J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 49.21 OF THE SASKATCHEWAN MEDICAL CARE INSURANCE ACT, R.S.S. 1978, C.S-29 FROM JULY 21, 1992 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE BETWEEN: CARLOS D.R. HUERTO and THE MINISTER OF HEALTH, THE DIRECTOR OF PROFESSIONAL REVIEW AND THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE RESPONDENTS B.J. Scherman for the appellant D.S. Tapp for the respondents JUDGMENT HUNTER J. June 29, 1994 This is another appeal in a series of cases wherein amedical doctor has been reassessed and ordered to repay moneyfor billings already received as a result of services providedto patients. The Saskatchewan Medical Care Insurance Act,R.S.S. 1978 c. S-29 ("the Act") provides that a physicianaggrieved by an order of the joint medical professional reviewcommittee ("the Committee") may appeal to a judge of the Courtof Queen\'s Bench. There is no further right of appeal. Theappellant, Dr. Huerto ("Huerto"), has been reassessed andordered to pay $384,635.44. The grounds of appeal can be summarized as follows: [1]The committee did not have jurisdiction to enter into the investigation of Huerto. [2]Huerto had reasonable apprehension of bias in respect of Dr. Orchard as member of the committee. [3]The committee committed an error of law and misinterpreted the empowering legislation and their duty under that legislation. [4]The committee exceeded its jurisdiction by basing its decision on irrelevant considerations and thereby abused its discretion and further acted on inadequate materials. [5]There was no evidence to support the decision of the committee on the merits. Before discussing the factual circumstances, the recent decisions in this court establish the following as the grounds on which this court will interfere with the decision of the committee, namely: [1] (a)It exceeded or failed to exercise its jurisdiction; (b) It failed to observe the rules of natural (c) It made an error of law; (d)Its findings were not reasonably supported by the evidence and the material which it was entitled in law to consider. (see: Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 1990 CanLII 7328 (SK QB), 85 Sask. R. 42 (Sask. Q.B.) Wedge J.; Barber v. Saskatchewan (Minister of Health) et al. (1991), 94 Sask. R. 37 (Sask. Q.B.) Baynton J.) [2] With respect to the factual findings of the committee, the court must critically examine the evidence and ask whether, taken as whole, it reasonably supports the findings of fact, i.e. examine the reasons by the committee carefully to see whether its ultimate decision is based on reasonable findings of fact. (see: Malhotra v. The Joint Medical Professional Committee, Sask. Q.B., Q.B. 981/90, J.C. Prince Albert, January 22, 1992, Wimmer J. (unreported) and Minhas v. Saskatchewan (Minister of Health) et al. (1992), 102 Sask. R. 171 (Sask. Q.B.) Noble J.) The relevant sections of the Act are as follows: 49(1) There is to be committee called the joint medical professional review committee the majority of the members of which are physicians not employed by the Government of Saskatchewan. 49.1(1) The minister shall appoint person as the Director of Professional Review for the purposes of sections 49 to 49.2(1) In this section and in sections 49.3 to 49.9, "committee" means the joint medical professional review committee established by section 49. (2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the (3) Where the committee considers matter referred to it pursuant to subsection (2) to warrant investigation by the committee, it shall serve the physician with written notice of its intention to investigate. (5) Where matter has been referred to the committee pursuant to subsection (2), the committee may order that: (a) in the case of insured services for which payment has not been made by the minister, payment should not be made, or should be made at reduced level, for all or any part of the services; (b) in the case of insured services for which payment has been made by the minister, all or part of the amount paid by the minister should be recovered from the physician. (8) In determining whether an order should be made pursuant to subsection (5) or (7), the committee may take into account anything that it considers relevant, including statistical or other comparison between the provision of insured services by the physician whose insured services are being considered and the provision of insured services by other physicians or groups of physicians, but it is not required to examine the provision of any individual insured service that has been provided by the physician. (10) In making an order pursuant to this section, the committee shall observe the rules of natural justice. 49.21(2) The judge hearing the appeal shall consider only the record of the proceedings of the committee with respect to the order appealed from and the evidence presented at those proceedings and may make an order: (a) affirming or varying the order appealed from; (b) refering[sic] the matter back to the committee with directions to reconsider it; or (c) quashing the order appealed from and substituting any order that the judge considers the committee ought to have made. Now to the facts of this case. By letter of October, 1990, the College of Physicians and Surgeons wrote to the Chair of the Committee and expressed concerns related to Huerto's pattern of practice and pattern of billing, as follows: [1]Excessive utilization of diagnostic tests and procedures, particularly echocardiograms. [2]Billing for continuous personal attendance upon patients in his office for extended periods of time when he proceeded to concurrently attend to and bill for other patients. [3]Excessive frequency of patient review and consequent billing of 9D's and 5D's. By letter dated March 15, 1992, Huerto was advised that the Committee had received his pattern of billing at its meeting and enclosed the complete data package of his billings for the period March 28, 1989, to September 24, 1990, that it had reviewed. This letter constitutes the written notice of intention to investigate required by ss. 49.2(3) of the Act. The Committee described its mandate as follows: The Committee is charged with the responsibility of considering the billing patterns of physicians, where those patterns appear to be aberrant in comparison to the patterns of billing of their peers. The Committee must determine whether such aberrations are consistent with patterns of practice which are reasonable, under the conditions prevalent in the individual practice and in comparison to the peer group. Following its review of his pattern of billing, the Committee remained concerned about certain aspects of Huerto's billing, such as the [1]high rate of contacts per patient; [2]high cost per patient; [3]high rate of partial assessments; [4]high rate of consultations compared to the group mean for specialists in internal medicine. The Committee asked for Huerto's comments and he replied on April 24, 1991. Huerto explained that his cardiology practice was unique in nature because he did not have hospital privileges. This coupled with his philosophy of treatment (i.e. he attempts to have his patients modify their lifestyle) requires that he administer many more tests to monitor his treatment program and he also has more frequent contact with his patients. This in his view accounted for the high rate of contacts and consultations with his patients relative to his peers. The Committee responded by advising that hearing was scheduled for September, 1991, and further stated that Dr. R.C. Orchard was appointed temporary member of the committee. Counsel for Huerto protested the appointment of Dr. Orchard on the basis of reasonable apprehension of bias for the following reasons: [1]Dr. Orchard testified against Huerto in disciplinary proceedings before the College of Physicians and Surgeons; [2]Dr. Orchard rendered opinions to St. Paul's Hospital which were critical of the care and management given to patient by Huerto and impacted on Huerto's application for permanent privileges at St. Paul's Hospital; [3]Dr. Orchard had rendered opinions to the College of Physicians and Surgeons wherein he was critical of Huerto's care and management of patients; [4]Dr. Orchard was cardiologist in private practice in Saskatoon and was in competition with Huerto. The Committee reaffirmed Dr. Orchard's appointment as temporary member. On April 10, 1992, the hearing proceeded before the Committee and was some seven hours in length. The hearing format consisted of the Committee questioning Huerto and the focus of the questions related to the frequency with which Huerto saw his patients and performed tests compared to the rate at which other cardiologists or internists carried out such procedures. On May 11, 1992, the Committee provided report of the meeting and draft of proposed order and requested Huerto to comment, following which it would finalize its decision. This report contained summary of the methods practised by Huerto and the explanation for the billing category for the services rendered by Huerto. The Committee noted the following with respect to Huerto's practice and made the following recommendations: [1]The rate of electrocardiogram services is nine times the next highest provider. Even allowing that other doctors use hospital services and the cost is absorbed by the hospital, it does not find justification for the discrepancy in the rate of payment. Accordingly reduction of 25 percent for the period March 28, 1989, and September 24, 1990, is proposed. [2]The rate of consultation services is more than three times the next highest provider. Since there was no justifiable reason for this difference from the group of cardiologists, reduction of 50 percent in the rate of payment for the same time period is proposed. [3]The rate of subsequent visit services is seven times the next highest provider. The Committee recognized some cost benefit in the out-patient rather than the in-patient style of practice. Accordingly, even though there is large discrepancy, reduction to 85 percent of the payment schedule is proposed. [4]The rate of electrocardiogram monitoring, technical and scanning services is five times the next highest provider. The Committee recognized that the out-patient style of practice would account for reasonable increase and accept rate of two and one-half times the average. Therefore, reduction of 50 percent in the rate of payment for the same time period is proposed. [5]The rate of Doppler services is three times the next highest provider. The Committee did not accept Huerto's practice for use of this procedure as being different from that recommended in the literature. Because of the nature of the out-patient practice, the Committee accepts an increased rate of two times the average. Accordingly, reduction of 50 percent in the rate of payment for the same time period is proposed. [6]The rate of exercise tolerance testing services is three times the next highest provider. Because of the out-patient style of practice, the Committee accepts rate of two times the average. Therefore, reduction to 50 percent in the rate of payment is proposed. The Committee recommended that no action be taken with respect to the continuous personal attendance billings or complete assessment billings. The Committee acknowledged there are some benefits to preventive medicine and to out- patient care but concluded that Huerto was not providing preventive or outpatient care as practised by primary care physicians. Accordingly, Huerto's "care is expensive without proven cost-effectiveness". The calculation of the proposed reassessment totals $384,635.44. Huerto responded to the Committee proposal by letter dated June 1, 1992. Huerto did not accept that he should be compared to cardiologists who have hospital privileges but rather submitted that he should be compared to other cardiologists who have an out-patient practice only such as he did. There is little doubt that Huerto believes in management of cardiovascular patients outside the hospital environment and believes that such patient management should be done by specialists and not family physicians. In addition, Huerto provided the Committee with an economic analysis done at his request by an accounting firm comparing Huerto's billings to those of ten other cardiologists in the province. In this report, there is an attempt to adjust the costs for before and after hospital days and the report concludes as follows: Based upon the information provided to us, the representations made by yourself and the assumptions noted herein It would appear that the services selected by the Committee for review do exceed the average per cardiologist in Saskatoon. However, comparison of each cardiologist's total costs per 100 patients before and after hospital days reveals that services provided by yourself are significantly lower than the average provided by cardiologists in Saskatchewan. The costs of services provided before taking into consideration the cost of hospital days does exceed the norm but this could be explained by the fact that your hospital days are significantly lower than the average for all cardiologists and you have made significant investment in medical equipment ($453,345) to provide additional services to your patients. The Committee responded to these further submissions by Huerto, including the economic analysis presented by the accounting firm. In particular, it was noted that Huerto's per patient cost was in excess of $1,000.00 while the average per patient cost of the other cardiologists used for comparison was $203.00. Following detailed review of Huerto's further submissions, the Committee did not vary its proposed orders. As noted above, the question is whether the Committeeexceeded or failed to exercise its jurisdiction, failed toobserve the rules of natural justice, made an error of law orwhether its findings were not reasonably supported by theevidence and the material which it was entitled in law toconsider. Counsel for Huerto requests that deal first with the decision on the merits as to whether the decision is reasonably justifiable on the evidence before the Committee. If am persuaded that there was insufficient evidence to support the conclusion of the Committee it would necessitate rehearing. The issue of whether the evidence taken as whole reasonably supports the findings of fact of the Committee is inextricably bound with the issue of whether the Committee committed an error of law in interpreting the Act and therefore, will deal with the two issues together. Huerto says the decision of the Committee should be set aside on the merits. In other words, there was insufficient evidence before the Committee to constitute proof that Huerto's delivery of medical services was unacceptable from medical perspective. He submits that since the Committee and Director led no evidence of "acceptable medical practice" then the Committee only had before it the evidence of Huerto that his approach was medically acceptable. Huerto contends that while statistical comparisons are provided for in the legislation, the Committee does not have an unfettered discretion with respect to the matters it considers to be relevant to the issue of what is an acceptable medical practice. He argues that what is acceptable must be defined in the context of what is acceptable within the context of medical knowledge and thought and not by reference to irrelevant considerations. He suggests such irrelevant considerations are economics, ease of administration, politics or other such criteria. Huerto contends the Committee erred in law and on the evidence when it placed significant emphasis on statistical comparisons when he says that such statistical comparisons are of little value when his approach to practice involves more extensive patient visits and testing procedures and no hospital care. Huerto says that the Committee must investigate his approach to practice to determine if it is within the range of legitimate schools of medical thought and his approach is an acceptable one. In other words, Huerto believes that the issue of competency and professional judgment are matters on which the Committee must adjudicate in order to determine what is an "acceptable medical practice". Huerto says this leads to the conclusion in this case that the committee misinterpreted the Act. The evidence, all of which was provided by Huerto, should lead the Committee to the inevitable conclusion that he is competent cardiologist and that his practice follows more closely that of American cardiologists rather than that of other Saskatchewan cardiologists. He followed the guidelines of The American College of Cardiology/American Heart Association and since there was no conflicting evidence advanced before the Committee, the Committee must conclude that his pattern of practice was acceptable. The Committee stated that competency was not in issue. Therefore, for the Committee to find that Huerto's practice was not acceptable means the Committee's sole criteria was statistical comparison. The question is whether the evidence before the Committee reasonably supports the Committee's findings. Huerto argues that the standard of review is not the judicial review standard, i.e. was the decision patently unreasonable, but that the standard is equated to the appellate review standard i.e. whether the Committee committed palpable or over-riding error that affects the validity of its decision. The Committee did consider the statistical variation shown in Huerto's practice as compared to the group of cardiologists. For example, that comparison showed that in his practice he conducted tests far more frequently than did like physicians, ranging from three times more often to nine times more often. Huerto's patient load was lighter in the number of different patients seen by other cardiologists and his patient load varied 37% of the mean for the group. As well, the number of contacts per patient was 425% higher that the group mean and the cost per patient was 556% higher than the group mean. These are extreme departures from the group mean. Huerto explained that these differences related to the fact that he had no hospital privileges and consequently he served his patients on an out-patient clinic basis and his purpose was to cause patients to change their lifestyle so as to prevent cardiology related problems. Huerto attempted to show that his overall cost was cheaper to the government when one considers the cost of hospital care and facilities as compared to an out-patient facility. He provided much of the testing equipment himself and the government was charged for his services to patients only and did not incur any cost to supply this testing equipment to him. Carried to its logical conclusion, this argument would result in physicians equipping their clinics like private hospital and in effect charging for the use of this equipment based on insured services under the Act for which physician may claim payment. Surely, the legislature did not intend this. The Committee pointed out the significant difference in cost per patients experience by Huerto as compared to other physicians in the group and did account for some of the difference with respect to the hospital care issue. As well, the Committee did take into account the fact that Huerto ran an out-patient facility and his style of practice and did not require that he be paid at the group mean. The Committee was selective with respect to each category of charges submitted by Huerto and gave reasons for its determination with respect to each category and the rational for its reassessment. There was evidence based on the comparison to the group from which the Committee could conclude that Huerto over-serviced his patients both with respect to frequency of contact and frequency of testing and it was open to the Committee to find that the extent of the deviations from the statistical data of the comparable group of physicians was not justified by Huerto. Huerto's deviations from the mean and the average and the top and low end of comparable providers of insured services were in some instances extreme deviations. Accordingly, there was evidence on which the Committee could fairly conclude that Huerto was paid by the Minister by reason of departure from pattern of medical practice acceptable to the Committee. The next basis for setting aside the Committee's decision is that Huerto contends the Committee committed jurisdictional error by undertaking the review at the request of the College of Physicians and Surgeons and not the Director, as required by s. 49.2 of the Act. This allegation overlooks the fact that while the letter from the College of Physicians and Surgeons may have alerted the Director to inquire into the pattern of billing of Huerto, the Director under his authority compiled statistical information (as shown in Exhibit "B" to the affidavit of the Director). This statistical data was then referred to the Committee, who considered the same at its March, 1991, meeting. Huerto was then advised by the Committee that it was reviewing his pattern of billing (see the letter of March 15, 1991). Huerto was provided with the complete data package which was presented to the Committee at its meeting in March, 1991. Therefore the letter from the College of Physician and Surgeons was in the nature of "complaint". This "complaint" was investigated by the Director who within his authority compiled the statistical information which was then reviewed by the Committee at its meeting in March, 1991. Accordingly, there is no factual foundation to support this allegation and the Committee did not exceed its jurisdiction in undertaking the review of Huerto's billing pattern. Huerto next contends that the presence of Dr. Orchard on the Committee gave rise to reasonable apprehension of bias. As such the decision of the Committee should be quashed for breach of the rules of natural justice. The applicable law in respect of bias in the context of this Act is stated in Milne v. Joint Chiropractic Professional Review Committee, 1992 CanLII 8304 (SK CA), [1992] W.W.R. 354 (Sask. C.A.) at p. 360 as follows: An administrative tribunal such as the committee is subject to the rules of natural justice and the rule against bias is one of the most fundamental elements of natural justice. person is entitled to have his cause determined by an impartial tribunal untainted by the knowledge of facts or by predetermined position to particular point of view which might affect the result. The underlying policy for such principle is that justice must not only be done but must manifestly and undoubtedly be seen to be done. and at p. 361: The test is whether reasonable person would believe that there is reasonable danger of bias or whether there would be reasonable suspicion of bias. Huerto acknowledges that there is logic in appointing an internist or cardiologist to committee investigating the pattern of billing of the medical practice of cardiologist. However, he says it should not have been Dr. Orchard because Dr. Orchard had on previous occasion testified as witness at disciplinary hearing conducted by the College of Physician and Surgeons involving Huerto. As well, Dr. Orchard gave evidence at hearing before the hospital board when Huerto's application for privileges at St. Paul's Hospital was being considered. Therefore, in two instances, Dr. Orchard testified as witness in two different proceedings involving Huerto. As well, Huerto objected to Dr. Orchard because he is in private practice in Saskatoon and Huerto considered him to be in competition with him. In the other proceedings, Dr. Orchard was witness and there is no evidence he participated in the decision making process. Therefore, Dr. Orchard had knowledge that two proceedings had been held but there is no evidence before me that he functioned in an adversarial or adjudicative function. The fact that in one instance he was critical of Huerto's care of one patient does not mean that he is biased against Huerto. It would appear that only ten cardiologists exist in Saskatchewan and with such small group it is probable that they have some information about each other and may be required to testify as witnesses in any other proceedings involving cardiologists. There is no indication that Dr. Orchard had access to confidential information concerning Huerto. It is clear from the correspondence from Huerto to the Committee that he had been subject to discipline proceedings before the College of Physicians and Surgeons and this would have been known to all Committee members. Huerto made it known that he did not have hospital privileges and again this would have been known by all Committee members. This does not mean that in the review of billing pattern that there is an apprehension of bias. There is nothing to suggest that Dr. Orchard had knowledge of facts that the other members of the Committee did not have or that he had predetermined position to particular point of view that would affect the outcome on review of Huerto's billing pattern under the Act. Huerto, in his argument before the Court, suggested that he is suspicious that Dr. Orchard is behind the complaints to the College of Physicians and Surgeons about him. This is speculation and is not based on any facts put before this Court. Accordingly, do not accept that there was reasonable apprehension of bias with respect to Dr. Orchard. There was not breach of natural justice and Huerto is not entitled to have the decision set aside on this basis. Further, Huerto contends the Committee violated the "presumption against retroactivity". Huerto says that under the Act, he is entitled to bill for and be paid for insured services he carried out. Only after payment has Huerto been informed the Committee views the frequency of his patient contact and testing as an unacceptable medical practice. Huerto argues that if the Commission establishes criteria that only specified number of procedures on patient within given time period will be paid for, it is entitled to do so, but not subsequent to the rendering of services by doctor. He argues that after the fact his medical practice is being questioned. Huerto says that he was only exercising his best professional judgment, which the legislation specifically states he is entitled to do. It is true that the purpose of the Act is not to diminish the exercise of professional judgment by physician. But the Act specifically provides that regulations may be made prescribing the rates of payments to be made to physicians and methods of assessing accounts submitted by physicians. As well, the Act clearly provides that the Director may refer to the Committee any matter where he believes that physician has been paid money by reason of any departure from pattern of medical practice acceptable to the Committee. The Committee is given the power to order any part of the amount so paid by the Minister to be recovered from the physician. Therefore, the Committee is given the power to examine, in specific instance, the pattern of billing and the medical practice of physician who has received payment for insured services under the Act and to determine whether it is acceptable to the Committee. The legislation has given this power to the Committee and accordingly, there is no basis for setting aside the decision on this basis. Next, Huerto contends, the Committee exceeded its jurisdiction by abusing its discretion. In particular, Huerto claims the Committee interpreted the legislation such that economic considerations prevailed over the professional judgment of the physician and it was the economic considerations that dictated what was the "acceptable medical practice". In this respect, Huerto says the Committee emphasized the statistical variation with other cardiologists. Further, it gave undue consideration to the economic criteria, which is not directly related to the issue of medical care, and concluded that Huerto's pattern of medical practice was not acceptable to the Committee. The Act provides that the Committee may take into account statistical or other comparisons between the services of the physician with respect to whom they are conducting review and the services of other physicians or groups of physicians. As well, the Director refers matters to the Committee on the basis of money paid or about to be paid to physician for insured services which he believes may represent departure from pattern of medical practice which is acceptable. In other words, the tenor of those sections of the Act is to govern the payment to physicians for insured services. This necessarily emphasizes the economic considerations. Furthermore, Huerto provided the Committee with lengthy and detailed economic analysis in an attempt to show the Committee that his method of frequency of patient contacts and testing was more economical than cardiologists who had hospital privileges. There is no question but that it is acceptable for the Committee to examine billing patterns and to review how the pattern of one physician differs from another physician or group of physicians. The Committee had hearing to give Huerto the opportunity to explain the deviations it observed in his billing pattern as compared to group of physicians. Again, the legislation puts the emphasis on the payment for insured services and the Committee did not abuse the discretion vested in it by the legislation in conducting the review and hearing with respect to this matter and did not exceed its jurisdiction. The Committee did not commit any palpable and over-riding error and there was evidence to support its conclusionon the merits. The Committee did not decline or exceed itsjurisdiction and did not commit an error of law. Accordingly,there is no basis for interfering with the decision of theCommittee and the appeal is dismissed.
Dr. Huerto appealed a decision of a Joint Medical Professional Review Committee, pursuant to which he was ordered to repay approximately $384,000.00 to Saskatchewan Health. HELD: Appeal dismissed. 1)The legislation provides for an appeal to the Court of Queen's Bench and for no further appeal. Such an appeal can be taken on the following grounds: (a)the committee exceeded its jurisdiction; (b)it failed to observe the rules of natural justice; (c)it made an error of law; (d)its findings can not be reasonably supported by the evidence which it was entitled to consider. 2) The Court found no error of jurisdiction or failure to observe the rules of natural justice. 3)The Court found no palpable or overriding error in the facts as determined by the Committee based on the evidence.