Ontario health review board disagrees with committee decision that patient’s complaint is vexatious

The decision to take no further action on the patient’s complaint based on it being frivolous and vexatious was unreasonable, the majority of the panel of the Health Professions Appeal and Review Board of Ontario has found.

In Abdalla v Lee, 2021 CanLII 34904 (ON HPARB), the respondent doctor treated the applicant, who was experiencing stomach pain and nausea, with intravenous Zofran and ordered an abdominal ultrasound and various tests on her in September 2019. She was discharged in the evening of the same day.

The applicant claimed that, because of this medical treatment, she suffered from a severe headache, abdominal pain, vomiting, diarrhea, dizziness, drowsiness and blurred vision and needed to visit her family doctor and two other physicians to undergo blood work and urine tests.

The applicant’s complaint submitted that the respondent did not give her the proper care and worsened her condition and symptoms. The applicant also alleged that the respondent administered the wrong medication or poisoned medication, tried to “scrub her DNA” by giving her Gravol and was paid to kill her to steal her identity.

The Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario notified the applicant that it intended to take no action and gave her 30 days to provide written submissions, pursuant to s. 26(4) of the Health Professions Procedural Code, which is Schedule 2 of the Regulated Health Professions Act, 1991, SO 1991, c 18.

Upon considering the written submissions, the committee decided to take no action on the complaint under s. 26(5), finding that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process under s. 26(4) and that the applicant’s allegation on its face was not credible and was incapable of proof.

Upon a request for review of the committee’s decision, the majority of the panel of the Health Professions Appeal and Review Board of Ontario ruled that the committee’s determination was unreasonable, returned the decision to the committee and required the committee to conduct an adequate investigation and to issue a further decision.

The board found that the committee failed to address the core of the applicant’s complaint, which was her concern over the respondent’s clinical care and treatment. Instead, it focused on the applicant’s corollary complaints and comments, including her allegation that the respondent wanted to kill her. The committee should investigate the core allegations and should not dismiss them as frivolous and vexatious on the sole basis that they are interlaced with those corollary allegations, the board said.

The board determined that the applicant’s allegations about the respondent’s clinical care, as described in her complaint and her submissions to the committee, were appropriate subjects of a complaint. The committee should have taken steps to investigate these claims, the board found.

One board member concurred concerning the majority’s statement that dismissing a complaint as frivolous, vexatious or an abuse of process is reserved for the clearest cases but dissented regarding the majority’s decision to order an investigation. Such an investigation would be of little value because the committee had enough information to make its determination and because the applicant’s core allegation regarding clinical care and her corollary complaints and comments were inextricably entwined, said the dissenting member.