Bulletins

October 1996

This Bulletin is forwarded to every medical practitioner in the province. Decisions of the College on matters of standards, amendments to Regulations, By-Laws, guidelines, etc., are published in Bulletins. The College therefore assumes that a practitioner should be aware of these matters.

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Officers and Councillors 1995-1996

President - Dr. Michael Perley, Woodstock
V.-P. - Dr. David Beaudin, Saint John

Dr. Leonard M. Higgins, Saint John
Dr. Ludger Blier, Edmundston
Dr. Christine Davies, Saint John
Dr. Beatriz Sainz, Oromocto
Dr. Marc Panneton, Campbellton
Dr. Georges D. Surette, Moncton
Registrar - Dr. Ed Schollenberg

Dr. William Martin, Miramichi
Dr. David Olmstead, Harvey Station
Dr. Nataraj Chettiar, Bathurst
Ms. Suzanne Toole, Saint John
Dr. Pamela Walsh, Riverview
Mr. Eugene LeBlanc, Dalhousie
At its meeting on September 12, 1996 , Council considered the following matters:

Dr. X:

Council received the report of the Board of Inquiry wherein a physician was charged with three counts of sexual impropriety and three counts of unprofessional conduct. He was found guilty on one count of unprofessional conduct for inappropriately touching the patient in a manner which the Board described as "patronizing, insensitive, and unprofessional".

After reviewing the findings of the Board, and its recommendation on penalty, and hearing from the physician and his legal counsel,

Council ordered that the penalty should be a reprimand without publication. Council also made an order for costs related to the portion of the prosecution which had resulted in the guilty finding. This matter is subject to appeal.

Dr. Y.:

Council also accepted a report of a Board of Inquiry finding a physician not guilty of three counts of professional misconduct, alleging refusal to treat patients in an emergency department.

Physician Resource Management Plan Litigation:

Council received a report from the Registrar regarding some publicity relevant to legal action launched by several physicians against the Province regarding the Physician Resources Management Plan. The College had been named as a party in this action in regards to the College's role in licensing physicians, as well as the College's mandate to protect the public interest.

There is an obligation for all parties in such an action to make officials available for examinations for discovery. As a consequence, the Registrar had undergone such an examination by lawyers for the plaintiffs and for the government. The results of such an examination would not normally be released except at the time of the trial, and then only under limited circumstances. Nevertheless, the government sought to have the College removed from the case and presented a motion to the Court of Queen's Bench. As part of the evidence regarding this preliminary motion, lawyers for the plaintiffs introduced excerpts from the examination for discovery of the Registrar. This evidence thus became available to the public and subject to publicity. The College, including the Registrar, had provided no public comment at the time. Council endorsed the Registrar's actions in the matter.

Complaints Committee:

The Committee reviewed a complaint from a surgeon alleging that another surgeon had performed unnecessary surgery. After considerable difficulty in obtaining an outside expert opinion, the Committee could not find that the surgery performed was so clearly unnecessary as to suggest unprofessional behaviour. There will clearly be differences in approach among individual surgeons regarding the management of various clinical situations. It would only be where the approach taken was so clearly outside of the norm that further action could flow.

There was an allegation from the daughter of an elderly patient that a physician had failed to respond to a recall notice from the manufacturer of a pacemaker. There was a further allegation that the physician had failed to respond to the patient's deteriorating clinical situation. On reviewing the matter, it was clear that no "recall notice" had been issued by the manufacturer, but rather an advisory that patients with the particular type of pacemaker be monitored for problems. The evidence at hand was that this, in fact, was done. Furthermore, it was clear that the consultant, as well as the family physicians involved, had repeatedly assessed the patient regarding pacemaker function. When difficulties were found, the response was appropriate.

There was a complaint from the daughters of an elderly patient regarding the propriety of obtaining consent for treatment from the patient's "common-law" wife. The complainants alleged that they had refused consent for the particular treatment offered and the "spouse" did not have legal standing to provide this consent.

On reviewing the matter, the Committee found the legal issues regarding consent for treatment to be extremely clouded. While there were provisions, in regulation and statute, for consent for certain situations, they did not cover all of the clinical situations where physicians would be required to obtain consent from a family member regarding patients who are not able to provide consent themselves. While hospitals have developed policies on this issue, the legal standing of these policies was uncertain. From reviewing the case, the Committee felt that the physician had attempted to act in the best interest of the patient. While the legal standing of the common-law spouse to provide such consent was unclear, it was also unclear as to whether the daughters of the patient would be legally be able to refuse such consent. It was decided to review the matter in detail in order to provide physicians further advice on the issue.

There was a complaint regarding the post-operative management of a patient. The patient suffered complications after a laparoscopic procedure. There was an allegation that appropriate treatment was not initially provided, and when so, was delayed. Upon reviewing the matter, the Committee noted that the patient had become quite ill as a result of the complications. Furthermore, some of the medications which were used were well known to create memory difficulties. Inasmuch as the Committee could find no deviations from proper clinical practice on reviewing the records, the Committee wondered whether the patients perception of events had been altered by her clinical state and the use of medications involved. In any case, the Committee determined that no further action was necessary.

The Committee reviewed three complaints from the Minister of Health regarding the conduct of physicians, alleging failure to report to relevant agencies regarding a child who subsequently died from abuse and malnutrition. It was noted at the time of the events in question, the Family Services Act require physicians to report when they were, in fact, suspicious that a child had been abused. The Act has subsequently been amended to require reporting where the physician "ought to" recognize the fact of abuse. Nevertheless, the Committee reviewed the matter as if the newer provision was in place at the time.

The facts of this case cannot be summarized easily. Nevertheless, on critically reviewing the conduct of each physician, based on what each knew at the time in question, the Committee could find no fault with the care provided. Furthermore, the Committee reviewed the recent report provided to the Department of Health and Community Services regarding the management by that department of this situation. That report, produced by two consultants from out of province, recommended an improved method of communication between child protection workers and physicians. The Committee noted that there were several situations, during the course of this case, where improved communication might have avoided the eventual tragic results. As part of the response to the complaint, Council recommended to the Minister that such an approach be considered.

There was a complaint from an individual who had been seen by a surgeon on a regular basis for a particular clinical condition. It was alleged that when she raised questions regarding her condition, the surgeon became upset. The surgeon later advised the family physician that he would no longer be willing to see the patient on the same regular basis. In response, the surgeon stated that he felt the patient's questions were more appropriately answered by the family physician. In reviewing the matter, the Committee felt that inasmuch as the patient did have a long-standing relationship with the surgeon in question, it was improper for him to only advise the family physician regarding the termination of care. In such a situation, the patient should be advised directly. Furthermore, the Committee felt that any physician must respond to questions from patients. It was not appropriate to defer the matter to another physician when the consultant had the knowledge to respond appropriately.

There was a complaint from a patient that a physician was inappropriately charging patients directly in order to obtain an earlier appointment. In response, the physician advised that due to billing restrictions, he felt it necessary to provide services, on certain days, on an "opted-out" basis.

On reviewing the matter, the Committee noted that College regulations require that any fees charged to patients be "fully disclosed, fair, and reasonable. This seemed to be the case in this situation. The Committee did have questions regarding the ability of the surgeon to provide part of the services on an "opted-out" basis, but further treatment on an insured basis. The Committee found Medicare's response to queries regarding this to be somewhat in conflict with their own regulations. However, it would seem that the approach taken by the physician was compatible with Medicare policy on this issue. Nevertheless, the Committee and Council had some concerns regarding the ability of a physician to offer an advantage to patients based on their ability, or their willingness, to pay. While the College cannot overrule Medicare policy on this matter, the Council is considering developing rules regarding the propriety of offering advantages to patients in this way. Comments from members regarding this matter would be appreciated.

There was a complaint regarding the comments made by a physician in the course of an examination at an Out-Patient Department. The physician apologized for the comments in question. The Committee noted that such misunderstandings can certainly occur where the physician and patient are unfamiliar with each other. Physician can only be mindful of this in such situations.

There was a complaint that a physician had inappropriately terminated care after the patient had requested a consultation. The physician stated that he had been advised that it was quite appropriate to terminate such care when the patient had expressed distrust in his opinion. On reviewing the matter, the Committee noted that physicians are entitled to terminate the care to a patient with appropriate notice. However, such termination should not be for improper reasons. The patient had requested a consultation, as is the patient's right under the Code of Ethics. The Committee felt that simply asserting that right should not be grounds for terminating the patient's care, especially given the difficulties patients can have in finding new physicians in some locales. A request for another opinion is not an expression of distrust.

Fitness to Practise committee

The Committee reported that a physician had been ordered to attend an assessment of clinical competence out of province. Although initially refusing the Order, the physician had since complied. A report on the assessment was pending.

Nominating Committee

Council accepted the report of the Nominating Committee and elected the following to the Executive:

President: Dr. David Beaudin, Saint John
Vice-President:Dr. William Martin, Miramichi
Past-president: Dr. Michael Perley, Woodstock
Executive Member: Dr. Pamela Walsh, Riverview

Fibromyalgia

Enclosed with this mailing is a document prepared by the Collège des médecins du Québec which it is hoped is of interest to members.

From the Archives:

25 years ago:

At its meeting in September 1971, Council approved several licenses for physicians without full qualifications, restricting them to office and house calls only. Council heard criticism regarding the selection of Council members from District Medical Societies, and determined that, so far as possible, "non-New Brunswickers" shall only be granted temporary licensure.

50 years ago

At its meeting in October 1946, Council ordered the employment of a detective to investigate an illegal practitioner, rejected the concept of nurses anaesthetists, and accepted as a medical student an applicant who was born in Europe and moved to New Brunswick at age one, thus varying the policy requiring all medical students to be native-born.

75 years ago

At its meeting of March 1921, Council discussed an illegal practitioner who had suffered repeated convictions, but continued to practise, and noted that the new Medical Act would increase the fine for illegal practice to $20 for the first offence.

More From the Archives:

30 years ago

At its meeting in August 1966, Council decided to rescind recognition of Quebec specialists, agreed to survey physician workloads for a professional manpower survey, and discussed the impact of a physician refusing to respond to a complaint.

60 years ago

At its meeting in September 1936, Council discussed the prosecution of several illegal practitioners, refused the request of a nurse to continue managing the obstetric cases of her father, a physician who had recently died, and registered a physician who, because of lack of funds, had been denied a diploma by his university.

90 years ago

At its meeting in July 1906, Council discussed the prosecution of an osteopath, as well as several physicians in border areas who were practising without New Brunswick licensure, and approved a proposal to require registration of graduate nurses.