July 31, 2014

Second Appeal



Second Appeal
to the
Health Professions Appeal and Review Board
(the Board / HPARB)
Ontario, Canada

This is a continuation of the second blog dated February 17, 2013. Please read that and the first blog dated January 8, 2012 for a more detailed account of urologist Dr. Victor Mak’s coldblooded medical malpractice, his lies, cover ups, and falsification of his operative note. The blogs also give an account on the depravity within the self-regulated College of Physicians and Surgeons of Ontario that shielded Dr. Mak of his surgical incompetence and professional misconduct.

Summary of Complaints against Dr. Victor Mak


Date:       May 22, 2008

Place:      York Central Hospital, Richmond Hill, Ontario, Canada
(renamed Mackenzie Richmond Hill Hospital)
Surgery:  elective radical prostatectomy with bilateral lymph nodes dissection
Surgeon: Dr. Victor Mak, peer assessor of the College of Physicians and Surgeons of Ontario, Canada (the College / CPSO)

Dr. Victor Mak’s Surgical Incompetence and Errors:

  1. Dr. Mak cut out fatty tissue instead of lymph nodes.
  2. Dr. Mak did not remove the whole prostate glands, he left behind cancerous cells
  3. Dr. Mak severed the patient Mr. Ching’s 3 veins during the prostate surgery
  4. Dr. Mak bled out Mr. Ching’s total body blood volume in less than 45 minutes into surgery
  5. Dr. Mak perforated Mr. Ching's rectum intra-operatively
  6. Dr. Mak prescribed bowel injury antibiotics Flagyl and Cipro one day after the surgery
  7. Dr. Mak performed oversewing of the urethra and the prostate surgical site at the rectal repair surgery
  8. Mr. Ching had his bleeding colon removed in a 3rd surgery in 12 days
  9. Mr. Ching died after 43 days of stay in York Central Hospital

Dr. Victor Mak Covered Up His Surgical Incompetence and Errors by:


Lying:
  1. Dr. Mak lied about his incomplete lymph nodes dissection
  2. Dr. Mak lied that all cancer cells had been removed
  3. Dr. Mak lied that Mr. Ching was cured for cancer. 
Omitting facts:
  1. Dr. Mak omitted in his operative note that he severed 3 veins during the prostate surgery.
  2. Dr. Mak wrote his prostate surgery operative note 2 days after the rectal repair surgery that he assisted in. Dr. Mak did not disclose a rectal injury in his operative note.
 Falsifying operative note:
  1. Dr. Mak falsified his operative note by saying “no single bleeding blood vessel was encountered”
  2. Dr. Mak attributed the massive bleeding to only “oozing” of blood to cover up the more than 4000 cc of blood loss.
  3. Dr. Mak assisted in the rectal repair surgery and eye-witnessed the damage he had done in the prostate surgery. Dr. Mak falsified his delayed operative note citing that “caution was taken not to injure the rectum” to cover up he had injured Mr. Ching’s rectum.
  4. Dr. Mak attributed the perforation of the rectum to other doctors’ rectal examinations. 
  5. Dr. Mak prescribed Flagyl and Cipro one day after the prostate surgery, a drug commonly used to treat bowel injury infection. Dr. Mak must have known he had injured Mr. Ching’s rectum.

New Complaint to the College


Dr. Mak denied his intra-operative rectal injury inflicted upon Mr. Ching in his prostatectomy. The College accepted Dr. Mak’s denial even when Dr. Ali Otman Fiture’s post-op consultation report clearly reported a tear on Mr. Ching’s rectum. 


This consultation report was deliberately removed from the 2 College investigations so it was convenient for the College Committee to fabricate a claim to blame the rectal injury as a “thinning out” of the rectum during the prostate surgery and that it was caused by subsequent rectal examinations by the 2 vascular surgeons (Dr. Ali O. Fiture, general and vascular surgery and Dr. Luke Long Quoc Bui, general surgery). The Board accepted the Committee’s erroneous claim and refused to even somewhat ask the where about of the missing consultation note. The Board never somewhat probed into the reasons why 2 vascular surgeons had to examine Mr. Ching’s rectum post-op when Mr. Ching only went in for an elective prostate surgery, not a rectal surgery.

The Chings filed a new complaint to the College requesting an investigation on the rectal injury. The College is due to render a decision.

A Note on the College’s Investigations and the Board’s First Appeal Decision


Documents supporting the clinical evidence that substantiated the allegations against Dr. Mak’s lies and incompetence were missing in the College’s first investigation:



  1. Anesthesia report indicating rapid loss of total body volume of blood within 45 minutes into the prostate surgery
  2. CT scan showing abscess due to rectal injury
  3. Dr. Ali Fiture’s consultation report showing a tear in the rectum
  4. Doctor’s order by Dr. Mak in which he prescribed antibiotics Flagyl and Cipro for bowel injury one day after surgery


The Board ordered a further investigation. The missing documents were re-authorized by the Ching’s family to be released to the College for a further investigation.

A Flagrant Abuse of Power

Interestingly, there was no indication in the second record of investigation which of the missing documents (the Board labeled them “additional information”) had indeed made their way to the assessor Dr. Ian Ronald Davis. Among these missing documents, the incriminating Dr. Fiture’s consultation report confirming a tear in Mr. Ching’s rectum was deliberately removed in both of the College’s investigations.

In addition, at least twelve pages of nurses’ notes charting post operative daily body temperatures of up to 38.7 C were not included in the record of investigation. By removing the crucial consultation report and the records of post-operative elevated body temperatures records, the College cleverly wove a tapestry of deception and story fabrication to serve its purpose of acquitting Dr. Victor Mak of his wrong doings.

A Useless Board

The Board stood on guard for the College in its fraudulent acts. The Board’s second decision was self-contradictory and full of distorted facts. The Board was extremely biased and bullying. Players from the medical and the legal professions included the following intelligent live forms:

From the Board:

Bonnie Goldbery, lawyer
Lydia Stewart-Ferreira, lawyer
James Dault, retired high school principal

From the College:

Dr. Robert John Byrick, MD
Dr. Nasimul Huq, MD
Dr. Robert Mervyn Letts, MD
Dr. James Wilson, MD
Dr. Ian Davis, MD, assessor
Mr. R. Pratt, public member

    Margaret Obermeyer: investigator in the two CPSO investigations

The Board’s extremely prejudiced ruling favouring the College and Dr. Mak was a blatant mockery of the College investigation process and denigration to the Ontario health care profession. The Board presented a total of 67 items all describing high legal and judicial technicality to justify its decision, however, under even casual scrutiny, it is obvious that none of them is adequately reasonable to provide medical and clinical proof to vindicate Dr. Mak of all the complaints filed against him. By the same token, none of these 67 items provided by the Board can refute all sound, scientifically and clinically credible evidence provided by the Ching’s medical advisor for this case. All the supported documentations and direct, not circumstantial evidence were regrettably ignored by the Board.

Board’s Baseless Reasoning

vs.

Ching’s Potent Clinical Evidence


On Intra-Operative Rectal Injury and Infection

Non-exhaustive essential information 

Board:
“an adequate investigation (by the College) 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.”

Facts:
One issue raised in the complaint was that Dr. Mak caused intra-operative rectal injury while performing prostatectomy. In order to facilitate the College to conduct an adequate but non-exhaustive investigation with essential information relevant to making an INFORMED decision, the Chings painstakingly indexed hospital records to both the College for their investigation and the Board for their appeal decision.

College:
“the patient’s post-operative condition was not consistent with a rectal perforation. Significant findings (such as fever, elevated white blood cell count.....) would be expected if the injury occurred during the surgery.”

Facts:
There was no indication or submission by the Board that they had asked whether the Committee had sought such essential information, even in a non-exhaustive manner, which is relevant enough for the Committee to make an informed decision on the above claim that rectal injury was not the result of the prostate surgery.

The Chings submitted to the Board hard copies of hospital records showing days of fever and continued rises of white blood cell counts immediately post op. The Board should have REASONABLY confronted the College on the adequacy of their claim that there was no fever and no elevation in white blood cells post op.

Was the Board’s acceptance of the Committee’s claim that there were no fever and white blood cell count elevations deemed reasonable given the fact that, before them the Chings had presented pages of hospital documents showing fever and elevation of white blood cell counts daily post-op, both of which are significant indications of an infection?

The Board accepted, but never doubted the Committee’s opinion that there was no infection from rectal injury as an adequate informed decision in the face of direct, solid and not circumstantial evidence from hospital records showing the presence of infection.

Somewhat probing examination

Board:
“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.”

Facts:
By agreeing to the decision of the Committee that there was no elevated white blood cell counts or fever, the Board must have agreed to the fact that the Committee’s decision can reasonably be supported by the information before it and can withstand a somewhat probing examination.
The Board knowingly supported the Committee’s decision that there was no fever when hospital records clearly showed fever daily since the operation. The Board knowingly supported the Committee’s decision that there were no elevated white cell counts when hospital records clearly showed extreme elevation of white cell counts after the surgery.

The Board did not explain why they believed that the Committee’s decision that there were no fever or white cell count elevations can withstand a somewhat probing examination. The Board would have more adequately examined the Chings’ appeal if they had conducted a SOMEWHAT probing examination by simply asking the Committee how they could explain why their medical experts insisted one way and the direct, not circumstantial hospital records clearly showing the contrary.
 
Objective evidence

The Board, in order to downplay the non-defendable flaw of the Committee’s erroneous mistakes on concluding there was no fever or infection, wrote

“The objective evidence of infection the day after surgery was thus only one basis on which the Committee formed its conclusions and not a sufficient ground for the Board to determine a decision is unreasonable.”

Fact:
The direct, not circumstantial evidence showing signs of infection is the most important and irrefutable fact and the key point in proving the Committee was unreasonable in its decision; the Board is irresponsibly unreasonable to discard this strong evidence and not to even attempt to somewhat probe the Committee for an explanation but chose to protect Dr. Mak with its biased opinion.

Bullying and swindling of truth

Board:
“…much was made of a nursing note obtained by the Applicant that indicated that the patient may have had a post-operative elevated temperature, which would appear to contradict the Committee’s analysis in the 2012 decision that the patient did not show signs of infection...”

Facts:
  1. First, it is not just “a nursing note”, the direct, not circumstantial evidence the Chings submitted consists of numerous, daily nursing entrances, showing daily fever. According to hospital charts, at least 12 pages of nursing notes had documented post-operative fever for 7 consecutive days up to the rectal repair operation.
  2. Second, it is not the patient “may have had a post-operative elevated temperature...,” the patient definitely has had, NOT may have had, daily elevated temperature and not just “a” post-operative elevated temperature.
By distorting facts and swindling of the truth, the Board made the obvious ongoing morbidity of Mr. Ching to look like just an isolated incidence which they claimed
 
“The objective evidence of infection the day after surgery was thus only one basis on which the Committee formed its conclusions and not a sufficient ground for the Board to determine a decision is unreasonable.”

Ignorance of information

 
Board:
“…the Board wishes to note that the Committee, in its initial investigation, had before it progress notes that documented the patient’s elevated temperature postoperatively. Therefore, this information was before both panels of the Committee in their analysis of the case.”

Facts:
The Board was self-contradicting,

  1. first, it was on the same line with the Committee that there was “no fever” or white blood cell counts increase,
  2. then, it stated that the patient “may have had fever”,
  3. now, it says “documented patient’s elevated temperature postoperatively” is before both panels of the Committee.
The truth is in the hospital charts showing Mr. Ching was running high fever post-operatively for 7 consecutive days.

The Board chose to ignore the Ching’s medical advisorʼs contention that the Committee either deliberately ignored the medical information before them or lacked the basic skill to understand it. 

Board:
“…there has been no information presented to support the applicant’s agent’s assertion that eight physicians either chose to deliberately ignore the medical information before them or lacked the basic skill to understand it.”

Facts:
  1. The “progress notes that documented the patient’s elevated temperature postoperatively” was one of the information the Ching’s agent presented. For the Board to conclude that the Ching’s medical advisor did not have information presented to support his doubt that the Committee either deliberately ignored the medical information before them or lacked the basic skill to understand it is thus unreasonable.
  2. The Board already acknowledged that the medical information was before the Committee. For the Committee to say there was no fever, no increase in white cell count and no elevation of temperature is a proof that they either chose to ignore these facts or the medical experts of the Committee do not have the knowledge to understand what normal body temperature is, what fever is and what normal white blood count is. For the Board to conclude that the Ching’s medical advisor had not presented evidence to support his claim that the Committee either chose to ignore medical facts or did not have the basic skill to understand it is totally unreasonable.

Biased Decision


The Board is extremely biased, bullying and coercive in its decision.

Unexplained massive blood loss

Concerning the more than patient’s total-body-blood-volume of blood loss during the first 45 minutes of the prostate surgery, the Board accepted the unproven explanation by the Committee that during the surgery “OOZING” of blood is reasonable to explain Mr. Ching’s larger than normal blood loss. Again, the Committee did not present supportive documentation to support their claim. 

Facts:
  1. In an October 22, 2008 letter to the College, Dr. Hy Avi Dwosh, the ICU director acknowledged there was tremendous and significant amount of blood loss: “Intra-operatively, the patient had a tremendous amount of blood loss of approximately 4.5 litres. Because of the significant amount of bleeding…”
  2. If the Board had looked at the anesthesia record and the blood bank records they should be able to see that every 10 minutes, a unit of blood was transfused just to keep up with the blood loss. This significant amount of rapid blood transfusion that the Ching’s medical advisor had argued was also recorded at the first Board review. Again, this fact was recorded in black and white by the anesthesiologist and the blood bank.
Thus, the Board was biased in ignoring this truth but chose to accept the un-supported submission of Dr. Mak that blood loss was due to “oozing”.
  1. Data from a 20-year study of blood loss during open prostate surgery has a median of 900 cc of blood loss with a standard deviation of 1032 cc does not support that “oozing” could be the cause of more than 4000 cc blood loss in a 45 minutes time span in a person (Mr. Ching) with approximately 3500 cc of total body blood volume (Prostate Cancer Prostate Disease, 2009, 12(3), 264-268). Therefore, “oozing” as claimed by Dr. Mak, could not be the cause of such massive and rapid bleeding.
Again, even presented with clinical facts and this credible medical literature, the Board chose to ignore them but accepted the non-supported statement of Dr. Mak that “oozing” was the cause of the unexplained massive blood loss.

The Board is biased without even somewhat probing into the truth, especially when the medical advisor can produce essential information—anesthesiologist’s record, blood bank records, and medical literature to prove “oozing” is not the true cause. This would have been non-exhaustive for the Board to make an informed decision.

Anyone can see the flaws in the reasonableness and adequacy of the Boardʼs appeal review. Even a lay person can see days of fever and white blood cell increases from the hospital records and can also see the denial of fever and white blood cell increases by the Committee. Therefore is it reasonable for the lay board (the Board panel labeled themselves as such) to accept that there is no fever or white cell count increase? Even a lay person will be able to deduce from the anesthesiologist’s and the blood bank records that massive blood loss and massive rapid transfusion occurred within a 45-minute time span as massive bleeding. Therefore, is it reasonable for the lay board to accept the un-supported claim by Dr. Mak that only troublesome “oozing” and “no single bleeding vessel was encountered” during the surgery? Even a lay person can differentiate “oozing” from “bleeding”, therefore, is it reasonable that this respectful lay Board cannot see the difference between the two, especially with the amount of blood loss within so short a time span?

The assessor was twice concerned about this blood loss as he stated “The amount of blood loss (4 liters) is of concern. I would have expected Dr. Mak to have made a comment on the nature and cause of the high volume loss.”
 
The Chings also stressed this point in their written and oral submissions to the Board, is it reasonable for the Board not to ever consider this fact but accept whatever the Committee said?

Doctor’s order—antibiotics

Another piece of essential information that suggested Dr. Mak suspected an intra-operative rectal injury but the Board ignored is the doctor’s order. The Chings alleged that the Committee ignored a doctor’s order in which Dr. Mak prescribed post-operative antibiotics Flagyl and Cipro 1 day after surgery to treat abdominal infection caused by bowel injury. Dr. Mak lied about the rectal injury citing that “caution was exercised not to injure the rectum” in his prostate operative note written after the rectal repair surgery.

College:
“Antibiotics were provided to [the patient] as a preventative measure and not because an intra-operative rectal injury was suspected.”

However, the Committee contradicted itself as stated by the Board:
“…the Committee’s analysis in the 2012 decision that the patient did not show signs of infection the day after surgery.”

Facts:
  1. the Board did not question the truthfulness of such non-agreeable comments by the Committee but accepted that the doctor’s order was to prevent infection the day after surgery when the Committee contended that there was no infection.
  2. the Chings submitted direct, not circumstantial evidence of many nurses’ notes to prove there were fever and elevated white blood cell counts post-op, therefore the patient showed signs of infection resulting from bowel injury.
  3. preventive antibiotics Ampicillin and Gentamicin were given by the anesthesiologist before the surgery on May 22, 2008, but at 8:00 p.m. on May 23, 2008 Dr. Mak prescribed Flagyl and Cipro, both of which are typical antibiotics for treatment of abdominal infection from bowel injury. By not pinpointing the antibiotics in this doctor’s order in its decision, the Committee was able to mislead by generalizing the use of antibiotics to deflect attention.
  4. this previously missing documentation cannot stand a somewhat probing examination, thus the Board was unreasonable not to take heed of the Ching’s submitted argument against the Committee’s decision on this doctor’s order.
Material evidence tampering

The Board failed to review and interpret the Ching’s appeal within the scope of its mandated legislated power. Pursuant to the Regulated Health Professions Act, 1991, the mandate of the Board in a complaint review is to consider either the adequacy of the Collegeʼs investigation, the reasonableness of its decision, or both. The Board has no authority to interpret or RULE on an allegation that the College had not investigated. In the Chings’ complaints submitted during the first Board review, they stated that 4 essential documents were missing from the investigation file after the Ching’s medical advisor “red-flagged” such documents to the investigator. In this respect, certain party(ies) had violated the Regulated Health Professions Act 1991, c.18, sched.2, s.76(3) (where it states “Obstruction Prohibited—no person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation.”) The Chings reauthorized release of these missing documents, however, mysteriously, the one piece of direct, not circumstantial evidence, Dr. Fitureʼs consultation report showing a rectal tear (see attached report), was still not accounted for during this further investigation.

The Chings specifically requested that the College investigate into this criminal act of tampering of evidence during their further investigation. However, the College did nothing, and yet the Board stepped in to relieve the College of its duty to investigate this allegation. 

Board:
“While at the initial Review, the College representative could not account for the missing documentation; this point is now MOOT because the Committee, at the Board’s directive, obtained it…”

Facts:
By ruling that “this point is now moot”, the Board essentially wiped an alleged criminal act by certain party(ies) off the record. The Boardʼs ruling on an allegation the Chings filed with the College without the College even somewhat investigate into it is not only unjust but also does not constitute to the Boardʼs sole mandate of interpreting the reasonableness and adequacy of the Collegeʼs investigation.

Supreme Court of Canada case

The Chings have presented solid, facts-supported arguments to challenge the College’s decision on their appeal. The most heart saddening aspect is that the Board, as a final straw to justify their inadequacy and unreasonableness, brought forth a Supreme Court of Canada case, to shield and deter further questioning by others.

Board:
Newfoundland and Labrador Nursesʼ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 in which Abella J stated: 

“Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.”
The Boardʼs analysis of this case would be interpreted as this:

“The Supreme Court has held that reasons need not include all the arguments or details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result.”
A lay person’s common sense interpretation of this Supreme Court opinion would be that IN THE ABSENCE of solid and irrefutable facts and evidence which the reviewing judge would have preferred, then the reviewing judge may uphold the validity of either the reasons or the result under a REASONABLENESS analysis even though the reasons may not include all the arguments, statutory provisions, jurisprudence or other details.

Facts:
The Chings alleged that Dr. Mak had caused rectal injury in Mr. Ching during the prostate surgery and the College ruled that:

“Significant findings (such as fever, elevated white blood cell count…) would be expected if the injury occurred during the surgery.”

So according to the Supreme Court model, the reviewing judge would have preferred to see evidence or arguments that there were or were not fever(s) and elevated white blood cell count(s).

At the time of the Board appeal review, the Chings did present not only “a nursing note” but direct, not circumstantial evidence of daily fever and daily increases of white blood cell counts. What else evidence even a Supreme Court Judge would have preferred? The Supreme Court stressed that the validity of the reason or result should be under a reasonableness analysis by the reviewing judge in the absence of solid evidence the judge would have preferred to have, yet now with the solid evidence that the reviewing judge would have preferred to have, the Board reasoned with the Committee that there was no intra-operative rectal injury. Was the Board’s ruling reasonable?

Another allegation filed against Dr. Mak was that he falsified and omitted facts in his operative report which is ground for disciplinary hearing by the College. In the operative report, Dr. Mak claimed that “oozing” of blood is the explanation for the amount of blood loss is a false statement. The Committee contended, and the Board concurred, that the “oozing” of blood statement is true and that the surgeon did not falsify or omit facts in his operative report.

According to the Supreme Court case, what are the arguments or details or any preponderance of evidence the reviewing judge would have preferred? Since there is no confession by Dr. Mak or video tape of the whole surgery that every reviewing judge would prefer to have, then the next best supporting argument is whether or not there is existence of preponderance of evidence by both sides to support their claim so that the reviewing judge could draw a reasonable conclusion.

The only evidence the Committee could draw on was:
  1. “the operative note does not comment on blood loss”
  2. “the bleeding is usually not from a discrete vessel but oozing from the pelvic venous plexus”
None of these could explain the massive and rapid blood loss that is a result of active bleeding from major blood vessels.

Facts:
The Chings, on the other hand, have preponderance of direct, not circumstantial evidence to support the burden of proof that there was massive bleeding from the surgical site other than just “oozing” of blood.

Both the anesthesia and the blood bank records indicated that the massive and rapid transfusion amounted to one unit of blood every 10 minutes and that even after 4000 cc of blood transfusion in less than 45 minutes, the body blood volume in the patient was still less than that of his own blood volume before the surgery.

Also, the Chings had presented to the Board medical literature of clinical studies over a 20-year period demonstrating the range of usual blood loss in open prostate surgery. “Oozing” of blood as stated in Dr. Mak’s report definitely cannot be used as a credible and true explanation of the amount of blood loss in Mr. Ching. To reason whether or not “oozing” of blood is a true statement made by Dr. Mak in his operative report the reviewing judge would prefer to have, the Board is presented with other preponderance of evidence which include: 

  1. “the operative note does not comment on blood loss”,
  2. “the bleeding is usually not from a discrete vessel but oozing from the pelvic venous plexus”,
  3. direct, not circumstantial hospital records from anesthesia and blood bank demonstrating massive and rapid blood loss,
  4. medical literature showing the amount of blood loss in Mr. Chingʼs surgery cannot be explained statistically by 20 years of clinical data,
  5. letter by Dr. Dwosh to the College acknowledging the tremendous bleeding,
  6. assessor’s concerns about this high volume blood loss and,
  7. even the Committee itself had indicated that “Dr. Mak should have described in some detail the reasons for the blood loss and his steps to control the blood loss in the operative note.”
The Supreme Court model requires that the reviewing judge make a conclusion under a reasonableness analysis in the absence of evidence the judge would prefer to have; in the absence of Dr. Mak’s confession and a video tape of the surgery that the Board would definitely prefer to have, the above-referenced seven evidence submitted by the College and the Chings, should be enough ground for the Board to rule whether the statement of blood “oozing” in Dr. Mak’s operative report is a true statement or not under their “reasonableness analysis.”

Assessor’s concerns

The allegations against Dr. Victor Mak are statements of facts including he lied about the failure to dissect out lymph nodes, his unexplained nature and cause of the high volume blood loss to merely “oozing”, his delayed operative report in which he did not disclose the harm done to Mr. Ching’s rectum, all of which showed the magnitude and gravity of Dr. Mak’s medical errors and professional misconducts. 

The assessor had twice raised concerns about Dr. Mak’s lymph node dissection, the high volume of blood loss, and his delayed dictation of the operative note. The College agreed. The Board agreed with the Committee’s concerns.

Board:
“The operative note does not comment on blood loss...In the Committee’s view, [the Respondent] should have described in some detail the reasons for the blood loss and his steps to control the blood loss in the operative note.”

“However, the Committee emphasized that it remained concerned that the Respondent did not sufficiently document the intra-operative blood loss, and did not document the operation in a timely fashion.” 

“…given the assessor’s concerns about the extent of the node dissection, it was reasonable for the Committee to express concern about this aspect of the Respondent’s approach to the surgery…” 

Facts:
All these lip-service concerns did not result in Dr. Mak being held accountable for his surgical incompetence and his professional misconduct in treating Mr. Ching. It is not reasonable and not adequate that these concerns would meet the standard of practice of a Urologist given the severity of Dr. Mak’s incompetence and professional misconducts that he was alleged of. By merely saying that they are concerned does not impugn Dr. Mak for his lies and omission of facts in his operative report which is a violation of the College’s codes of conduct. The Board’s agreement to the College’s concerns does not demand accountability. The Board must have agreed with the College that the standard of practice of a urologist will include severing veins, unexplained massive blood loss in surgery, no dissection of lymph nodes, rectal injury, lies, falsifying operative notes, and missing documentation twice, not once.

Additional information

Board:
“… the Board returned the matter to the Committee for further investigation as it identified documents that were not part of the original Record of Investigation and were not provided to the independent assessor. Specifically, the Board directed the College to provide the assessor with copies of the Doctor’s Order; operative consents; anaesthetic records; the May 30, 2008 consultation report from a general vascular surgeon, Dr. Fiture; and the CT scan report; and to reconsider this matter in light of these records.”

“... additional documentation was obtained and provided to the Committee and the assessor.”
“... The second panel of the Committee had before it this opinion and the additional documentation…”

Facts:
  1. First, the Board specifically directed the College to provide the missing documents, i.e., the additional information to the assessor all of which the Chings re-authorized their release to the College for its further investigation. However, among the still missing pages of the nurses’ charts that recorded daily fever post operatively, the May 30, 2008 consultation report by Dr. Firture that shows a tear in Mr. Ching’s rectum was again NOT included in the Record of Investigation. Therefore, the Board was not giving true and reasonable statements.
  2. Second, the assessor did not indicate what additional information he was provided with. But for certain, one additional information was NOT sent to the assessor was Dr. Fiture’s consultation report because this document was NEVER included in both Records of Investigation. Therefore, the Board was not giving true and reasonable statements.

The Board is inadequate and unreasonable not to question the College on the where about of the additional information and why it was not included in its investigation when the Board had directed its return.

   3.     Third, the board wrote:

“The Board reviewed… all the documents contained in the Record of Investigation (the Record) in its consideration of the adequacy of the Committee’s investigation and the reasonableness of the Committee’s decision.” 

The Chings would expect “ALL the documents” to include ALL essential documents they submitted including those that the Board redirected their return. With the daily records of fever and the additional information still omitted in the Record, the Board was unreasonable to state that it reviewed ALL the documents contained in the Record in its consideration of the adequacy of the Committee’s investigation and the reasonableness of the Committee’s decision.

With documents still missing, the matter is still alive and active.

Qualifications of the panel

The Board has further victimized the Chings by failing to deal with their appeal in a sensitive and respectful way. The Board ignored their clinically credible and fact-supporting arguments but accepted the College’s claims when it cannot even produce one single piece of supporting documentation. 

Board:
“The Applicant’s view that the Committee unreasonably addressed her concerns appears to stem from her agent’s medical disagreement with all of the Committee’s conclusions.”

Facts:
The Chings’ agent agrees solely with direct, not circumstantial, black and white hospital records and clinical data and facts.

Board:
“…a committee of physicians assessing the conduct of another physician is entitled to draw on its expertise when considering the member’s medical judgment. However…there has been no information presented to support the Applicant’s agent’s assertion that eight physicians either chose to deliberately ignore the medical information before them or lacked the basic skill to understand it.”

Facts:
The Chings’ agent has submitted and presented both oral and written information which includes hospital records, literature, and statistics to support their complaints and appeals. When the medical experts cannot see actual fever, abnormal white cell counts, and infection recorded by the medical information before them, then they either lacked the basic skill to understand it or they ignored it.

Misquotes 

Board:
“…the Applicant has contended that the Committee “never answered our questions,” referring to their eight identified complaints and further concerns expressed in their written submissions.”

Facts:
The Chings on numerous occasions made inquiries to the College, specifically to the two-time investigator Margaret Obermeyer on the “where about of the missing documents” and the “party(ies) responsible for BREAKING THE REGULATED HEALTH LAW “OBSTRUCTION PROHIBITED”, THE COLLEGE NEVER ANSWERED THEIR QUESTIONS.”

Board:
“…the Board is not persuaded by the Applicant’s allegations that the Respondent or any of his colleagues at the hospital forged or falsified documents.”

Facts:
All along the Chings contended that DR. VICTOR MAK falsified and forged his delayed medical record by writing an untrue operative note. The Chings submitted that the hospital confirmed to them what documents were released to the College when they made an inquiry into the missing documents.

This point is now moot

Board:
“While at the initial Review, the College representative could not account for the missing documentation; this point is now moot because the Committee, at the Board’s directive, obtained it and assessed it in the context of the Applicant’s complaint.”

Facts:
One same piece of documentation that the Chings had re-authorized to release is still missing in the 2nd record of investigation. The Chings alleged party(ies) involved in material tampering and violated the section “Obstruction Prohibited” as set out by the regulated health law, for the Board to say “this point is now moot” and not question the College to account for repeated missing documentation, the Board is implying that this law has no purpose. The Board is illogical in its decision.

Complaint to the Ombudsman


The College erred in its 2 investigations by ignoring and even by deliberate exclusion of solid hospital records which are incriminating evidence to support the complaints against Dr. Victor Mak. However, the Board chose to only favour the Committee’s totally unsupported opinions. Had the Board been aware of its own inadequacy and unreasonableness and the College’s contradictions in its nonfactual opinions and deceitful rhetoric in assessing Dr. Mak’s serious surgical incompetence and the credibility of his operative note, the Board would have considered the Chings’ appeal in a different light. 

The ombudsman’s authority when reviewing decisions of administrative tribunals such as the HPARB includes whether:

  1. Its decisions were based on the available evidence
  2. adequate reasons were provided for its decisions
  3. The ombudsman can make recommendations to address any problems he identifies.

Ombudsman:
“…he had reviewed the records of investigation and was satisfied with the HPARB that ALL evidence was reviewed.”

“Our office is satisfied with the Board…considered the evidence before it in rendering its decision, and set out reasons to support its finding”

Facts:
  1. The Board’s decisions were not based on available evidence because the College has not presented one single piece of available evidence except non-supported opinions.
  2. The ombudsman did not present one single reason why he considered “ALL evidence was reviewed” when concrete evidence was removed from the records of investigation.
  3. The ombudsman must have considered the Board’s self-contradicting and fact-distorted findings as adequate reasons for its decisions.
  4. The ombudsman had available to him copies of the omitted evidence forwarded by the Chings, however, he could not identify and address the obvious problem in the Board’s decision
The ombudsman was not able to see beyond the empty claims, the non-evidence based, the misleading, and the non-factual opinions of the Committee which the Board based its decision on.

Ombudsman:
“…the ombudsman…does not consider the facts of a case, as if he were the original decision-maker.”

Facts:

The Board did not consider the facts of this case; the ombudsman does not consider the facts of a case. The Board in support of the corrupt CPSO has found an ally in the ombudsman. 

The Chings rebutted the ombudsman’s inaction towards the Board’s inadequate and unreasonable decision and requested the ombudsman to retract its decision. The ombudsman refused a meeting with the Chings.

Ombudsman:
“…we will not be taking any further action on your complaint…any further correspondence on this matter, will be kept on file but not acknowledged.”

Summary


The surgeon in question in the investigations is urologist Dr. Victor Mak. 
Four renowned medical experts at the Committee

Dr. Robert John Byrick, MD
Dr. Nasimul Huq, MD
Dr. Robert Mervyn Letts, MD
Dr. James Wilson, MD
Mr. R. Pratt, public member

unanimously testified that they did not see fever, elevated white blood cell counts, or infection when documented hospital charts clearly showed the opposites. These experts could not tell normal body temperatures from fever; they could not understand what infection is; they believed antibiotics would be used one day after the surgery for prevention of infection and not for treatment of infection; they could not tell the difference of “oozing of blood” from the traumatic bleeding that drained out a patient’s total body blood volume in less than 45 minutes; they believed a patient’s rectum “would have been thinned out” and “susceptible to tear” after a prostate surgery; they blamed rectal injury was caused by repeated rectal examinations by vascular surgeons after prostate surgery and not by the urologist during the prostatectomy; they could not tell lies from truths.

Dr. Ian Davis, the assessor, did not indicate what additional information was presented to him, yet he in both investigations ruled in the absence of crucial hospital records that Dr. Mak had met the standard of practice of a urologist. For this reason, the standard practice of a urologist would include:
  1. Severed 3 veins
  2. Unexplained massive bleeding that drained out a patient’s total body blood
  3. Failed lymph node dissections
  4. Intra-rectal injury
  5. A "wait and see" falsified operative note
  6. Missing documents
  7. Lies
  8. Omission of facts in operative note
  9. Violating College professional codes of conduct

Margaret Obermeyer was the two-time investigator under whose watchful eyes selected solid hospital records went missing, not once but twice.

The Board’s panel of lawyers Bonnie Goldberg and Lydia Stewart-Ferreira, and high school principal James Dault ignored all solid clinical evidence but sided with the un-supported College decision and returned a highly biased and non-evidence based decision. The Board was forgiving to the College for its violation of the section “Obstruction Prohibited” of the regulated health law in which it states—no person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation.” The Board ruled the missing documents as “moot” to hold no party(ies) accountable for evidence tampering. 

The Ontario ombudsman Andrè Marin’s office was satisfied with the Board’s decision as he claimed that the Board had “reviewed ALL documents” when in fact not ALL documents were included in the review.

Conclusion


The self-regulatory body of the College of Physicians and Surgeons of Ontario is totally a moral bankrupt. It is deficient in accountability and transparency. It does not hold up its own rules and regulations towards a member doctor Dr. Victor Mak who has violated the Colleges codes of conduct, instead it protects Dr. Mak with unsupported opinions and to the extent of breaking a health law as is in the Ching’s case. 


When a potent mix of the privileged elite, corrupt government bodies, and an inept legislature exists in a society it can subvert truths and justice. The College of Physicians and Surgeons of Ontario, the Health Professions Appeal and Review Board of Ontario, the Ombudsman of Ontario, and the Ministtry of Health all played a role in the acquittal of Dr. Mak of his medical malpractice and his professional misconduct.

The Ching’s ongoing fight for accountability and justice with the College was met with ridicules as the Ministry of Health and the Attorney General could not intervene; the Ministry has a health law “Obstruction Prohibited” in place but it serves no purpose as it was not enforced thus allowing individuals to act above it, not once but twice; Members of Provincial Parliament of Ontario ignored the Chings’ pleads for help but listed the Chings on their political donation emailing list; a main stream Canadian media finds the corruption within these government bodies not worthy of reporting. Doctors are well protected, not patients. An incompetent doctor who violated the College Codes of conduct could get away with it while a victim trying to seek justice and accountability is stifled by bullying authorities within a collusion culture. Ontarians need a transparent and accountable health care system. 

JUSTICE MUST NOT ONLY BE DONE,
JUSTICE MUST ALSO BE SEEN TO BE DONE.

The Chings are awaiting a decision from the College on their new complaint on the intra-operative rectal injury. Stay tuned.

The Chings’ case has been followed and published by a mainstream Chinese newspaper.