Physicians and surgeons - Disciplinary proceedings - Investigations - Penalties and suspensions; Judicial review - Evidence - Compliance with legislation - Standard of review - Reasonableness simpliciter

Ali v. College of Physicians and Surgeons

With respect to a tribunal’s findings of credibility, there is an important distinction between guessing, conjecture, and speculation on the one hand and drawing legal inferences from evidence where inferences can appropriately be drawn. In this case, the Court in a judicial review proceeding quashed one aspect of a tribunal’s credibility findings on the basis that it was unreasonable.

[2013] S.J. No. 54

2013 SKQB 38

Queen's Bench for Saskatchewan

T.C. Zarzeczny J.

February 4, 2013

A mother and daughter saw Dr. Ali at a walk-in clinic after waiting approximately two hours. The daughter had been suffering form a urinary tract infection for approximately three days. Dr. Ali prescribed medication appropriate for this condition. The mother refused to take the prescription because the examination was short. Yelling then ensued between the two. Two months later, the mother complained to the College of Physicians and Surgeons of Saskatchewan (the “College”) about the care her daughter received from Dr. Ali. As part of its investigation, the College obtained the daughter’s patient chart from Dr. Ali’s clinic and the chart was submitted for forensic analysis. It led to the admission of Dr. Ali that notations made on his chart were made using three different inks.

The College's charge proffered against Dr. Ali, and heard by the Discipline Hearing Committee (the “Committee”), was that Dr. Ali was guilty of unbecoming, improper, unprofessional or discreditable conduct contrary to The Medical Profession Act and College bylaws. The evidence behind this charge included: (1) Dr. Ali’s entry “O/E Temp 37.5” in the daughter’s chart. It was alleged Dr. Ali falsified this record because it was not an accurate reflection of the examination and treatment provided to the daughter. Dr. Ali explained that he touched the daughter’s cheek to check her temperature and it was normal and he made this recording; and (2) Dr. Ali’s entries in the daughter’s chart concerning the mother. The entries in issue was Dr. Ali's record that the mother “is very abusive and used racist remarks to me” and “called me a money hungry coloured, who don’t deserve to be in this country”. It was alleged these remarks were untruthful.

The Committee found Dr. Ali guilty. Dr. Ali appealed. There were two issues in the appeal. The first was whether the Committee erred in finding Dr. Ali guilty of unbecoming, improper, unprofessional or discredible conduct. The second concerned whether the penalty was reasonable.

The Court held the “reasonableness” standard applied.

The Court reversed the Committee's finding that Dr. Ali falsified the daughter's temperature in the chart. In the name of a “probability analysis”, the Court found the Committee engaged in much guesswork, conjecture, and speculation as opposed to an analysis of the evidence it received. The Court found that there was no sound basis in the evidence or its analysis that could reasonably support the conclusion that Dr. Ali falsified a record in respect of an examination or treatment of a patient within the College bylaw constituting unbecoming improper, unprofessional or discredible conduct within the meaning of The Medical Profession Act. For example, the Committee reasoned that the mother and daughter would remember what occurred at the clinic with “vivid clarity” when in fact the daughter’s recollection of certain details was fuzzy and uncertain. A further illustration concerned the significance the Committee attributed to the three different inks used: “Contrary to this analysis as made by the Hearing Committee, there was absolutely no evidence and therefore were no facts – only conjecture or speculation supporting the conclusion that the temperature notation was added “much later”. The only evidence on the point was that the notation was made with a different pen, which Dr. Ali addressed in his evidence.”

Regarding Dr. Ali’s entries concerning the mother, the Court upheld the Committee’s finding that the entries were falsified. Dr. Ali testified that the entries were made to alert himself and his colleagues of the mother’s abusive conduct in the event she returned to the clinic. The Court found this explanation did not withstand serious scrutiny. Notwithstanding when the entries were made, whether two days after the daughter’s examination as testified by Dr. Ali or otherwise, the Court supported the conclusion of the Committee that Dr. Ali’s purpose for making the entry was to minimize his culpability with respect to the complaint and that this purpose constituted culpable conduct.

Regarding the penalty, the Court found that in light of the results of the appeal, the sentence ought to be varied: to a three-month suspension (from a six month suspension) and a $5000 fine (reduced from $10,000). It upheld the penalty decision respecting the order that Dr. Ali pay the costs of the investigation and hearing proceedings against him. The Court rejected Dr. Ali’s argument that the penalty should run concurrently with a penalty imposed by the College Council in a separate and distinct disciplinary action that involved issues of professional ethics and honesty.