2014-HPA-027(a)

Health Professions Review Board
Suite 900, 747 Fort Street
Victoria British Columbia
Telephone: 250 953-4956
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Facsimile: 250 953-3195
Mailing Address:
PO 9429 STN PROV GOVT
Victoria BC V8W 9V1
Website: www.hprb.gov.bc.ca
Email: hprbinfo@gov.bc.ca
DECISION NO. 2014-HPA-027(a)
In the matter of an application under section 50.6 of the Health Professions Act,
R.S.B.C. 1996, c. 183, as amended, (the “Act”) for review of a complaint disposition
made by an Inquiry Committee
BETWEEN: The Complainant COMPLAINANT
AND: The College of Physicians and Surgeons of BC COLLEGE
AND: A Physician and Surgeon REGISTRANT
BEFORE: Lorne R. Borgal, Panel Chair REVIEW BOARD
DATE: Conducted by way of written submissions concluding on
January 12, 2015
APPEARING: For the Complainant:
For the College:
For the Registrant:
Self-represented
Sarah Hellmann, Counsel
Raj Samfani, Counsel
DECISION ON APPLICATION FOR REVIEW
I STAGE 2 HEARING
[1] Having been previously directed to Stage 2 of the hearing process, this review of
a disposition by the Inquiry Committee is based on the record of investigation provided
by the College with submissions received from the Complainant, the Registrant and the
College.
II INTRODUCTION
[2] The Complainant was the husband of the patient for whom the Registrant was
the anesthesiologist. The patient had previously undergone radiation therapy in
treatment for a tumor in her brain and was scheduled to have elective surgery for a total
knee replacement. In preparation for the knee surgery the patient requested spinal
anesthesia as this had worked well for her previously and she believed it was important
that she not have general anesthesia due to the radiation therapy.

DECISION NO. 2014-HPA-027(a) Page 2
[3] At the time of the surgery the Registrant attempted a spinal anesthesia and after
multiple attempts he administered a routine general anaesthetic. The patient’s general
practitioner (“Doctor A”) reported that she declined rapidly following the surgery. Prior
to this hearing the patient succumbed to her illness.
[4] Upon receipt of the complaint the Inquiry Committee completed an investigation
and issued a disposition letter which found that the Registrant met the standard of care.
In his application for review the Complainant challenged the decision of the Inquiry
Committee and asked for a review by the Review Board.
[5] The Review Board exists, in part, in order to provide for impartial and objective
reviews of complaint dispositions of Inquiry Committees of the health colleges of British
Columbia upon application for review by a Complainant. These are reviews of
dispositions and not fresh examinations of complaints. In completing a review I
examine the entire record of the matter pertaining to the complaint. My mandate in this
case is to determine whether the Inquiry Committee conducted an adequate
investigation and if it was, then I am to determine whether the disposition of the matter
was reasonable.
[6] In the event that I find that the Inquiry Committee disposition was either not
adequate or not reasonable then the Act provides me with the authority to direct the
Inquiry Committee to make a disposition that it could have made or (more typically) to
send the matter back to the Inquiry Committee with specific directions.
III DECISION
[7] In the course of this review I have considered all of the information before me
whether I specifically referenced it herein or not. I have, for the reasons presented
below, found that the investigation of this complaint was adequate; however, I find that
the disposition failed to satisfy the basic criteria of a reasonable decision and for that
reason I am returning this matter to the Inquiry Committee with directions.
IV BACKGROUND FACTS
[8] The patient had previously had treatment related to a tumor in her brain and had
a total knee replacement of her left knee in the period before the current surgery.
Having made the decision to have elective surgery for the replacement of her right knee
and in anticipation of this surgery which has led to this review, the patient and the
Complainant state that they repeatedly expressed their concerns regarding the risk of
general anesthesia on her brain function given her medical history
[9] Their request for spinal anesthesia was known to Doctor A and was recorded in
the pre-anesthesia consultation report of October 31, 2012. This report noted that the
use of spinal anesthesia in her 2008 operation was successful and that the patient is
presently a suitable candidate for anesthesia for the proposed knee replacement. The
last line in this report states that the “…final decision regarding anesthetic

management…” will be made by the attending anesthesiologist on the day of the
procedure.
[10] In his response the Registrant noted that he had no specific recall of the patient
and that his response would be based on the medical records and on his usual practice.
The Registrant reported that he would have reviewed the pre-anesthesia consultation
report and that he was aware of the patient’s preference for spinal anesthesia. He was
also aware of her medical condition and prior treatment related to her brain tumor. He
confirmed that having tried unsuccessfully to administer a spinal anesthesia he did
administer a general anesthesia and upon his turnover of the patient to the recovery
room her vital signs were stable.
[11] Doctor A submitted that while she “…cannot answer with certainty the cause of
her rapid decline postoperatively” she does, based on having been her doctor since
2004 and having seen her 4 to 6 times each year, believe that “…the turning point,
when she went from a relatively independent adult to a totally dependent and frail
elderly woman, occurred immediately postoperatively.” Doctor A noted that the patient
“…has suffered a rapid and grossly significant cognitive decline in the months following
(the surgery)”.
[12] Six months following the surgery the patient was seen by her neurologist (“Doctor
B”). He noted that “…she had quite a severe postoperative delirium and has never
really regained good cognitive function…” He reported they completed a neurological
exam on an urgent basis given her worsening condition. The conclusion Doctor B wrote
was that “…it does show significant leukoencephalopathy seen on her previous scans
without any clear significant worsening. There is no sign of recurrent tumor. There is
no subdural hematomas.” In the final assessment, Doctor B noted that the patient
“…has clearly slid in regards to her cognitive function and from the imaging it all points
to post treatment leukoencephalopathy as the likely cause.”
[13] In the course of their investigation the Inquiry Committee engaged an expert to
provide his opinion which they, in turn, relied upon. For reasons presented below I am
including significant portions of the expert opinion in this ruling.
[14] The expert opinion unequivocally highlighted the known risk of postoperative
delirium (“POD”) for this patient regardless of the form of anesthesia:
Use of regional anaesthetic techniques, instead of general anesthesia does not appear
to reduce the incidence of delirium.
Given the age of (the Patient) and her pre-existing cognitive changes and her visual
impairment, she would be considered as a high risk for developing POD. A spinal would
not have any advantages over general anesthesia in this regard…
Also, there appears to be no clear difference between regional and general anesthesia
(in regard to postoperative cognitive dysfunction (“POCD”))
[15] The expert opinion includes the following:

In (the Registrant’s) letter, he alleges that he would have discussed with (the patient) the
possibility of a failed spinal and a general anesthesia would be required. Given the
concerns of (the patient) regarding the effects of general anesthesia on her medical
conditions, it would have been of extreme value for (the Registrant) to have recorded the
verbal discussions as documentation in the medical record. (emphasis added)
[16] The disposition letter concluded by stating that “It is fair to say that no physician,
including (the Registrant), anticipated that your wife’s clinical course would unfold so
tragically.” It noted that the Registrant’s response was based on his medical
documentation and his usual practice. The letter further noted that her neurologist
reported that “…decline was attributed to post-treatment leukoencephalopathy.” In
conclusion the disposition letter noted that “An independent anesthesiologist reviewed
the care provided by (the Registrant) and determined that he met the standard required
of an anesthesiologist.”
[17] The application for review noted that much of the information provided by the
Registrant is not in the patient’s medical records and depends on the Registrant’s
assertions of his usual practice. Specifically the application notes that there is nothing
in the medical records that indicates that the Registrant discussed with the patient the
possibility of a failed spinal in which case a general anesthesia would be required.
V RELEVANT LEGISLATION, RUES AND POLICY
[18] The disposition in this matter was by the Registrar of the College pursuant to
s. 32(3)(c) of the Act, which under s. 32(5) of the Act is considered to be a disposition
by the Inquiry Committee.
[19] Section 50.6(5) of the Act defines what the Review Board must consider:
On receipt of an application under ss. (1), the review board must conduct a review of the
disposition and must consider one or both of the following:
(a) the adequacy of the investigation conducted respecting the complaint;
(b) the reasonableness of the disposition.
Section 50.6(6) of the Act stipulates that a review under this section is a review on the
record.
Section 50.6(8) of the Act stipulates that upon completion of its review under this
section, the review board may make an order:
(a) confirming the disposition of the inquiry committee,
(b) directing the inquiry committee to make a disposition that could have
been made by the inquiry committee in the matter, or
(c) sending the matter back to the inquiry committee for reconsideration
with directions.

[20] The exclusive jurisdiction of the Review Board is provided in s. 50.63 of the Act:
50.63 (1) The review board has exclusive jurisdiction to inquire into, hear,
and determine all those matters and questions of fact, law and discretion
arising or required to be determined in a review or an investigation and
disposition under this Part and to make any order permitted to be made.
(2) A decision or order of the review board under this Part on a matter
in respect of which the review board has exclusive jurisdiction is final and
conclusive and is not open to question or review in any court.
[21] It is not within the jurisdiction of the Review Board to evaluate medical treatment,
the competency of the Registrant or to order any form of monetary award.
VI ADEQUACY OF THE INVESTIGATION
[22] The Review Board must, on review, determine the adequacy of the investigation.
The investigation that was undertaken by the Inquiry Committee need not have been a
perfect investigation but it must have been adequate. What is considered adequate will
differ from case to case depending primarily on the seriousness of the issues raised in
the complaint and the findings of the investigation.
[23] What constitutes an adequate investigation in the context of the Review Board
was well defined in Review Board Decision No. 2009-HPA-0001(a) to 0004(a)
paragraphs [97] and [98] which reasoning I have adopted herein:
[97] A complainant is not entitled to a perfect investigation, but he or she is entitled to
adequate investigation. Whether an investigation is adequate will depend on the facts.
An investigation does not need to have been exhaustive in order to be adequate,
provided that reasonable steps were taken to obtain the key information that would have
affected the Inquiry Committee’s assessment of the complaint.
[98] The degree of diligence expected of the College – what degree of investigation
was adequate in the circumstances – may well vary from complaint to complaint.
Factors such as the nature of the complaint, the seriousness of the harm alleged, the
complexity of the investigation, the availability of evidence and the resources available to
the college will all be relevant factors in determining whether an investigation was
adequate in the circumstances.
[24] The test of adequacy will be met if I am satisfied that the Inquiry Committee took
reasonable steps to obtain information relevant to their assessment of the complaint.
This test can be met without exhausting all possible avenues of pursuit in the quest for
investigative information.
[25] In this matter I find that, following receipt of the complaint on May 23, 2013, the
Inquiry Committee :
(a) Wrote the Complainant to explain the process of their review;

(b) Wrote separate letters to each of the Registrant, Doctor A (the General
Practitioner), the treatment centre for cancer and the Hospital where the
surgery was performed. In each case the Inquiry Committee requested
medical records of the patient and in the case of the Registrant the Inquiry
Committee also requested his response to the complaint. Each party
subsequently responded and provided the appropriate information;
(c) Provided the information that it obtained to the Complainant who then
responded with comments and additional information. The complainant’s
response was provided to the Registrant;
(d) On December 19, 2013, requested the opinion of a third party expert
anesthesiologist which was received on January 14, 2014; and,
(e) Provided their disposition letter on January 27, 2014 and properly informed
the parties of their disposition.
[26] I find that the Inquiry Committee fulfilled the requirements of the Act in their
assembly of information and took all reasonable steps to properly obtain the information
required for their decision in this matter. Given the nature of the complaint and the
seriousness of the harm alleged the Inquiry Committee took the appropriate steps
required for their review of the complaint.
[27] Given the nature of this Complaint and the seriousness of the harm alleged, and
after considering the entire record, I find that the investigation by the Inquiry Committee
was adequate.
VII REASONABLENESS OF THE DISPOSITION
[28] The Review Board is provided by legislation with the exclusive jurisdiction to
define and apply “reasonableness” within the context of reforms of the Act whose
purpose it is to ensure an appropriate degree of accountability on the part of the Inquiry
Committee. The Review Board is not to ignore what the Inquiry Committee has done or
to step into its shoes. Rather the Review Board is to determine the degree of deference
to the Inquiry Committee that is appropriate in particular circumstances and as it is not a
court, the test of reasonableness will necessarily reflect the Review Board’s specialized
role and expertise.
[29] In my view, a functional definition of “reasonable” that accords with the current
state of the law is whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. A reasonable disposition
must be transparent in that it is clear as to how the Inquiry Committee arrived at its
conclusion, intelligible in that it is clearly expressed and easy to understand and justified
in that the reader should be able to understand the factual and legal foundation for the
Inquiry Committee’s conclusion. What is “sufficient” transparency, intelligibility and
justification in a particular case is to be determined by the Review Board on a case by
case basis, applying its expertise and specialized role in good faith, and not simply by
comparison to how a generalized court might apply the test.

[30] The Review Board is not to determine whether or not a disposition is one which it
would have made, nor is it to determine whether the Inquiry Committee decision was
right or wrong. The Review Board is to determine whether or not the disposition is
supported by the evidence arising from the investigation and whether or not it is one
which fits within the range of acceptable and rationale outcomes as outlined above.
[31] Having engaged an expert for his opinion and then writing in the disposition letter
that the Inquiry Committee accepted the expert opinion, I find several instances which
are examined below, where there are deficiencies in the essential criteria of
transparency, intelligibility or justification as between the expert opinion, the record and
the disposition letter. While being careful not to step into the shoes of the Inquiry
Committee, I am charged with determining the reasonableness of the disposition and to
that end I have the concerns which are documented below.
[32] In the Conclusions section of his opinion the expert provided a specific, critical
comment regarding the Registrant not documenting his discussion with the patient,
which the expert characterized as especially significant given the patient’s concern
regarding the anesthesia (paragraph [15]). The disposition letter makes no reference to
this conclusion of the expert. In the Statement of Points to this hearing the College
submitted that while it “…does not disagree with the expert that this would have been
valuable … the College was not critical of the Registrant for not including such a note as
the hospital records document a comprehensive pre-operative consultation with another
anesthesiologist which notes the preference (for a spinal anesthesia).” In his Statement
of Points the Registrant submits that his pre-operative medical record indicated that the
patient had a “challenging looking back, with no real landmarks” and that this meant he
“…would have advised (the patient) that a spinal anaesthetic may not be possible and if
so, a general anaesthetic would be required.” This submission by the Registrant is
made with his full acknowledgement that he has no independent recollection of the
patient.
[33] The expert had access to the same records as are referred to by the College and
the Registrant in considering the matter of what was recorded. The disposition letter is
unqualified in accepting the expert opinion. In considering the College submission
regarding the role of the pre-operative consultation I note that the final paragraph of that
document allocates the final decision regarding anesthetic management to the
Registrant. I find that this obligation to make the final decision is clearly placed on the
Registrant, a fact which the Inquiry Committee noted in the disposition, and therefore
also find it to be a major obstacle to transparency and intelligibility for the College on the
one hand to argue that the decision was the Registrant’s to make, but then on the other
hand to implicitly reject the expert opinion that it would have been “…of extreme
value…” for the Registrant to have documented his discussion. I consider it
unsatisfactory that the Inquiry Committee did not address any aspect of this in the
disposition.
[34] In considering the Registrant’s assertion that his note of a “…challenging looking
back…” meant he would have discussed the form of anesthesia with the patient, I find

that this is not a compellingly logical argument in response to the expert opinion. The
expert had access to the original records which included this notation by the Registrant
and yet he devoted a significant portion of his conclusions to stating his opinion that
“…it would have been of extreme value…” for the Registrant to have made a record of
his discussion. I find it extremely unlikely that the expert did not understand that this
phrase signified major difficulties existed in administering the spinal injection. Having
considered the record, the expert made his notation; therefore, the Registrant’s
assertion does not rebut the concern of the expert. If the notation had the same
meaning to the expert as it does to the Registrant then the expert would have had no
basis to make his recommendation for better documentation.
[35] To compound this there is no consistency between the College’s interpretation of
the record in this matter, the Registrant’s assertion and the expert opinion. In order to
meet the standard of being intelligible and transparent I find that the Inquiry Committee
needed to disclose how they considered this aspect of the expert opinion, and provide
the rationale for why they concluded that it did not apply to the Registrant in a manner
that is supported by the evidence.
[36] The expert opinion was unequivocal in stating that the patient, given her
condition prior to surgery, was at a high risk of developing post-operative delirium
regardless of the form of anesthesia (paragraph [14]). The record shows that this
elevated risk was not disclosed to or discussed with the patient during the pre-
anesthesia consultation or by the Registrant prior to surgery. The Registrant reported
that he would have reviewed the pre-anesthesia report. In his review the Registrant
would presumably have noted that the pre-operative anesthesiologist did not discuss
this elevated risk regardless of the form of anesthesia. The Inquiry Committee appears
to have not considered the question as to why the Registrant did not disclose to the
patient that she had a higher than normal degree of risk for post-operative delirium
regardless of the form of anesthesia and that her preference for spinal anesthesia was
not grounded in fact as it did not change the risk profile. Rather the Registrant appears,
by the record, to have let the patient undergo elective surgery ignorant of the fact that
the form of anesthesia did not change her risk profile.
[37] Given the duty to protect the public (s. 16(1)(a) of the Act) that is the statutory
responsibility of the College, I find the absence of transparency on this aspect of the
decision to be sufficient, in and of itself, to render the decision not reasonable. If it is
not the anesthesiologist’s responsibility, in this case the Registrant, to ensure that the
patient knows the risks of anesthesia given the conditions that are unique to that
patient, then the Inquiry Committee needs to have provided the rationale for why it is
not, and by extension, who does bear that responsibility
[38] In the disposition letter the Inquiry Committee wrote that no physician could have
“…anticipated that your wife’s clinical course would unfold so tragically.” Given the
expert opinion regarding the high level of risk of post-operative delirium for this patient,
there is nothing presented in the disposition letter that provides the reader with a logical
flow of reasoning which explains how the Inquiry Committee reached this conclusion.

Given that the expert clearly knew of the elevated risks for this patient, the Inquiry
Committee would need to have provided a logical pathway that reconciles their
conclusion (that no physician could have expected the tragic outcome that occurred)
with the fact that at least their own expert appears to have known that POD was highly
likely in this case.
[39] The disposition letter notes that the Registrant concluded that “There was no
contraindication to proceeding with knee surgery.” The disposition letter and the record
state that the surgery in this case was elective and the expert opinion states that this
patient had a high level of risk of developing POD from any form of anesthesia.
Applying only layman’s logic to the analysis I am left to consider what would constitute a
contraindication (“a sign that someone should not continue with a particular medicine or
treatment because it is or might be harmful” (Cambridge Dictionaries Online)) if not the
facts in this case. If there is a logical basis for supporting the conclusion that there
indeed was no contraindication then the disposition letter must provide the analysis that
allows the reader to understand what is meant by “contraindication” and how elective
surgery in light of the risks in this case, does not meet the standard of a
“contraindication”.
[40] The disposition letter includes information provided by Doctor A in regard to the
“…rapid and grossly significant cognitive decline…” of the patient immediately following
the surgery (paragraph [11]) and her loss of ability to function as an independent
person. The expert opinion focused on the elevated risk of POD with any form of
anesthesia for the patient and discussed this issue in some detail. The expert referred
to the report from Doctor B which linked the onset of severe post-operative delirium and
the loss of cognitive function to when the patient was awoken from the general
anesthetic, then referenced that their imaging showed significant leukoencephalopathy
“…without any clear significant worsening” and “…from the imaging it all points to post
treatment leukoencephalopathy as the likely cause” without specifying to which
treatment he was referring. The disposition letter’s conclusive comment is that “We can
only state that (the Registrant) acted reasonably when he made the decision to give
your wife a general anesthetic.” The Registrant then argued in his Statement of Points
that the patient’s “…decline was unrelated to the care provided by (the Registrant).”
[41] I am struck by the apparent lack of consistency in the evidence and submissions
as to the impact of the anesthesia, the on-set of post-operative delirium, the impact of
the unchanged extent of leukoencephalopathy and the lack of precision in regard to
which treatment was being referenced by Doctor B. For this reason I find that the
disposition letter needs to be significantly more precise in establishing a line of
reasoning in support of the conclusion that an anesthesiologist meets the standard of
care by deciding to change from a spinal to a general anesthesia in this case.
[42] In the disposition letter the Inquiry Committee provided the following statement:
An independent anesthesiologist reviewed the care provided by (the Registrant) and
determined that he met the standard required of an anesthesiologist.

The actual wording in the expert opinion regarding the standard of care is:
There was no departure from the standard of care for (the Registrant’s) decision to
proceed with a general anesthesia when he was not able to secure spinal anesthesia…
Unless the standard of care of an anesthesiologist is limited to the decision between a general
and a spinal anesthesia, then the expert opinion does not support the generalized statement
that is attributed to it by the Inquiry Committee. By attributing the generalized standard of care
to the expert rather than to a reasoned conclusion by the Inquiry Committee, the disposition
letter cannot be deemed to have met the logical standard of consistency with the evidence in
the record as the expert did not offer a generalized opinion on the standard of care but rather a
narrow one.
[43] I find that the disposition letter has failed to meet the basic requirements of
transparency, intelligibility and justification on significant and material matters of fact
and logic such that the record before me does not adequately support the conclusions
in the disposition and therefore the disposition is not reasonable. In returning this
matter to the Inquiry Committee I direct that the issues identified above be addressed
and a revised disposition letter be provided which resolves the inconsistencies as noted
herein.
VIII CONCLUSION
[44] Having determined, for the above reasons, that the investigation was adequate
and that the disposition was not reasonable, I return the disposition to the Inquiry
Committee, pursuant to s. 50.6(8)(c) of the Act, with the direction to issue a revised
disposition letter that meets the basic requirement of a reasonable decision as defined
above and which resolves the concerns expressed herein.
“Lorne R. Borgal”
Lorne R. Borgal, Panel Chair
Health Professions Review Board
March 17, 2015

2014-HPA-027(a)

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