by Written on behalf of Wise Health Law January 16, 2018 4 min read

A recent decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (CPSO or College) illustrates the importance that the College places on honesty, and how closely tied honesty and integrity of a physician are tied to the patient physician relationship and the trust that the public has in the profession.

What Happened?

The physician in question is a 57-year old sports medicine doctor who ran the Institute of Sports Medicine (ISM) Health and Wellness Centre in west-end Toronto. The physician frequently traveled to the U.S to treat patients there, despite not being licensed to practice anywhere in the U.S. The patients he treated south of the border were primarily professional athletes including NFL and MLB players. The physician treated patients in various States, including: Hawaii, Cleveland, New York City, Miami, Tampa, Orlando, Washington D.C., Boston, Atlanta, San Diego, San Francisco, Denver, and Phoenix. He generally saw patients in their homes or in hotel rooms. To treat his patients, the physician would frequently send a colleague across the border in a car carrying pharmaceuticals and medical supplies, including prescription medications. Items of note included: Nutropin, Actovegin, ATP, ginseng, and Celebrex. Some of the substances the physician brought into the United States for these treatments, including Nutropin and Actovegin, were misbranded drugs within the meaning of U.S. law. Most of these items were unapproved to enter the U.S. as they were not properly marked or identified. He told the colleague that if Border Services ever questioned why she was travelling with these items she was to explain that she was going to a medical conference. In September 2009, under the physician’s instructions, the colleague attempted to enter the U.S at the Peace Bridge in Buffalo, New York. Her intended purpose was to join the physician in Washington D.C. where he was treating a professional athlete. The colleague was taken through primary and then secondary screening where she informed Border Services that she was travelling to Washington D.C. to attend a medical conference with her employer. The colleague was arrested and charged with making a false statement to a federal agent, and with smuggling. She was eventually convicted of a felony. In July 2011, the physician pled guilty in a U.S court to importing unapproved drugs into the U.S.

Penalty

At the Discipline Committee hearing, the physician admitted to all of the above facts and admitted that, based on them, he had engaged in professional misconduct. The Committee accepted the physician’s admission and found that he was guilty of an offence relevant to his suitability to practice and that he engaged in an act that would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional. The Discipline Committee ordered that:
  • The physician’s certificate of registration for a period of nine months;
  • That the physician appear before the Committee to be reprimanded within 60 days; and
  • That the physician pay costs to the CPSO in the amount of $21,500.00.

Reasons for the Penalty Decision

In coming to its conclusion as to the appropriate penalty, the Committee carefully balanced the aggravating and mitigating factors and considered previous discipline cases.

Aggravating Factors

A serious aggravating factor was the serious nature of the physician’s professional misconduct:
  • His actions had been planned, deliberate, and repeated for more than two years and over 70 trips;
  • He consistently exhibited dishonesty at the border;
  • He used treatments that were not FDA approved and mislabeled drugs in order to avoid detection;
  • He practiced medicine in several states without a license;
  • He demonstrated a profound disrespect for regulatory authority.
In addition, the Committee was appalled by the physician’s abuse of the trusting relationship with his colleague. Their working relationship had begun many years earlier, when she was high school student volunteering at his clinic. She eventually became a paid employee. The arrangement he had with her to drive across the border with supplies and medication made it convenient for him, but exposed her to the risk of being caught for engaging in illegal actions. After she was arrested, the physician demonstrated “callous disregard” for her situation by not making any immediate plans for her to be returned to Canada.

Mitigating Factors

Mitigating factors in favour of the physician were:
  • His admission of accountability and responsibility for his professional misconduct (this saved time and the expense of a contested hearing);
  • The remorse he expressed for his misconduct; and
  • The lack of a discipline record with the CPSO.
These mitigating factors prevented the penalty from being a total revocation of the physician’s license.

Honesty and Integrity

Overall, the CPSO’s central concern was that the physician’s conduct displayed “fundamental dishonesty”, which caused them serious concern. The Committee noted, citing a previous decision:
Honesty and integrity of a physician are fundamental to the patient physician relationship and a very serious break of these principles deserves the strongest sanction of the practitioner and a strong signal to the profession as a whole.
If you are a physician or other regulated health professional facing a complaint, investigation, or disciplinary hearing at your College contact the trusted and respected health lawyers at Wise Health Law. We have significant expertise assisting physicians and other health professionals in the civil and regulatory contexts, including in the complaints and discipline process, in litigation, in appeals and judicial reviews. We will help you understand your rights, risks, and options, guide you through the process, and skillfully represent you at the proceedings. Contact us for forward-thinking advice about health law and regulatory matters. Reach us online, or at 416-915-4234 for a consultation.


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