the applicant may manipulate information in evaluating his patients' vision, and (5) that the applicant has managed to organize the referral system in the area to get the bulk of optometrist referrals. The concerns were not based on specific allegations concerning mistreatment of certain patients.

Subsequently, one of the ophthalmologists who attended the meeting with the College's lawyer, faxed the College a letter from a patient. The patient's letter stated that the applicant saw her without a proper referral, examined her too quickly and recommended cataract surgery too quickly. The patient sought another opinion, by an ophthalmologist that met with the College's lawyer, and this other ophthalmologist opined there was no evidence that cataract surgery was necessary.

Against the above background, the council of the College had a meeting on June 1, 2012 concerning inter alia, the conduct of the applicant. The patient complaint and the Letter were reviewed and discussed by the College at the meeting. They were not provided to the applicant for a response prior to the meeting. The Minutes of the meeting stated that the main issues about the applicant had arisen from the applicant's colleagues who felt there were strong indications that the applicant was providing excessive service where it was not warranted. Prior to concluding what action should be sought, the legally trained Registrar of the College left the meeting. After a brief discussion it was decided that the applicant's medical licence would be suspended without delay and the matter referred to the Complaints and Registrations Committee. Four days later the Registrar faxed the applicant notice that he was suspended from practice. A copy of the patient's complaint letter was provided to the applicant as well as the College's Minutes. A copy of the Letter was not sent. Counsel for the applicant wrote to the College stating that, as a matter of fairness and due process, Council appeared to make its decision on concerns that were both baseless and that were not disclosed to the applicant.

The applicant applied for judicial review of the respondent College's decision to suspend his licence to practice. Fourteen days later, the Letter was provided to the applicant.

The court allowed the application. The court held that although the legislation authorizes summary suspension without notice of a member of the College, there are limits to this authority. In this case, the Letter and the patient's complaint letter had not been brought to the attention of the applicant, and therefore he did not have an opportunity to respond and be heard before the College made its decision to suspend his licence. The court found that the suspension of the applicant's licence had serious consequences on the applicant and his patients. Although appreciating the College's concern about protecting the public, the court held that the single complaint from a patient in conjunction with the Letter (which was based on generalities, hearsay and innuendo from physicians) did not establish that it was necessary to suspend the applicant's right to practice medicine without a notice and an opportunity to be heard. The application was allowed, and the decision of the College was quashed. The court also allowed costs of $2000 as a token contribution by the College to the legal costs actually incurred in the preparation of the application.