Health authority’s disciplinary process ‘unfair’
What a mess. Again.
A well-respected but outspoken doctor facing anonymous accusations from disgruntled coworkers. A Kafkaesque internal investigation by the Nova Scotia Health Authority.
After more than 18 months of mediation and hearings, Dr. Brian Ferguson, an experienced emergency medicine physician (and retired family doctor) in Cumberland County, is done fighting — he says he’s walking away from the NSHA’S unfair prosecution of him.
What the NSHA does now, he says, is up to them.
“I’m at peace with this that my career could end by suspension,” Dr. Brian Ferguson, who’s practised medicine for 40 years — 35 of them in Cumberland County — told me this week. “I don’t think they have the right to do it, but they have the ability to do it.”
What happened? Read the details in Saltwire reporter Darrell Cole’s story (“Amherst doctor ends fight against NSHA“) published Friday.
Suffice to say, a public statement just released by Dr. Ferguson’s lawyer, Amherstbased Jim O’neil, paints a disturbing picture of a health authority seemingly determined to find fault.
O’neil says the case underlines a huge problem in this province.
“Nova Scotia’s losing doctors, especially really skilled doctors, and I think a lot of it has to do with the oppressive atmosphere that this regulatory structure creates,” O’neil says. “Once a complaint is filed, bang, it’s like a missile.”
Although, at this point, his client has instructed him not to pursue further legal action, O’neil says, he remains confident they could have won a court-ordered stay of proceedings based on the procedural unfairness of the process.
“This is a poster case for intervention for charter violations,” says O’neil.
Dr. Ferguson says he and his wife, Dr. Celina White (the Nova Scotia representative on the Canadian Medical Association’s board of directors), don’t want to spend their retirement funds fighting a point of honour.
“With extreme reluctance, I have concluded that there is no realistic possibility whatsoever that I could receive anything resembling fairness or justice in this process,” Dr. Ferguson’s statement says.
According to that document, at one point the NSHA even put Dr. Ferguson’s mental fitness into question.
His lawyer saw it as a tactic to bring Dr. Ferguson to heel.
“It was an insincere suggestion. And the proof is, it was withdrawn, period. It was, in my opinion, calculated to place pressure on him. Pressure on him to, shall we say, co-operate,” says O’neil.
“That’s my honest, sincere opinion as a lawyer, and as someone who’s known Brian. He’s sharp as a tack. He’s probably at the apex of his skills.”
A NSHA spokeswoman told Saltwire they can’t comment on the matter, per their bylaws, because it’s currently before a hearing committee.
I can’t pass judgment on any of the specific allegations here.
But I think O’neil is right. The NSHA’S disciplinary process seems stacked against doctors. That’s contributed to widespread reluctance by physicians to speak out or challenge the system.
It also brings to mind the three ER doctors at Valley Regional Hospital I wrote about earlier this year. They faced repercussions after speaking out about patient care
O’neil gave two examples of procedural unfairness, but says there are more.
The NSHA committee hearing the case also decides which documents are relevant and drafts the complaint before the hearing. O’neil says that’s like a judge collecting evidence, drafting charges and then sitting in judgment. Most professional associations have separate committees for these steps.
Almost no professional association would allow a proceeding to start with an unsigned document, he says.
NSHA’S regulations were poorly drafted, says O’neil.
“Why should someone care about Brian Ferguson?” he asks, rhetorically. “Here’s why. The way the regulations are set up, it sets up a system where it guarantees that there’s going to be unfairness.
“It’s my considered opinion that the regulations, even if the people try their best, they’re structured so that if you follow them, it’s going to lead to a path that’s not good.”
His client was the first to go to a full hearing under these regulations, he says, because other doctors under investigation declined to fight the system.
Dr. Ferguson has an impressive resume. In the mid’90s, he helped set up Level II emergency care at the former Highland View Regional Hospital. He directed the emergency department there and at the new regional hospital after it opened. He assisted in establishing Cumberland Paramedical Service. Doctors Nova Scotia named him Rural Physician of the Year in 2014.
Online ratings sites like ratemds show he’s extremely popular with patients.
But he’s also never been shy about being outspoken on behalf of his patients or the importance of local health care.
This case, O’neil says, “is a window into a dysfunctional system. I think what you’re seeing, throughout the province, are symptoms of this. But a lot of it isn’t going public.
“So that’s the big deal here, it’s not just Brian Ferguson.”