ONTARIO CITIZENS BEWARE!
THE HEALTH PROFESSION APPEAL AND REVIEW BOARD MERELY
PRETENDS TO BE AN AVENUE FOR A CITIZEN TO QUESTION A DECISION FROM THE
ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS. WHEN HPARB RENDERS ITS
DECISION AND PLACES IT ON THE PUBLIC REGISTER, THE SURGEON’S NAME IS
REPLACED WITH HIS INITIALS “LK”.
SO, HOW CAN THE CITIZENS OF ONTARIO BE WARNED WITH RESPECT TO THIS SURGEON??
HPARB HAS MERELY CONTINUED THE COVER-UP OF NEGLIGENCE CAUSING DEATH.
Health Professions Appeal and Review Board
In reply please quote: File # 13-CRV-0052
July 31, 2013
Ontario
CONFIDENTIAL
Mr. Arnold Kilby Mr. Byron Shaw
Applicant Counsel for Respondent
Dear Mr. Kilby and Mr. Shaw
RE: COMPLAINT REVIEW - MEDICINE
ARNOLD KILBY AND LAZAR VICTOR KLEIN, MD
Enclosed herewith is a true copy of the Decision and Reasons of the
Health Professions Appeal and Review Board in the above-noted matter.
While your file is now closed, please note that parties to Complaint
Reviews of the Health Professions Appeal and Review Board have the right
to request a judicial review of the Board's decision. You may wish to
consider obtaining legal advice to determine what options are available
to you. To request a judicial review contact the Divisional Court at
416-327-5100.
Yours sincerely,
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD
ARNOLD W. KILBY -- THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD
FAILED TO INVESTIGATE MY COMPLAINT. THEIR OWN PROCESSES AND UNTIMATE
DECISION ARE “UNREASONABLE” AND “INADEQUATE”
SO, HOW THEY ARRIVED AT THEIR CONCLUSION THE COLLEGE’S THIRD DECISION WAS “ADEQUATE” AND “REASONABLE” IS AN ABSOLUTE MYSTERY??
Anna Dunscombe Case Officer
Encl: Decision dated July 31, 2013
cc: College of Physicians and Surgeons of Ontario (CPSO File # 86981)
I HAVE NOT STATED ANYTHING THAT WAS NOT INCLUDED IN MY THIRD APPEAL SENT TO HPARB
151 Bloor Street West, 9th Floor Toronto, Ontario M5S 1S4
Tel/Tele 416-327-8512 Toll free/Sans frais 1-866-282-2179
TTY/ATS 416-326-7TTY(889)
TTY Toll free/ATS sans frais 1-877-301-OTTY(889)
Facsimile/Telecopieur 416-327-8524
151, rue Bloor ouest, 9° etage Toronto, Ontario M5S 1S4
File# 13-CRV-0052
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD
PRESENT:
Thomas Kelly, Vice-Chair, Presiding Stephen Jovanovic, Vice-Chair Brenda Petryna, Board Member
Review held on June 5, 2013 at Toronto, Ontario
IN THE MATTER OF A COMPLAINT REVIEW UNDER SECTION 29(1) of the Health
Professions Procedural Code, Schedule 2 to the Regulated Health
Professions Act, 1991, Statutes of Ontario, 1991, c. 18, as amended
BETWEEN:
ARNOLD KILBY
Applicant
and
Respondent
Appearances:
The Applicant:
Support for the Applicant:
Support for the Applicant:
Support for the Applicant:
For the Respondent:
For the College of Physicians
and Surgeons of Ontario:
LAZAR VICTOR KLEIN, MD
Arnold Kilby
Murray Kilby
Hilda LeBlanc
Maie Liiv
Katherine Booth, Counsel
Angela Bates (by teleconference)
DECISION AND REASONS
I. DECISION
1. It is the decision of the Health Professions Appeal and
Review Board to confirm the decision of the Inquiries, Complaints and
Reports Committee of the College of Physicians and Surgeons of Ontario
to:
(i) advise Lazar Victor Klein, MD, to continue to consider
the use of prophylactic antibiotics at the time of conversion from
laparoscopic procedure to open laparotomy based on the evolving standard
of practice;
(ii) advise Lazar Victor Klein, MD, to individualize the use of pre-operative
prophylactic antibiotics for patients where it is warranted based on the evolving standard of practice; and
(iii) counsel Lazar Victor Klein, MD, on the timely documentation of discharge summaries.
2. This decision arises from a request made to the Health Professions
Appeal and Review Board (the Board) by Arnold Kilby (the Applicant) to
review a decision of the Inquiries, Complaints and Reports Committee
(the Committee) of the College of Physicians and Surgeons of Ontario
(the College). The decision concerned a complaint regarding the conduct
and actions of Lazar Victor Klein, MD (the Respondent). The Committee
investigated the complaint and decided to counsel and advise the
Respondent as described above.
II. BACKGROUND
3. This is the third Review by the Board of this matter.
4. On July 21, 2006, the Applicant's daughter, Ms. Terra Dawn Kilby
(the patient), died at the age of twenty-eight following her discharge
from the Humber River Regional Hospital (the Hospital). The Respondent, a
general surgeon, had performed an operation on her to remove a growth
located in her abdomen.
5. After commencing a laparoscopy on July
11, 2006, it became apparent that the growth had attached itself to the
patient's colon and kidney. The Respondent converted the surgery to an
open operation and removed the mass and part of the patient's colon.
AWK—SURGICAL RECORDS SHOW HE KNEW BEFORE HE CONVERTED FROM LAPARASCOPIC
TO LAPAROSCOPIC SURGERY.
6. The Respondent did not administer antibiotics to the patient before or during the surgery.
Procedural History
7. In June 2007, the Applicant complained to the College about the
Respondent's care of his daughter. The College's Complaints Committee
(the predecessor to the Inquiries, Complaints and Reports Committee)
investigated the complaint and issued a decision on January 16, 2008.
8. The Complaints Committee summarized the Applicant's complaint by
stating that the Applicant was concerned the Respondent failed to
provide appropriate care in the management of his daughter, in that the
Respondent:
• failed to provide adequate post-operative care to [the patient] as he did not regularly assess her or her wound;
• failed to provide the pathology results to [the patient];
• failed to increase [the patient]'s diet in a timely manner;
• released [the patient] from the hospital too soon as [the patient] was still
not eating solid food upon discharge.
9. After reviewing the Record compiled in its investigation, the
Complaints Committee decided to take no further action. The Complaints
Committee found that the Respondent provided appropriate care. It
described the patient's case as "extremely unusual" and said that it
"could find no information in the hospital chart or other medical
records to predict the horrific outcome, nor any information to suggest
that there were flaws in [the Respondent's] surgery or the care he
provided that directly or indirectly resulted in [the patient's]
untimely death."
10. The Applicant, dissatisfied with this decision,
requested a review by the Board. The Board conducted a review and in a
decision dated March 31, 2010 [A.K. v. L.V.K., 2010 CanLII 44390 (ON HP
ARE)], the Board concluded that the Committee's decision was
unreasonable and referred the matter back to the Committee "for further
consideration, any further investigation it might in its discretion find
warranted, and the issuance of a new decision." The Board found that
the Committee's reasons lacked a level of detail to demonstrate that it
considered all relevant factors in arriving at its conclusion that the
physician's conduct was within acceptable standards, and outlined five
points raised by the Applicant that the Board could not confirm the
Committee had put its mind to:
• the Applicant pointed to consistent observations in the nursing charts of a
foul odour and an oozing incision with large, purulent discharge -
commencing July 15 and continuing to the date of his daughter's
discharge on July 20. He remained unclear as to whether this might have
been an indication of something more than a superficial wound infection
warranting further medical investigations;
• there are concomitant nursing notes documenting the patient's increasing
abdominal distension - from flat, to rounded, to large - leading up to the date of her discharge;
• the Applicant questioned whether his daughter ought to have been ordered
antibiotics when the incision became infected and queried whether the
laboratory results of the swab taken revealed matters for concern;
• the Applicant had asked the College whether the infection his daughter
had might have caused disseminated intravascular coagulation (DIG); and
• the Applicant continued to question whether it would have been expected
for a physician to order an investigative diagnostic test such as a CAT
scan after an infection was first noted.
11. Following this decision, the Applicant supplemented his
original complaint, and stated that, in the Respondent's care there had
been:
• pre-operative negligence in that antibiotic prophylaxis was not given and
bowel cleansing did not occur prior to the surgery;
• post-operative negligence in that the patient's nutritional needs were not
met following the surgery, and as a result, her surgical wound could not heal.
12. The Committee received further submissions from the parties and a
report from an independent opinion provider and issued a decision on
July 15, 2011. In this decision, the Committee counseled the Respondent
on timely documentation of discharge summaries and suggested that he may
wish to consider the use of pre-operative antibiotics for bowel surgery
in future. The Committee took no further action.
13. The Applicant, dissatisfied with this decision, requested a second review by the Board.
The Board conducted a review and in a decision dated November 25, 2011
[AK v LVK,2012 CanLII 39837 (ON HP ARE)], decided to return the decision
to the Committee and require it to further consider and clarify its
decision concerning the use of pre-operative antibiotics and the
standard of practice. The Board confirmed the Committee's decision to
counsel the Respondent on timely documentation of discharge summaries
and to take no further action on the other aspects of the complaint.
The Committee's Decision
14. The Committee carried out further investigations that included
further submissions from the parties and the independent opinion
provider (IOP) and in a decision dated,
November 22, 2012, determined to
(i) advise the Respondent, to continue to consider the use of prophylactic
antibiotics at the time of conversion from laparoscopic procedure to open
laparotomy based on the evolving standard of practice;
(ii) advise the Respondent to individualize the use of pre-operative prophylactic
antibiotics for patients where it is warranted based on the evolving standard of
practice; and
(iii) counsel the Respondent on the timely documentation of discharge summaries.
III. REQUEST FOR REVIEW
15. Dissatisfied with the decision of the Committee, in an e-mail
letter dated January 18, 2013, the Applicant requested that the Board
review the Committee's decision of November 22, 2012.
IV. POWERS OF THE BOARD
16. After conducting a review of a decision of the Committee, the Board may do one or more of the following:
a) confirm all or part of the Committee's decision;
b) make recommendations to the Committee;
c) require the Committee to exercise any of its powers other than to request a Registrar's investigation.
17. The Board cannot recommend or require the Committee to do things
outside its jurisdiction, such as make a finding of misconduct or
incompetence against the member, or require the referral of allegations
to a discipline hearing that would not, if proved, constitute either
professional misconduct or incompetence.
V. ANALYSIS AND REASONS
18. Pursuant to section 33(1) of the Health Professions Procedural
Code (the Code), being Schedule 2 to the Regulated Health
Professions Act, 1991, the mandate of the Board in a complaint review is
to consider either the adequacy of the Committee's investigation, the
reasonableness of its decision, or both. AWK---HPARB FAILED TOTALLY AND
THUS DID NOT FULFILL ITS OBLIGATION UNDER THE ABOVE CODE AND ACT!
18. The Board has considered the submissions of the parties, examined
the Record of Investigation (the Record), and reviewed the Committee's
decision.
Adequacy of the Investigation
20. An adequate
investigation does not need to be exhaustive. Rather, the Committee must
seek to obtain the essential information relevant to making an informed
decision regarding the issues raised in the complaint.
AWK—SO, WHY
DOES HPARB COMPLETELY DISREGARD THE SURGICAL RECORD THAT PROVES DR.
KLEIN KNEW ABOUT THE COLON RESECTION PRIOR TO CONVERTING TO OPEN
ABDOMINAL SURGERY —“PROCEDURE ONE CLEARLY INDICATES – LAPARASCOPIC
SURGERY FOR COLON RESECTION.” ????
21. The Committee had before it the following documents:
• Original investigation Record before the Committee in July 2011;
• Committee decision of July 2011;
• HPARB decision of June 2012;
• Addendum report from the Independent Opinion Provider (IOP), received
September 10,2012;
• Correspondence with the IOP;
• Further Information from the IOP, received September 12,2012;
• Response from the Respondent, received October 4,2012;
• Additional information from the Applicant
22. The Applicant submitted that the Committee required a colorectal
surgeon on the panel due to the particular complexity and issues of this
case.
23. The Board notes that the Committee was a specialized
surgical panel which sought and obtained a report from an IOP who is a
surgeon and whose practice consists of 80 to 90% colorectal surgery.
24. The Board finds that the Committee obtained the necessary
specialized expertise in the form of a report with addendum information
from a colorectal surgeon and that it was therefore not necessary for
the Committee to have a colorectal surgeon as a member of the panel.
AWK—WHY DOES HPARB PLACE ABSOLUTELY NO CREDIBILITY TO THE OVER 100
SURGEONS’ OPINIONS THAT I PROVIDED AND THE FACTUAL INFORMATION THAT I
SUPPLIED??? THE COLLEGE PROVIDED NO SUPPORTING FACTUAL INFORMATION FOR
THEIR OPINION.
25. The Board further notes that the IOP report was
sent to the parties for comment before the Committee came to its
decision in this matter.
26. The Board finds that the
Committee's investigation covered the events in question and yielded
relevant documentation to assess the complaint regarding the
Respondent's conduct and actions.
AWK— “WHAT REVELANT DOCUMENTATION?
ALL THE COLLEGE HAS EVERY SUBMITTED ARE OPINIONS, NO FACTUAL
DOCUMATION, NOTHING TO SUPPORT THEIR OPINION.
27. There is no
indication of further information that might reasonably be expected to
have affected the decision, should the Committee have acquired it.
Accordingly, the Board finds that the Committee's investigation was
adequate.
****************
AWK—HOW ABOUT THE TRUTH--- DR. KLEIN
KNEW ABOUT THE COLON RESECTION THAT WAS REQUIRED, TRIED IT
LAPARASCOPICALLY AND THEN CHANGED TO OPEN ABDOMINAL SURGERY!!!!!! AND
WHAT HAPPENED WITH REGARD TO THE COLLEGE’S OWN WORDS FOUND IN THE SECOND
DECISION:
Page 6 of College’s Second Decision
“The routine use
of antibiotics prior to bowel surgery is an important aspect of care
that was neglected by Dr. Klein in this case. The Committee would
suggest that Dr. Klein consider the routine use of antibiotics in such
circumstances. Having said that, we do not consider this oversight to
have contributed to the unfortunate outcome in this case.”
Page 5 of College’s Third Decision
AWK—HOW CAN HPARB IGNORE THE WORDS ‘NEGLECTED’ AND ‘OVERSITE’
• “The routine use of antibiotics prior to bowel surgery is an
important aspect of care that was neglected by Dr. Klein in this case.
The Committee would suggest that Dr. Klein consider the routine use of
antibiotics in such circumstances. Having said that, we do not consider
this oversight to have contributed to the unfortunate outcome in this
case.”
PLUS THE OTHER EVIDENCE THAT CLEARLY CONTRADICTS THE
COLLEGE’S THIRD OPINION THAT DR. KLEIN DIDN’T KNOW THAT HE HAD TO DO A
COLON RESECTION UNTIL AFTER HE CONVERTED TO OPEN ABDOMINAL SURGERY!!!!!
In response to a request for further information from the College, the IO provider also set out the following information:
• The standard of practice would be to administer prophylactic
antibiotics in connection with laparoscopic procedures if the bowel were
involved; however, in this case, Dr. Klein believed he would be dealing
with a cyst only and not opening the bowel, so the standard would not
require administration of prophylactic antibiotics for the laparoscopic
procedure.
Note the Procedure Desc.
“Laparoscopic Colon Resection Attempted For Mesenteric Mass”
And from Dr. Taylors’(the College’s I.O)letter to Angela Bates May 8th, 2011,
“During the surgery on July 11 2006, Dr. Klein realized that the mass
was not separable from the colon or retroperitoneum and obtained
consultation with a colleague and went ahead with an open right
colectomy. This is well documented in the operative note on page 48.”
OPERATIVE PROCEDURE I-/ Diagnostic laparascopy
2-/ Open right hemicolectomy and excision of mesenteric cyst.
PROCEDURE;
At the time of laparoscopy, a large cyst could be seen in the mesentery
of the right colon. It was densely adherent to the bowel as well as
densely adherent to the lateral abdominal wall. It felt very solid and
not at all in keeping with a simple mesenteric cyst. We therefore made
the decision to convert to an open procedure.
************************************
Reasonableness of the Decision
28. In considering the reasonableness of the Committee's decision, the
question for the Board is not whether it would arrive at the same
decision as the Committee, but whether the Committee's decision can
reasonably be supported by the information before it and can withstand a
somewhat probing examination. In doing so, the Board considers whether
the decision falls within a range of possible, acceptable outcomes that
are defensible in respect of the facts and the law.
Reasonableness of the Decision
28. In considering the reasonableness of the Committee's decision, the question for the Board is not whether it would arrive at the same decision as the Committee, but whether the Committee's decision can reasonably be supported by the information before it and can withstand a somewhat probing examination. In doing so, the Board considers whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.
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