discipline summaries
the use of an enhanced lens are not covered by OHIP.
The patient is required to pay for the uninsured portions of RLE.
Nine patient charts were in evidence. Eight of these
patients were referred to Dr. DEF by optometrists.
The Committee found that payments of between
$100 and $400 had been made to the referring optometrists in relation to seven of these patients.
The College called Dr. Y as an expert witness. The
Committee accepted Dr. Y as an expert in the field of
ophthalmology. The Committee noted that Dr. Y does
not offer RLE in his practice. Dr. Y carried out an assessment of Dr. DEF’s practice. Dr. Y opined that the
payments that Dr. DEF made to optometrists represented a payment for the referral itself. In his view, he
did not consider the payment was to obtain information, as the information in the charts was not beyond
what would be available following a standard cataract
procedure. He testified that in his own practice, information flows freely from optometrist to ophthalmologist and there is no charge for this.
The defence called Dr. Z as an expert witness. The
Committee accepted that he was an expert and qualified to give evidence in the area of ophthalmology
generally and in particular in the areas of cataract
surgery and refractive lens exchanges. Dr. Z testified
that co-management between an ophthalmologist
and optometrist is extremely common. Co-management fees have been common practice for 20 years.
Dr. Z reviewed Dr. DEF’s practice. Dr. Z concluded
that Dr. DEF was paying optometrists for information results only when he received that information.
It was Dr. Z’s view that Dr. DEF was seeking data
from optometrists for refractive results, as there is
no reason for an optometrist to check a patient at
three months, six months or a year, other than to
get refractive results, because it is known by then the
operation was perfectly fine. Dr. Z testified that Dr.
DEF wanted this data to see if the refractive correction was holding.
Dr. DEF also testified. He described RLE in detail,
and explained how he used information gathered at
various times after the performance of RLE. He testified regarding the payment system he used to make
payments to optometrists and his purpose in making
such payments.
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Reasons for Penalty
The Committee found that Dr. DEF’s payment of
optometrists was for the purpose of collecting data,
which he used to analyze and enhance refractive
outcomes in his care of patients. The Committee also
found that Dr. DEF communicated appropriately
with patients and optometrists and found nothing illegitimate or unethical in the shared payment scheme
he used.
The Committee gave weight to the experience of
the defence expert, Dr. Z, who testified it was difficult to get reports back from optometrists without
providing payment. The Committee accepted Dr.
DEF’s description of the difficulty in obtaining postoperative information from optometrists, and his
testimony that after he stopped providing payments
to optometrists, he stopped receiving reports.
The Committee rejected the opinion of the College’s expert witness, Dr. Y, that the payment made
by Dr. DEF to optometrists was, or was intended as,
a kickback or a payment to promote future referrals.
The Committee accepted that Dr. DEF is a highly
skilled and busy ophthalmologist. The assertion that
Dr. DEF would pay an optometrist an improper fee
to cement future referrals was purely speculative, and
in the Committee’s view, without merit.
The Committee found that Dr. DEF paid the referring optometrist for specific information he required
to analyze and enhance outcomes in his RLE practice. The Committee accepted that he would likely
not have received such information without payment. The Committee found this did not amount to
wrongdoing.
The Committee accepted that Dr. DEF had given
thought to consent on the subject of fee sharing,
informing the patient that payment would be made to
the optometrist and that they should not expect any
extra charge related to the procedure. The evidence of
Dr. DEF, supported by the records, was that he had
discussions with patients, explained the issues and
offered patients the opportunity to ask questions. The
Committee found that Dr. DEF had made a considerable effort to be clear and discharge his duty to his patients, and that there was no wrongdoing on his part.
Therefore, the Committee found that the allegation
of professional misconduct was not proved.
Dialogue Issue 2, 2016
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