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This is not the original version of this decision. It is a revised version that has been edited for public disclosure and to protect confidential and third party personal information.

THE MEDICAL APPEAL BOARD

BETWEEN:

Edmund Marcel Paulus, M.B. ChB., F.R.C.S.(Eng.), FRCSC APPELLANT

AND:

Surrey Memorial Hospital

RESPONDENT

Members of the Panel: M. Graham Clay, M.D., Chair Norah Andrew, C.G.A., Member Robert S. Sorochan, D.D.S., Member

Counsel for the Appellant: Counsel for the Respondent:

C.E. Hinkson, Q.C. Harper Grey Easton James H. McMaster Russell & DuMoulin

HEARD at Vancouver, British Columbia, November 22nd and 24th, 1995

REASONS FOR JUDGEMENT This is an appeal of the decision of the Board of Trustees (the Board) of the Surrey Memorial Hospital (the Hospital) on September 28, 1994, confirmed November 16, 1994, not to appoint Dr. Edmund M. Paulus (the Appellant) to the Associate Medical Staff of the Hospital. The Appellant received his medical degree in Iraq in 1972. This was followed by a year of internship and 18 months of national service. After more than two years in community practice, The Appellant began a urological residency in Bagdad and then went to London where he obtained his F.R.C.S. in General Surgery after a 2 ½ to 3 year stay. Following this he immigrated to Saskatchewan and, shortly thereafter, began urological specialty training in Ottawa. He obtained his specialty qualification in 1986 and undertook another year's training in urological oncology. In his opening for the Hospital, Mr. McMaster presented a book of documents. He noted that when the Appellant's current Counsel had taken over the case, there had been additions to the initial grounds for appeal and that the long delay in hearing the case had been related to the change of Counsel by the Appellant. Mr. McMaster stated that the Hospital had followed provincial regulations in its response to the appeal and defended the Hospital's approach to the selection of a new consultant urologist for the Hospital.

2 Mr. Hinkson agreed that the original Notice of Appeal filed by The Appellant's original Counsel was wanting. He reminded the Panel that this was a hearing "de novo" and said that he would challenge the search and selection process which had been undertaken. While recognizing that the Panel was not bound by decisions of any other Panel of the Medical Appeal Board, he commented that in the process of application there is an advantage to being on staff. The Appellant was to be his only witness. The first witness for the Respondent was Dr. D who has practiced General Surgery in the Hospital since 1987 and been Chief of the Department of Surgery since September 1993. Throughout his time at the hospital, Dr. D has had a variety of committee appointments. His major clinical work involves abdominal surgery and breast surgery. Prior to working at the Hospital, Dr. D practiced at Kingston, Ontario where he was Head of the Division of General Surgery between 1980 and 1985. Dr. D reviewed much of the material involved in the Hospital's strategic planning over the last few years, referring particularly to a document introduced in evidence called "Strategic Plans, Surrey Memorial Hospital 1991 - 1996". While noting that the Department of Surgery is divided into several divisions, he stated that the document, developed after much discussion with the medical staff and other constituents (including the Board), was trying to guide development of the Hospital. Following initiation of the provincial "Closer to Home" policy, an attempt had been made to respond to those initiatives while developing an expanded role for General Surgery (especially as it relates to the new Fraser Valley Cancer Centre), opening clinical facilities for Thoracic Surgery and, as well, developing: day care in order to economize in the management of many procedures currently requiring the in-patient operating room facility. When discussing hospital accommodation, Dr. D noted that the hospital is rated at 434 beds, but budgetary constraints allow just over 300 to be operational. Of the 434 beds, 105 were considered "surgical" yet only about 70 are actually open. The number of emergency calls upon beds varies a little throughout the year but it has been necessary to protect 40 beds for "elective" activity, so that the operating rooms can function at capacity throughout the day shift from Monday to Friday. The remaining surgical beds are utilized for emergency procedures. He commented that Surrey is currently the second largest community in British Columbia yet has a bed ratio of only 1.1 per 1,000 population while the ideal is considered to be 3.6 per 1,000. The Emergency Department is the busiest in the province but only 37% of elective surgical procedures for Surrey residents are done in Surrey because of the enormous emergency load demanded of the hospital and the limited number of available beds. Some resources for surgery were transferred when the University Hospital (Shaughnessy Site) was closed which allowed one operating room to be added to the complement although funding for its activities is available for only 9 months each year. While this additional room continues to be threatened

3 because of budgetary constraints, it was because of its availability that there was adequate operating time for the recently appointed urologist, Dr. A. Dr. D stated that each surgeon needs at least 8 hours operating time per week but in some Divisions less time is available. Booked operating time is used to available capacity during the day, while the emergency operating room is available at other times. Although the Hospital wishes to repatriate treatment of Surrey residents needing surgery or associated management, this goal is impossible with the current budgetary constraints. Some repatriation has occurred over the years because of the significant increase in use of day care facilities while the other major improvement has been increased efficiency of hospital bed use resultant from mapping of patient care plans. Attempts to obtain further efficiencies continue but there is little more that can be done. Capital funding is extremely limited so there is no potential for increasing the facilities in the near future. While reviewing plans for developing other areas, Dr. D commented that the appointment of a thoracic surgeon awaits improved funding which he hopes will result from regionalization. There may be setbacks to the current situation because of a potential deficit recovery program which could result in closure of the seventh operating room as well as some surgical beds. The problems of Surrey are compounded by rapid population growth (estimated to be about 4,000 per month) combined with the continuing decline in hospital funding by the Ministry of Health. He noted that the average length of stay and other measureable parameters are better at the Hospital than all of the peer reference hospitals but Dr. D felt that the Hospital still has to do better. He stated that it is currently impossible to extend clinical services. If it were, Urology would not be the first Division to be considered since Thoracic Surgery needs development while General Surgery needs enhancement in oncology; these two areas are the initial priorities. Should The Appellant be added to the Associate (and then Active) Staff, it was Dr. D's contention that activities in another area would have to be decreased to allow him operative and bed facilities. He commented that surgical funding continues to be threatened since requirements for Emergency drive the Hospital's budget but he repeated that establishing Thoracic Surgery in the Hospital is very important both for treatment of local patients and for enhancement of the Fraser Valley Cancer Centre. Dr. D said that Consulting Staff in Urology have much less access to resources than they need. He commented that Dr. B, an urologist whom the recent appointee replaced, had announced his decision to go to the Middle East abruptly. He noted that while Urology is not a Division which the Hospital is planning to enhance, it has a significant role in caring for the community. Because of Dr. B's sudden departure, the Appellant had been appointed to the Temporary Consultant Staff since Dr. Y, the only other divisional member in Urology, required assistance. The temporary nature of the appointment was made clear to the Appellant at the outset in a letter from the interim Chief Executive Officer of the Hospital on November 8th, 1993. This letter also stated that the appointment was to be reviewed on a monthly basis until the Search and Selection Committee made its recommendation for appointment of an Associate Staff urologist.

4 Dr. D stated that the Hospital replaces specialists by declaring a vacancy and appoints a committee to interview and give advice on the candidate who might best fill the needs of the Hospital. The Board always makes the final decision to appoint a specific individual. Any Search and Selection Committee only advises the Medical Executive which, in turn, advises the Board which may or may not act on that advice. During cross-examination, Dr. D agreed that more hospital facilities are needed to service the practice of Dr. A than that of his predecessor since Dr. B worked only part time at the hospital and had privileges elsewhere. Nevertheless, the type of surgical procedures are the same, although it is hoped that use of laser surgery for transurethral resections of the prostate will be developed. Dr. D stated that the total funding for the hospital is about $80 million from the Ministry while nearly $20 million is available from other sources. He noted that operating costs are funded entirely by the Ministry while the Hospital Foundation's contributions augment payments for capital equipment and finance research programs. None of the $80 million received from the Ministry is utilized for research programs. Dr. D did not know if the Appellant is currently involved in the urology call or has been since Dr. A arrived. He noted that 18 hours of operating time per week is shared by the two Consulting Staff urologists and stated that if another urologist were appointed, only 4 more hours could be added to the available operating room time for Urology. Reviewing the draft of the strategic plan prepared for the Hospital, Dr. D noted that 64.9% of residents of the South Fraser Valley Region receive their inpatient care in South Fraser Valley hospitals; of Surrey residents requiring hospitalization, the Hospital cares for only 41 % while another 20% are looked after at the Peace Arch Hospital. Only 32% of Surrey's inpatient adult surgical cases are treated at the Hospital. He commented that the Hospital certainly cannot meet the "Closer to Home" requirements but, if all the currently available beds which are closed were reopened, it could manage a total of 65% of the requirements of the City of Surrey. When the Fraser Valley Cancer Centre opened, two hours of operating time were guaranteed weekly for staff of that facility. Activities of the Centre are being phased in and the operating room commitment will begin in January 1996. This operating time is for the Centre's oncologists to use for insertion of devices required for radiation and will not impact on urological oncology or the oncology of any other division. Dr. D was aware of a suggestion that the elderly population in the Hospital's catchment area is expected to increase by 96% between 1990 and 2001 although he did not know what evidence was available to justify this figure. He confirmed that Dr. Y, the Head of the Division of Urology, had requested the Appellant be given Temporary Associate Staff privileges to assist in urological coverage. He also agreed with Mr. Hinkson that Dr. A's appointment had been recommended before he obtained his qualifications as a specialist and the appointment had also been made by the Board prior

5 to Dr. A completing his specialty examinations. Dr. D stated he was unaware if the Appellant had been treated differently than other applicants since it was a general principle to treat all applicants equally. This of course, meant that the Appellant did not receive any special treatment because he had recently helped the Division of Urology when it was short-staffed. It was Dr. D's contention that the promise to transfer funding from Shaughnessy Hospital had not been honoured and that, while the Hospital's budget had an increased dollar value, in real terms (or real dollars) there was decreased funding in the money available, considering current costs.

The next witness was Dr. K, the director of the Fraser Valley Cancer Centre, one of the three Cancer Centres in the province. Although the Centre had opened only on April 3, 1995, Dr. K received his appointment to the staff of the Hospital in January 1993 and had been involved in planning the facility. By virtue of his position with the Cancer Centre, Dr. K has been on the Associate Staff since the first year of planning. He participates, ex-officio, as a member of the Medical Advisory Committee and was a member of the Search and Selection Committee for Urology as a non-voting, resource person. He does not offer unsolicited advice to the Hospital regarding any resource issue but only gives advice if asked. He was not involved in selection criteria or in the choice of those on the short list but participated in interviews, although not in ranking. He did fill in the forms with which he was supplied including the "interview weighted" factors but did not participate in the final advisory meeting. Dr. K took part in interviews of the three people on the short list for the urology position. He interviewed Dr. A in a different setting because he was unable to attend the joint interview with other members of the Selection Committee. He considered that Dr. A had the best oncological skills of all the candidates, given his recent training in a strong oncology program; but said that he felt Dr. H, an applicant from Saskatchewan, also was strong in this area. Dr. K stated that he has worked with the Appellant and considers that his cases have been managed competently but that the Appellant's range of cases was more narrowly defined and similar to those of Dr. Y and many others throughout the province. That was to say they were competently managed but that the practitioner was not broad in his oncological strengths. Dr. K said that the Fraser Valley Cancer Centre buys services from the Hospital, has use of dedicated oncology beds and can call on the Hospital's physicians for help in management of the Centre's patients. The Centre is a facility of the British Columbia Cancer Agency, is entirely ambulatory and does not have its own laboratory, inpatient or radiological facilities. Its catchment area includes the Fraser Valley (all areas south of the Fraser River and, on the north side, from Coquitlam east). Only one-third of its patients come from Surrey. He felt that the presence of the Centre will impact on the Hospital but will not affect the number or the character of surgical procedures. It would be more likely to affect surgery if Thoracic Surgery or Neurosurgery were available at the Hospital, but they are not. It is Dr. K's belief that the Hospital is attempting to direct itself into a regional roll

6 and this, he thought, was reflected in the quality of applicants for appointments to the Medical Staff, including appointment in the Division of Urology. During cross-examination Dr. K stated that his involvement in the search and selection process was to give advice about a candidate's potential ability to deliver oncological care and his potential to develop new skills. Dr. Y, the Chief of the Division of Urology, was the next witness. He has been on staff as an urologist at the Hospital since 1972 and Chief of the Division of Urology since October 1993. He is also on the Associate Staff at St. Mary's Hospital in New Westminster where he has 6 ¼ hours of operating time monthly. He has approximately 10 hours of operating time at the Hospital each week, as does Dr. A. Dr. Y's only office is in Surrey. Dr. Y has known the Appellant for approximately eight years, having met him when the Appellant visited the Hospital prior to obtaining a position in New Westminster. At that time, Dr. Y advised the Appellant to seek privileges in New Westminster since two of the urologists there were retiring. Dr. B, the other urologist who had been on staff at Surrey, had only about 1/3 to 1/2 of his hospital patients at the Hospital with the rest hospitalized at the Langley Memorial Hospital. The call arrangements were such that Dr. Y and Dr. B were each on call every second weekend so they wished to involve the Appellant in that call in order to lighten their load. To accomplish this, the Appellant was encouraged to obtain Visiting Consultant privileges which he did, but then Dr. B decided not to proceed with the arrangement so the Appellant had privileges but no call, although he had covered for Dr. Y on occasion. With Dr. B's sudden departure the Appellant was asked to become involved in work at the Hospital, rather like a locum. In cross-examination, Dr. Y stated that his operating time at St. Mary's Hospital is entirely elective and noted that there is no emergency surgery done there. He stated that when Dr. B was on the staff at the Hospital, Dr. B had only one-half day operating time at the Hospital on alternate weeks. He also said that his own waiting list has become shorter since Dr. A's appointment. Reviewing the letter of reference he had written to support the Appellant's appointment, he noted that there were never any complaints about the Appellant's skills or his relationships with other physicians or patients. He also commented that one of the letters of recommendation for the Appellant came too late for consideration by the Committee. I Dr. Y stated that coverage currently requires each urologist to take every second weekend on call and, if one is away, the other covers every weekend. As a result he himself has had only 4 days off in the last 9 months.

The next witness was Dr. T, Chief of Orthopedics from 1988 to 1993 and Chief of the Medical Staff since September 1994. Early in 1995 the VicePresident of Medicine resigned; since then, Dr. T has shared the responsibility

7 of that position with another physician and is called the acting Vice-President of Medicine. He discussed the 40 beds which are protected for elective surgery, an inviolate protection. Ten are closed on Saturday and Sunday, another 10 are closed on Sunday and Monday so that 30 are available on Saturday, 20 on Sunday and 30 again on Monday with the entire 40 beds operational between Tuesday and Saturday morning. In this manner the unit functions both economically and rationally. He stated that although expansion of that hospital is planned for about 3 years from now, when it will actually occur is uncertain. At a recent Medical Advisory Committee meeting, consideration of appointment of a thoracic surgeon was delayed until resources are clearly available; as well, there is continuing concern about the potential loss of funding for the seventh operating room, especially with current decreases in federal transfer payments. While the Hospital currently projects a small deficit, the Board has decided that there shall be no change in clinical activity. The current major funding problem for the Department of Surgery is the prosthetic budget utilized primarily by Orthopedics (for joint replacement prostheses) and Urology (for penile prostheses). Dr. T thought that improvements in efficiency had reached their maximum potential and no significant further change is anticipated after the major accomplishments of the last three years. Since the Hospital is driven to such an extent by the emergency requirements, any decrease in funding would reduce booked operating room activities. It was Dr. T's opinion that addition of another urologist would not improve patient care but would have a negative effect on the development of the most recent appointee's practice. He considered that a definite level of activity is required to develop and strengthen a surgeon's skills. The Hospital's current major goal is to deliver the best care possible with the limited resources available. While recognizing the difficulty in balancing requirements of various areas, Dr. T agreed that oncology is very important and location of the Cancer Agency's facility for South Fraser patients at the Hospital is of major importance to the Hospital. Discussing the call roster, Dr. T stated that the administration requires 24-hour availability of specialists and that many rosters are divided equally between Associate and Active staff. He said the Hospital's responsibility is to ensure that the call roster exists, is adequate and is timely. He has had no complaints about urology coverage. Dr. T said that the Appellant continues to have consulting privileges which are limited to "on call." He could be included in the urology call if members of that division wished to include him. He also stated that it is not unusual to recruit new staff members when their training is not yet completed, a process used to select the best person for an identified need. He also said that if regionalization does take place, resource funding would become regional.

8 During cross-examination, Dr. T agreed that if increased funding was available programs could be increased but stated that psychiatry, pediatrics and obstetrics were considered more important areas for development than urology. Ms. C, a Board member since February 1994, was the next witness. She is a non-practising lawyer and also has an appointment to the South Fraser Valley Regional Health Board where she chairs the Policy and By-laws Committee. Ms. C stated that, in June 1994, the Board accepted the Medical Advisory Committee's recommendation for Dr. A's appointment because he was presented as the best available candidate and had recent academic and clinical training which would benefit the Hospital. While her recollections of the meeting were rather vague, she remembered that his qualifications were excellent. At another meeting of the Board on September 28th, 1994, when the Board was requested to rescind the appointment of Dr. A and reconsider applicants for the vacancy or, alternatively, declare an additional vacancy for urology, the Appellant gave evidence. At that meeting, which was rather lengthy, the original decision of the Board was confirmed. Ms. C stated the key factor favouring the appointment was that Dr. A was clearly the most suitable candidate. She felt that there is still no doubt about Dr. A's selection. While the Appellant's current request is that a position be added for him rather than him replacing Dr. A, Ms. C believes it is not in the best interests of the community to proceed in that manner. She was concerned about the effect that would have on other resource plans of the hospital. In cross-examination Ms. C stated that she was unaware who had done the grading of the candidates in the Search and Selection Committee process. Ms. D, formerly an administrator at the Hospital, was the next witness. She became Director of Medical Services shortly after her appointment in 1990 and was acting Vice-President of Medicine for about one year prior to resigning in late 1994 to accept a position as Associate Director of the Fraser Valley Cancer Clinic. Ms. D commented that consulting privileges were very different from active or associate privileges and were given for on-call backup in specialties in which the hospital could not support enough full-time appointments to provide on-call coverage. She was involved in the Shaughnessy transfer and said that the Hospital was not limited in the allocation of the resources given it. She thought there were not enough resources to appoint a full-time equivalent urologist and it was for this reason that Dr. L, who had considered coming to the hospital, decided to immigrate to the United States instead. Ms. D drafted the initial letter sent to the Appellant regarding his temporary appointment that had been made in response to Dr. Y's request for assistance; she considered that appointment completely separate from the search and selection process for appointment of a new urologist. Reviewing the actual process, she stated that she was a non-voting member of the committee. She recognized that Dr. A had not completed his Certification at the time of the process but knew that he was approaching the end of his training. She also noted that the Appellant was one of the three on the short list and in his

9 interview the Appellant indicated that he would continue his New Westminster practice. She also agreed that one of the Appellant's references had not answered despite the fact that the referee had been notified of the urgency of the reply. Regarding the process, Ms. D commented that all candidates were asked set questions and at the end of the interview allowed to ask questions themselves. After the candidates had left the interview, discussion took place following which each member of the committee completed an assessment form (either immediately or later) and gave it to Ms. D who compiled the results. She prepared the records of the attendees and stated that she was a resource member not a voting member, although everyone present filled in assessments. It was her opinion that the Appellant scored the lowest of the three because he had no recent training, had less oncological experience and appeared to lack the full-time commitment to the hospital that the others were offering. Ms. D commented that Dr. A began his practise as planned. In cross-examination Ms. D noted that the selection process was carried out as indicated in the Medical Staff manual except for the fact that since the Divisions of Urology did not have three members, members of other Divisions were chosen to join the Committee. Ms, D confirmed that she reviewed the plans for development of urology in the Hospital as well as the search and selection criteria for the appointment process. Ms. D stated at the short-listing meeting there was a bias to select a person who was definitely up to date. She felt the Appellant's declaration that he would continue some activity in New Westminster was not in his favour. The Appellant was the only witness called by Mr. Hinkson. Mr. Hinkson stated that the concerns he expressed on the Appellant's behalf included failure of the Hospital to follow the authorized policies; as a result, he felt that the exercise undertaken which resulted in Dr. A's selection had been unfair. Recognizing the fact that Dr. A had already been appointed, Mr. Hinkson wondered whether the Appellant had been given any preference after being used by the Hospital when it needed his services and, as well, after being encouraged by the Chief of Urology to open an office in Surrey. He stated that the Appellant continues to serve the residents of Surrey. I The Appellant stated that he had been told nothing of the focus of the Search and Selection Committee prior to his interview and had been reassured by Dr. Y that as long as his competence was proven and he obtained proof of his competence, references from his colleagues would go a long way toward his obtaining the appointment. He stated he had taken a weekend course in urological laser surgery at the University of British Columbia recently including both didactic and "hands on" sessions but noted there was no laser available in Surrey although he does use lasers at St. Mary's Hospital. He stated his appointment at the Royal Columbian Hospital, obtained only in the last 2 or 3 years, has resulted in him obtaining limited access to see his own patients in the Emergency Department at the Royal Columbian Hospital; St. Mary's does not have emergency facilities. He noted that his Surrey relationship had been fostered by exchange of call with Dr. Y at St. Mary's Hospital. The Appellant came to British Columbia to take up an appointment at St.

10 Mary's Hospital at a time when there was also one available at Lions' Gate Hospital but the Lions' Gate appointment would have been a lengthy process. The Appellant stated his first request for elective operating time at Surrey had been made only in 1992 since he did not wish to crowd the facilities prior to that. It was only after Dr. B's withdrawal from practice at the hospital that The Appellant had received a temporary appointment which he recognized was separate from the selection process. He stated he would not have gone through the recent selection process if he had realized that the Hospital wished a new graduate. He believed that most physicians on the Hospital staff thought he would be the candidate selected. The Appellant said he had been informed by Dr. Y that the Search and Selection Committee had decided to recommend Dr. A's appointment but noted that he continued to help out at Surrey until the end of September 1994. The Appellant continues to have an office in Surrey which he uses for patients coming from that community including follow-ups for malignancies. Without admitting privileges at the Hospital, he no longer has many new referrals. The Appellant stated that, while he continues to have consulting, on-call privileges, there have been no requests for his services for one year. Although Dr. Y occasionally asks him to cover at St. Mary's, he feels he cannot ask for a lot of coverage without being able to repay the kindness. The Appellant stated he thought if he did get privileges, the situation would not be as gloomy as has been predicted prior to the hearing. He definitely does not wish to encroach on the operating time utilized by the other two members of staff but would be prepared to work with the others and develop an agreement if that were possible. In cross-examination, the Appellant stated that he had been invited to apply for the position by Dr. Y before the advertisement appeared in the Canadian Medical Association Journal. He also stated that if he realized that he would only be in Surrey for a year, he would not have opened an office there. He emphasized that he still wishes an appointment at the Hospital. The Appellant reviewed the operating room time available to him at St. Mary's and stated he had been on active staff at the Royal Columbian Hospital for about one year but had no elective operating time. Currently the Royal Columbian Hospital is trying to move its urology operating time to the Eagle Ridge Hospital. The Appellant stated that his Surrey office is open only on Thursdays when he is there for half of the day. Should he receive the privileges he requests, the Appellant stated he would not work full time at the Hospital but was prepared to discuss the amount of his time with Drs. Y and A, recognizing that practices evolve gradually. He would have to continue working at St. Mary's since that is the only place that he has elective operating privileges and many patients from Surrey go to St. Mary's Hospital for urological procedures. At the special Board meeting on September 28, 1994, the Appellant had stated that he felt quite good about the selection process when it took place. At that meeting he was given the opportunity to expand what he had said to the interview

11 committee. Argument Written argument was submitted to the Panel by Counsel. In his argument on behalf of the Respondent, Mr. McMaster commented on the causes of the delay for the hearing to take place and reviewed material submitted to the Board when it heard the Appellant's appeal of the Board's original decision to appoint Dr. A to the Associate Staff of the Hospital. Mr. McMaster considered that this Panel should take the reasons of the Board into consideration. Mr. McMaster reviewed the grounds of appeal which he considered neither valid nor substantial. He stated that appointment of the Appellant to the Associate Medical Staff would not be in the best interests of the community since the Hospital does not have the resources to support the activities of another urologist and, if it did, the Appellant would not necessarily be the appropriate individual to be appointed. The need for development of other areas before expansion of urological services was stressed. He considered that the Appellant had been treated fairly and that, in any event, the Appellant was well established in a neighbouring community and was never fully committed to the Hospital. He reminded the Panel that failure of a referee to submit a letter of reference when requested was no reason to fault a selection committee's actions and, as well, stated that in the letter of appointment to the Temporary Associate Staff, the Appellant had been told clearly that his work was as a "locum tenens" and would not influence any selection process. It was also noted that the Appellant was the only applicant who had one of his referees on the Search and Selection Committee and he was on the "short list" so prejudice against the Appellant's appointment was unlikely. Analysis of the ranking process resulted in the same spread between the Appellant and the other two on the "short list" no matter whether or not scoring included the results of assessment by the two resource members of the Search and Selection Committee. The spread was actually greater when scores of the resource members were not included. In addition, Mr. McMaster said that there was no merit to allegations that the manpower plan had not been considered and that there was a need for additional urological services. It was his contention that addition of urological services at present would disrupt the carefully planned, orderly development of services in a manner which combines the needs of the community with the available resources. Again, Mr. McMaster emphasized that the Appellant still is offering only part-time instead of full-time involvement with Hospital activities. He felt that, because of both limited commitment and lack of special skills, the Appellant is not in a position to offer what is needed by a hospital which is developing a regional base. In his submission, Mr. Hinkson reviewed the Appellant's education and qualifications as well as his history with the Hospital where, it was stated, the Appellant had been assisting with on-call coverage since his initial appointment to the Consulting Staff in 1989 and had been applying for "full-time" privileges since 1988 with encouragement of Dr. Y for most of that time. It was suggested that,

12 following the temporary replacement of Dr. B and then the appointment of Dr. A as a "full-time" urologist, there is still need for another urologist with opening of the Fraser Valley Cancer Clinic. Comment was made that 50% of the Appellant's patients are from Surrey and also that the Appellant had responded to Dr. Y's encouragement of the possibility of an appointment to the Associate Staff of the Hospital by opening an office in Surrey. Mr. Hinkson accepted that the delay in hearing the appeal was related to the fact that the Appellant had changed counsel. , He also stated that the Hospital failed to comply with the Regulations of the Hospital Act by not following the Medical Staff By-laws in force at the time of their meetings. The Medical Staff By-laws which had been approved and were in force from June 22, 1992 were used when the Appellant was appointed to the Temporary Associate Staff but did not include consideration of a Search and Selection Committee, something not finally approved by the Ministry until 6 June 1994, after the Search and Selection Committee which advised the appointment of Dr. A had completed its deliberations and submitted its report. As well, it was noted that the by-laws in effect at the time of Dr. A's appointment stated that an applicant "shall practice in the community" which Dr. A did not since he was still in training at the time of his appointment and, as well, Mr. Hinkson commented that the criteria of the Search and Selection Committee were never approved by the Board. Reviewing the case of Braun v The Surrey Memorial Hospital, Mr. Hinkson suggested that the route followed by the Appellant's application was inappropriate since it had to pass through a selection process. It was suggested that Dr. K and Ms. D should not have submitted assessments of the candidates following interviews. As well, comment was made about the absence of some members at Search and Selection Committee meetings as well as failure of some members to complete assessment forms whether or not they had been present at interviews. The different forum in which Dr. K interviewed Dr. A was mentioned as was Dr. K's obvious support of Dr. A. The rankings of various members of the Committee were also analyzed. Comment was made that, despite Dr. A's training in advanced procedures that would be expected of one just completing training, many of those advanced procedures are not currently undertaken at the Hospital. Reviewing the Hospital's activities in the appointment process, Mr. Hinkson felt that, given the Appellant's service to the Hospital in its time of need, the Hospital had an obligation to the Appellant as did Dr. Y, who had encouraged the Appellant to open a Surrey office and make himself more visible at the Hospital and who stated in evidence that he had told the Appellant of his full support. Mr. Hinkson also was critical of the Search and Selection Committee in not reviewing the letter of reference from Dr. R which had arrived well after it was requested and after the Committee had made its recommendation. He was also critical of the fact that three of the members of the Committee and one of the resource members were not present when the final recommendation was made. The argument went on to ask why the Hospital had not respected the contributions of the Appellant since 1989, had placed insufficient weight on the

13 opinion of Dr. Y regarding the Appellant's abilities, and failed to recognize that 50% of the Appellant's patients were Surrey residents, a factor that should have added significantly in support of the Appellant being appointed, citing Hicks v West Coast General Hospital. The Appellant had attempted to increase his Surrey base, again on the advice of Dr. Y, and it was suggested that it would be in the interests of the Hospital and the Surrey patients if the Appellant could treat the Surrey residents in his practice at the Hospital. Finally Mr. Hinkson referred to the Manpower Plan of 1992 together with Dr. Y's various encouraging statements to the Appellant. Dr. Y's suggestion in 1993 that there should be one urologist for every 60,000 population and Ms. D's comments that transfer of the Shaughnessy Hospital resources justified appointment of three urologists even if only 60% of the population was being served by the Hospital. The matter of just how much operating time would be available for urology, should another urologist be appointed, was in dispute with evidence by Dr. D and Dr. Y differing in the weekly hours suggested. In reply, counsel for the Respondent noted that Dr. B was never full-time at the Hospital and also noted that the Appellant worked with the same limitations when he filled in during the period between Dr. B's departure and Dr. A's appointment; during that time the Appellant maintained his practice at New Westminster. Mr. McMaster contested Mr. Hinkson's suggestion that the decision of the Supreme Court in Sylvia Hicks v. West Coast General Hospital had any bearing on this case, particularly since that decision was based on the lack of fairness and due process. As well, Mr. McMaster suggested that the burden of proof was not on the Hospital, in contrast to the decision of the Supreme Court in the Tracy Hicks v. Langley Memorial Hospital where Dr. Hicks' privileges had been removed for an allegation that the Judge thought the hospital had failed to prove. The justification for a Search and Selection Committee was defended and considered not to be contrary to the Hospitals Act and its Regulations. The idea of appointing someone to the Hospital's staff prior to that individual completing his qualifications was reviewed and again it was suggested that the Hospital was justified in appointing someone who was nearing the end of training, with the appointment contingent on successful completion of that training and the subsequent qualifying examinations. Again he stated that use of a Search and Selection Committee (together with its membership) was justified under the circumstances and carried out its duties, including decisions regarding the final advice given the Board, in an appropriate manner. In his defence of Dr. A's appointment, counsel for the Hospital stated that Dr. A had better training and greater surgical skills than the Appellant and noted that the Hospital was recruiting for the next thirty years as it planned for development. He reminded the Panel that the Hospital did not recruit the Appellant, despite what Dr. Y might have done in encouraging the Appellant to apply for the position, and that the Search and Selection Committee were fully aware of the Appellant's circumstances vis-a-vis the Hospital. He denied any parallel with the Parton v Greater Victoria Hospital Society

14 in the failure of the Search and Selection Committee to consider the letter of reference submitted by Dr. R and dismissed any suggestion that the Appellant was justified in asking the Panel to create a position for him that he was unable to obtain on his own merits. Decision It is clear from the evidence that the Hospital is currently attempting two major tasks. One is to increase the quality of services which it is able to supply for the residents of the community which it serves while the other is that is must do this in the current milieu of major fiscal constraints. Past plans and even recent decisions must be altered frequently to work within the fiscal realities of 1996. The size of the Hospital is completely inadequate to serve the needs of Surrey yet it is faced with the need to function as a community institution while improving its standards so that it can develop as a regional institution, a challenge made obvious by the location of the Fraser Valley Cancer Clinic on its grounds. The appropriate response to such a challenge will always result in alteration of the manner in which "business is done" and, in the process, should improve standards although relationships will be altered. The potential for success of the Appellant's application for the new urology position appears to have suffered because of the changes. It is not clear to the Panel whether Dr. Y appreciated the effect of the new direction which the Hospital and its Medical Staff were seeking as he continued to encourage the Appellant. But the Hospital cannot be held responsible for Dr. Y's encouragement nor should that encouragement give any advantage to the Appellant in the application process. The Panel disagrees with Mr. McMaster's suggestion that we should consider the Board's reasons for its decision not to appoint the Appellant to the Associate Staff since we sit as a hearing de novo and reach our own decision regarding the Appellant's appointment as we see fit, after weighing the evidence and considering the current situation of the Hospital. The decision of the Board and its reasons are of no importance to us but what took place prior to that and the evidence we have heard will be what influence our decision. We recognize that the Hospital has made significant changes in its approach to appointments and commend them for those changes. In doing so, the new By-laws which were ratified by the Ministry in June 1994 make the position of a Search and Selection Committee "legitimate" but such a committee, operating on an "ad hoc" basis was not precluded by the earlier bylaws. However the name of the committee is not appropriate. The committee is in a position to search and recommend but not to select, an important distinction since it is only the Board which has the authority to select and then appoint. While it might be appropriate to suggest that the committee selects a candidate to recommend to the Board, the situation can be confusing so the committee would be better called a "Search Committee" as it is in most institutions. The Search (and Selection) Committee at the Hospital is advisory to the Medical Advisory Committee which, in turn, advises the Board in relation to appointments of physicians. Distinction must be made in the difference between the process of

15 appointment to the Medical Staff of a family practitioner already practicing in the community and appointment of a physician to a highly specialized position when such a position becomes available. The Credentials Committee is certainly equipped to decide an individual's suitability for appointment for the former situation whereas its makeup may well be unsuitable to interview or make a decision in the latter case. The new By-laws allow for this distinction and they have also removed the unreasonable demand that a physician must be practicing in the community in order to apply for a medical staff appointment. At this juncture, the Panel must remind Counsel for the Respondent that physicians, by and large, are appointed to the Medical Staff of a Hospital and not hired by the Hospital, a mistake in terminology often made even by physicians. That is certainly the case in the appointment of an individual to the Division of Urology in the Department of Surgery at the Hospital. We do not find fault with the manner in which the Search and Selection Committee functioned and place no importance in the statement that the resource members of that committee were influential in its decision since the decision reached would have been the same had their written assessments not been considered. As well, we must remind Counsel that when a person is appointed to such a committee, each member of such a committee is equal; it serves no useful purpose to dissect the decisions of individual members and contrast them with the decisions of others suggesting some should be more influential in the final decision than others. In the search for a urologist, when a position had become available, a sincere attempt was made to find a surgeon who would assist the Hospital to serve the larger community which is very different to the situation of Braun v The Surrey Memorial Hospital where, to the Panel hearing that case, it appeared that the Hospital was, for reasons not obvious to the Panel, attempting to subvert the appointment of a Family Practitioner whose appointment was justified and whose patients would be badly served should his appointment continue to be denied. Even if this Panel depended on precedent for its decisions which it does not, Braun would not be an appropriate precedent since his situation was so very different. As well, the case of Sylvia Hicks v The West Coast General Hospital decided a matter of appointment of a practitioner who had no other institution in which she could serve the needs of her patients while Tracy Hicks v Langley Memorial Hospital was a matter involving removal of privileges for reasons which were later discounted when the matter was heard by another panel of the Medical Appeal Board. Removal of privileges is vastly different from the case before us and requires much more stringent evidence for justification. In this matter, the initial request that the Board's decision to appoint Dr. A be rescinded, a request which was later withdrawn by the Appellant, is also not a matter for us to hear but we have heard the Appellant's appeal that we reverse the decision of the Board dated September 28, 1994, and affirmed November 16, 1994, and instead that we appoint the Appellant to the Associate Medical Staff of the Hospital. We believe that the Appellant was treated with the same fairness as other

16 applicants. The Appellant was, as stated by Counsel for the Respondent, the only applicant to have a referee on the search committee and he did reach the "short list." At no time did the Hospital suggest that any favouritism would be shown the Appellant because he had assisted the Hospital when Dr. B had departed suddenly. Instead, from the very first letter to the Appellant (signed by the Interim Chief Executive Officer on November 8, 1993) it was stated that "this [Temporary Associate Staff] appointment is completely separate from the Search and Selection Committee process." Nothing could be more clear ­ the Search and Selection Committee would be independent of any obligation to an applicant for past services. Each applicant was to be assessed on his own merits and we believe that each was. The fact that Dr. K interviewed Dr. A in a different venue from other members of the Committee carries no concerns. As well, the tallied results of the Committee members' assessments give the same standings to each of the three on the "short list" whether or not the assessments include those given by the resource members of the Committee. The unreasonable tardiness of Dr. R's reference letter cannot be expected to delay the activities of the Search and Selection Committee. Nothing was submitted in evidence that suggests that Dr. R was notified late of the need for him to submit a letter of reference and the other letters in favour of the Appellant, also requested by the Hospital, arrived before the decision of the Committee was made. As well, although Dr. R's letter was favourable, it did not offer information which would likely have affected the Committee's decision; no unique quality which would serve the Hospital in a specific way was suggested in that letter when it did arrive. Counsel for the Appellant is in error when he suggests that the situation of Dr. R's late letter is in any way parallel to the situation in Parton v The Greater Victoria Hospital Society; in that case the hospital deliberately requested letters of recommendation only after a decision had been reached regarding who was to be recommended for an appointment lest a physician's interest in moving from his current situation might be discovered and that physician not be appointed to the new position. That is far from the current situation where a referee failed to submit a letter in a timely manner. Currently the Hospital is struggling with a limited budget and many closed beds in an attempt to manage facilities as well as possible. This means limiting the service available to Surrey residents so that fewer than 41% of the residents requiring hospitalization can be managed in the institution. Non-emergent surgery within their own community is possible for only 32 % of Surrey residents. The balance of residents must seek hospitalization elsewhere. The fiscal reality of 1996, together with the certainty that the situation will not improve in the immediate future, dictates that those responsible for the day-to-day planning must ration services yet still improve the quality of work and the calibre of care. The Hospital wishes to obtain the most advanced level of medical care for the community, select new appointees for the specialist Medical Staff and also develop in a manner considering each specialty's needs and merits. If Urology were a major priority today, it might well be considered for another appointee, but that is not the case. Instead other areas such as Thoracic Surgery, Psychiatry and Pediatrics must take priority. Until there are finances available to support another urologist and such an appointment is the next appropriate appointment (when considering all the

17 needs to which the Hospital must respond), no other Associate Staff appointment can be made in the Division of Urology. This Panel cannot overrule a decision which appears to us to have been made in good faith and with sound background. Therefore we cannot appoint the Appellant to the Associate Medical Staff. However, we sincerely believe that the Hospital should not function with only two urologists on staff and that "one-in-two" call is inappropriate in 1996. Because of this need, we appoint the Appellant to the Consulting Medical Staff and encourage the current urologists on Associate and Active Staff to use his services to share weekend and holiday coverage.

DATED at Vancouver, British Columbia this 12th day of March, 1996.

M. Graham Clay, M.D., Chair Norah Andrew, C.G.A., Member Robert S. Sorochan, D.D.S., Member

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