Court shoots down kidney doctor’s argument that investigatory committee used wrong statutory test

Report finds communication gaps between doctor and clinic, potentially causing patient confusion

Court shoots down kidney doctor’s argument that investigatory committee used wrong statutory test

The Divisional Court has upheld an investigatory committee’s decision to restrict a nephrologist from treating patients at very high risk of developing end-stage kidney disease.

In Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, the Medical Advisory Committee of the Windsor Regional Hospital suspended the hospital privileges of the applicant, a nephrologist. The Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario conducted its own investigation, for which it considered the expert reports of the nephrologist who was appointed as independent assessor, Dr. Yeates, and of another nephrologist, Dr. Levin.

Dr. Yeates concluded that, in 17 of 28 cases reviewed, the applicant’s clinical practice and conduct were likely to expose patients to harm or injury. She identified major communication gaps between the applicant and the team at the Multi-Care Kidney Clinic, which could potentially lead to patient confusion and risk of patient harm. Dr. Levin similarly found deficiencies in the applicant’s treatment, which placed the patients at risk of harm.

The committee, relying on these two expert reports and on other evidence, decided to issue an order restricting the applicant from treating patients who were at very high risk of developing end-stage kidney disease and requiring him to get a clinical supervisor who would monitor his practice.

The applicant sought judicial review, arguing that the committee’s decision was unreasonable. The Divisional Court of the Ontario Superior Court of Justice dismissed the application and awarded the college costs of $15,000. The court stated that the committee supported its conclusions with adequate evidence, and that the applicant failed to show that the committee’s decision was unreasonable in terms of its outcome or its reasoning.

The applicant contended that the committee had applied the incorrect statutory test by determining whether there was risk of harm or possibility of harm, instead of determining whether there was evidence of probable harm.

The court disagreed and said that the committee had used the proper statutory test. “The ICRC and the expert reports on which it relied spoke of the likelihood of exposing patients to harm,” wrote Justice Katherine E. Swinton for the court.

The court emphasized that the role of the court is to decide whether the committee’s factual conclusions are reasonable considering the evidence before it and logically, coherently and rationally explained. The court is not tasked with reweighing the evidence.

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