Full Decision
This matter came before a panel of the Discipline Committee of the College of Optometrists of Ontario this 24th day of January 2014, in Toronto, Ontario, at 9:30 am at 222 Bay Street.
The purpose of the hearing was to consider allegations of professional misconduct against Dr. Andrew Mah. The five members of the Discipline Panel, referred to above were in attendance as well as the Counsel for the College of Optometrists of Ontario, Mr. Moher. The member was also present but not represented by counsel. Ms. Martin was also present to serve as independent counsel to the Discipline Panel.
The hearing was called to order at 10:30 am. The chair introduced the panel and the other people present in the room.
REASONS FOR DECISION
Preliminary Matter
Mr. Moher advised the panel that Dr. Mah had previously been represented by an agent, Don Brown, however, Mr. Brown was not present at the hearing. Mr. Moher then filed Exhibit 1 a which was a handwritten signed note from Dr. Mah stating that he was aware that he had a right to be represented by legal counsel. Dr. Mah further stated in Exhibit 1 a that he wanted to proceed with the hearing and that he had had the benefit of advice from his agent who had participated in reaching a resolution of this matter.
The Chair then confirmed with Dr. Mah that the information in Exhibit 1 a was correct and that he wished to proceed with the hearing and represent himself.
Allegations and Evidence
It was alleged in the Notice of Hearing, which was made Exhibit 2, that Dr. Mah committed acts of professional misconduct as follows:
a) He recommended or provided unnecessary diagnostic or treatment services contrary to paragraph 1(1) 16 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35;
b) He failed to maintain the standard of practice of the profession contrary to paragraph 1(1)17 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35 ;
c) He charged fees that are excessive or unreasonable in relation to the services performed contrary to paragraph 1(1)33 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35 ;
d) He charged or received more than the amount payable to an insured person under the Ontario Health Insurance Plan for the insured service, contrary to paragraph 1(1)38 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35
e) He engaged in conduct or performed an act that, having regard to all the circumstances , would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical, contrary to paragraph 1(1)53 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35.
Mr. Moher filed an Agreed Statement of Facts as Exhibit 3 which contained, the Agreed Statement of Facts itself the Notice of Hearing at Schedule “A”, a list of patients and amounts at Schedule “B” and an Undertaking at Schedule “C”.
In response to a question from the Chair Dr. Mah confirmed that he accepted the filing of the Agreed Statement of Facts. The Chair then asked Dr. Mah if he was pleading guilty to the allegations against him as set out in the Agreed Statement of Facts and he stated that he was.
The main facts from the Agreed Statement of Facts are that between January 1 and July 22, 2011 Dr. Mah did the following for patients listed at Schedule “B” to the Agreed Statement of Facts:
1. Used Visual Field Examinations for a number of patients that were not clinically indicated and were unnecessary and for some of the Visual Field Examinations he charged both OHIP and the patients;
2. Used Pachymetry testing for a number of patients when it was not clinically indicated and was unnecessary and charged some of the patients for this test;
3. Used Anterior Ocular Imaging and Digital Retinal Imaging for a number of patients when it was not clinically indicated and was unnecessary and charged some of the patients for this test;
4. Used the Heidelberg Retinal Tomography test for a number of patients when it was not clinically indicated and unnecessary and charged some of the patients for this test;
5. Used the OHIP diagnostic code for Glaucoma unnecessarily and in support of the misconduct above; and
6. Engaged in inadequate record keeping.
Other relevant facts from the Agreed Statement of Facts are as follows:
1. Throughout the investigation of this matter Dr. Mah fully cooperated with the College; and
2. Dr. Mah executed an Undertaking which was made Exhibit 4, the details of which are set out below.
Decision Regarding Allegations
The panel retired to review the allegations and facts. The panel found that the facts supported the guilty plea with respect to all of the allegations in the Notice of Hearing except allegation 1(b) which was that Dr. Mah failed to maintain the standards of practice of the profession contrary to paragraph 1(1)17 of Ontario Regulation 859/93. The reason for this was that the panel did not feel that administering too many tests could be seen as a failure to maintain the standards of practice but rather felt that he was exceeding the testing required for his patients.
Submissions on Penalty
Mr. Moher filed a Joint Penalty Submission as Exhibit 5. The Chair asked Dr. Mah if he agreed with it being made and exhibit and he responded that he did. The College and Dr. Mah submitted together that the appropriate penalty in this case was as follows:
1. That Dr. Mah be reprimanded;
2. That his certificate of registration be suspended for a period of three months and that this suspension be suspended provided that Dr. Mah make full restitution to the patients identified in Dr. Mah’s Undertaking to the College within six months of the date of the Order of the Committee, failing which the member’s certificate of registration shall be suspended immediately;
3. That Dr. Mah pay the legal and investigatory costs of the College in the amount of $11,000 payable to the College of Optometrists of Ontario within six months of the date of the Order of this Committee; and
4. That the terms of the above penalty shall be included in the Register of the College and shall be fully accessible to the public.
Mr. Moher stated that the primary purpose of penalty was the protection of the public and that it was the role of the Discipline Committee to ensure that this occurs.
In addition he submitted as follows:
1. That ensuring that the patients were reimbursed was the most significant way in which patients could be protected;
2. That the suspension of the 3 month suspension was predicated on the repayment of patients who were financially hurt by his actions;
3. That with respect to general deterrence this penalty would send a message to the profession that individuals have to work for the right to practise as optometrists and to do so with honesty and integrity;
4. That an additional factor with respect to general deterrence is the costs of award of $11,000 which is significant when compared to other cases;
5. That the same points applicable to general deterrence apply to specific deterrence;
6. That Dr. Mah will also be deterred as a result of the practice assessment and practice reinspection;
7. That Dr. Mah will be deterred by the potential referral to OHIP by the Registrar which Mr. Moher referred to as frightening.
Mr. Moher submitted that the joint penalty submission would best meet all of these objectives.
Dr. Mah apologized for his behaviour, he said that he had not upheld the standards of the profession, he referenced the fact that this affected the public’s trust and he said that he was committed to this conduct not happening again.
Decision on Penalty
The purpose of the penalty is as follows:
1. The protection of the public which includes ensuring that the public can trust members;
2. Ensuring that this conduct does not recur;
3. The specific deterrence of the member from this type of conduct;
4. The general deterrence to ensure that other members of the professional will not engage in conduct of this nature.
The Panel considers Dr. Mah’s actions to be of a serious nature. Optometrists have a duty to their patients to provide appropriate services and honest billing. When an optometrist fails to respect this duty his or her actions affect the public’s perception of this profession.
Notwithstanding the gravity of the misconduct, the Panel found that there were mitigating factors in this case:
1. Dr. Mah admitted his wrongdoing and pleaded guilty to the allegations;
2. He offered restitution for his improper billing;
3. Dr. Mah was proactive in taking responsibility for his wrongdoing and expressed remorse;
4. Dr. Mah cooperated with the investigation and prosecution;
5. Dr. Mah provided an Undertaking, which was made Exhibit 4, the main provisions of which are as follows:
a. That Dr. Mah shall undergo a practice assessment and re-inspection with respect to both his clinical judgment and records, and his billing practices that will conform with the following conditions:
i. The practice assessment and practice re-inspection will be random, occurring once at some point in time within 12 and 24 months of the Order of this Committee;
ii. The practice assessment and practice re-inspection will involve the review of 25 patient charts; and
iii. The practice assessment and re-inspection will be at Dr. Mah’s cost as well as any remediation required as identified by these two processes.
b. That he shall provide restitution to the patients who were improperly charged as set out at Appendix “A” to the Undertaking within six months of the Order of the Committee;
c. That he shall provide the restitution referred to above in a manner acceptable to the College and provide proof of the restitution in a manner acceptable to the College within six months of the Order of this Committee;
d. Acknowledging that the College may in its absolute discretion make a referral of the matter to the General Manager of OHIP with respect to Dr. Mah’s billing practices;
e. Acknowledging that a breach of any term of the Undertaking may constitute an act of professional misconduct and that a failure to meet the terms of the Undertaking regarding restitution will result in the suspension of his certificate of registration effective six months from the date of the Order of this Committee.
The Panel unanimously accepted the Joint Submission on Penalty which was Exhibit 5 to the Hearing with one minor change to paragraph 2 and therefore orders as follows:
1. That the member should be required to appear before the Discipline Committee and be reprimanded;
2. That Dr. Mah’s certificate of registration be suspended for a period of three months and that this suspension be suspended provided that:
i. Dr. Mah make full restitution to the patients identified in Dr. Mah’s Undertaking to the College within six months of the date of the Order of the Committee; and
ii. If at the conclusion of six months three are unallocated funds from the amount referred to in clause i. above, Dr. Mah shall make a donation of this amount to the Vision Institute of Canada and provide proof of same to the Registrar.
Failing which Dr. Mah’s certificate of Registration shall be suspended immediately.
3. That Dr. Mah shall pay the legal and investigatory costs of the College in the amount of $11,000 payable to the College of Optometrists of Ontario within six months of the date of the Order of this Committee; and
4. That the terms of the above penalty shall be included in the Register of the College and shall be fully accessible to the public.
The Panel believes that this is a unique case and that public protection dictates that he be able to provide optometric care to his existing patients and to be able to reimburse his patients whom he hurt through his actions. If the Panel did not suspend his suspension he would not have been able to reimburse the patients and his existing patients would not receive care.
The Panel concluded that the combination of the mitigating factors and the public protection aspect referred to above made the joint penalty submission the most appropriate disposition in this case. In the absence of these mitigating factors and the need for patients to be reimbursed and Dr. Mah’s current patients cared for the suspension would not have been suspended given the nature of the misconduct.
The Panel finds that in the circumstances of this case the Joint Penalty Submission satisfies the principles of penalty:
1. The public will be protected because there is very little chance of Dr. Mah repeating this behaviour in the future and his patients will be reimbursed for the monies he improperly billed them;
2. Dr. Mah will be deterred from committing this type of conduct again because this process was both financially and emotionally onerous for him. He will pay $4,706 back to his patients, $11,000 in costs to the College as well as the cost of the practice assessment and re-inspection. His optometric practice will also be scrutinized during the two year period of the assessment and re-inspection.
3. The profession will be deterred from committing similar conduct because of the significant cost award made against Dr. Mah, and the potential lengthy suspension for failing to comply with the Undertaking. In addition the profession will be deterred by the public reprimand and the public recording of the penalty in the Register of the College which reinforce the severity and consequences of this conduct.
At the conclusion of the hearing, Dr. Mah waived his right of appeal and proceeded to receive the reprimand from the Discipline Panel.
Dated this 24th day of January 2014 at Toronto, Ontario.