Huerto v. College of Physicians and Surgeons (Sask.), (2004) 253 Sask.R. 1 (QB)

• Judge: G.A. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 03, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 253 Sask.R. 1 (QB);2004 SKQB 360

Huerto v. College of Physicians (2004), 253 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. SE.017

Carlos Huerto (applicant/appellant) v. The Council of the College of Physicians and Surgeons of Saskatchewan (respondent/respondent)

(2000 Q.B.G. No. 795; 2004 SKQB 360)

Indexed As: Huerto v. College of Physicians and Surgeons (Sask.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

G.A. Smith, J.

September 3, 2004.

Summary:

The Discipline Committee of the College of Physicians and Surgeons found Huerto guilty of 14 charges of unprofessional conduct respecting treatment of three patients. Huerto was suspended from practice for the period of time of his interim suspension pending the Council's decision (14 months), prohibited from providing certain therapies, except under certain conditions, and ordered to pay $172,600 toward the total costs incurred by the College respecting the investigation and hearing. Huerto appealed the College's decision and the penalty and the costs imposed.

The Saskatchewan Court of Queen's Bench allowed the appeal in part.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Evidence - Topic 7000.2

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Bias - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of 14 charges of unprofessional conduct respecting three patients - Huerto appealed one charge involving the patient Friesen, arguing that the Committee erred by failing to discount all of the evidence of an expert for the College (Wells) based on bias - Wells had been one of the attending physicians for Summach, another patient whose treatment by Huerto had been the subject of a number of charges before they were subsequently withdrawn at the commencement of the hearing - Wells had not made any connection between the case of Summach and Huerto until he was reminded of it during his testimony by Huerto's counsel - The Committee concluded that Wells did not have a true conflict of interest respecting the testimony about Friesen and that it was in a position to properly evaluate his evidence - The Saskatchewan Court of Queen's Bench held that the Committee did not err in concluding that it could receive Wells' evidence and evaluate its credibility in the context of all of the evidence received - See paragraphs 66 and 67.

Medicine - Topic 2024

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - What constitutes - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of, inter alia, unprofessional conduct respecting a patient (Friesen) - The Committee found that Huerto advised the family that Friesen was in stable condition, after he was admitted to emergency, when this conclusion was unwarranted (he died) - Therefore, he unduly compromised accuracy - The Saskatchewan Court of Queen's Bench allowed Huerto's appeal respecting this charge - The Committee failed to turn its mind to the question of whether Huerto's conduct was sufficiently serious to constitute unprofessional conduct - There was no discussion in the Committee's decision of the question of whether this lapse might be considered a mere error of judgment, or a negligent lapse not sufficiently serious to constitute unprofessional misconduct - See paragraphs 73 to 75.

Medicine - Topic 2052

Discipline for professional misconduct - Discipline - Order to pay costs of proceedings - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of 14 counts of unprofessional conduct respecting three patients - He was originally charged with 31 counts involving four patients - The counts involving the fourth patient (Summach) were withdrawn during the Committee hearing - He was ordered to pay costs of $172,600 toward the total costs of $205,608 of the College respecting the investigation and hearing - Huerto appealed - The Saskatchewan Court of Queen's Bench allowed the appeal respecting the one count that the Committee had found to have been established respecting the patient Friesen - Therefore, all of the investigation and hearing costs respecting Friesen and Summach should not have been incurred - The court ordered that the costs payable be recalculated - See paragraphs 102 to 106.

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of unprofessional conduct respecting three patients - Huerto appealed - The Saskatchewan Court of Queen's Bench stated that most of the factors leading to the conclusion in Dr. Q, Re (S.C.C.) that the standard of review was reasonableness simpliciter were indistinguishable from this case - Although there was a statutory right of appeal (Medical Profession Act, s. 62(3)), the determination at first instance was intrusted by the legislature to a body charged with professional self discipline - Two members of the disciplinary tribunals were physicians and members of the College and the Committee was chaired by a dean of law - Thus, the Committee was able to bring professional expertise to the evaluation of the evidence before it and the determination of the standard to be required of a physician - Further, the conclusions of the Committee were challenged primarily on the bases of its findings of fact or its conclusions of credibility - All of these considerations lead to the conclusion that a degree of deference between the standard of correctness and that of patent unreasonableness was appropriate in this case, at least respecting challenges to the Committee's factual and credibility determinations - See paragraphs 21 and 22.

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of unprofessional conduct respecting three patients - Huerto appealed - The Saskatchewan Court of Queen's Bench stated that the Committee's determination of whether certain conduct was sufficiently serious to constitute unbecoming, improper, unprofessional or discreditable conduct within the meaning of the Medical Profession Act was subject to the standard of judicial review of reasonableness simpliciter, for this issue engaged the expertise of the Committee as it was structured (two physicians and a dean of law) - The Committee's ability to bring its experience and expertise to bear on this issue must be seen as one of the principal reasons that disciplinary decisions were left by the legislature to the professional self governing body - See paragraph 25.

Medicine - Topic 2125

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting punishment - Costs - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of unprofessional conduct respecting three patients - Huerto appealed respecting the order that he pay costs of $172,600 toward the total costs of the College respecting the investigation and hearing - The Saskatchewan Court of Queen's Bench stated that there was no statutory right of appeal under the Medical Profession Act against an order for costs and the Council of the College was, clearly, an expert body - However, there was no privative clause restricting judicial review - The primary consideration in applying the pragmatic and functional test was the nature of the question at issue - Orders for costs were, traditionally, discretionary - The statute gave the College broad discretion respecting the imposition of costs - The appropriate standard of review was that of patent unreasonableness - See paragraph 103.

Medicine - Topic 2188

Discipline for professional misconduct - Punishments - Interim suspension - The Discipline Committee of the College of Physicians and Surgeons (Sask.) found Huerto guilty of 14 charges of unprofessional conduct respecting three patients - The conduct included administering certain therapies in manner that fell outside the standards of the profession, careless and inaccurate compilation of accounts, failing to maintain accurate medical records and falsifying a patient's medical records - The College upheld the Committee's findings and, following the Committee's recommendations, imposed a suspension from December 10, 1998 to February 11, 2000 (i.e., the time of his interim suspension in advance of the Committee hearing, findings, and determination of the penalty) - He was also prohibited from administering certain treatments except in emergency situations - Huerto had been found to have engaged in unprofessional activity on two prior occasions - The Saskatchewan Court of Queen's Bench held that it was unable to conclude that the penalties imposed did not meet the standard of reasonableness simpliciter - See paragraphs 98 to 101.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 12].

Brand v. College of Physicians and Surgeons (Sask.) (1990), 86 Sask.R. 18 (C.A.), refd to. [para. 12].

Sood v. College of Physicians and Surgeons (Sask.) (1995), 139 Sask.R. 36 (Q.B.), refd to. [para. 17].

Huerto v. College of Physicians and Surgeons (Sask.) (1994), 124 Sask.R. 33 (Q.B.), refd to. [para. 17].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 18].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 223 D.L.R.(4th) 599; 2003 SCC 19, refd to. [para. 18].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577; 2003 SCC 20, refd to. [para. 18].

Brand v. College of Physicians and Surgeons (Sask.) (1991), 101 Sask.R. 143 (Q.B.), refd to. [para. 104].

Counsel:

Nicholas J. Stooshinoff, for the appellant;

Bryan E. Salte, for the respondent.

This appeal was heard by G.A. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on September 3, 2004.