Dr. Sam Shoddy is an employee of the Main Street General Hospital. He has worked as a hospitalist since 2008. As a physician who is required to practice in the hospital to carry out his duties, Dr. Shoddy is also required to be a member of the medical staff. In the last three months, nursing staff have made a series of complaints relating to patient care issues in Dr. Shoddy's practice.

The CEO would like to dismiss Dr. Shoddy as an employee of the hospital on a without cause basis. The hospital is proposing to pay a severance consistent with its employment obligations.

1. Can Dr. Shoddy be dismissed without the MAC or board processes being followed? Yes or no and why ( 3 marks)
2. Is there any form of due process required? Yes and what or No and why (2 marks)
3. What section of the PHA gives the board of a public hospital the power to revoke Dr. Shoddy's privileges and what section of that same document can Dr. Shoddy use to grieve their decision? ( 2 marks)
4. What steps could the hospital have taken which would have allowed it to deal with these issues more effectively? (3 marks)
5. Is there a reporting obligation to the College of Physicians and Surgeons of Ontario? Yes or No

Resources which might help answer the questions:

Public HospitalsAct

• ThePublicHospitalsAct,R.S.O.1990,c.P.40(PHA)isadministeredandenforcedbytheMinisterofHealthandLong-TermCare.
• The PHA sets out the role of the Minister and Ministry with respect tooversight of publichospitals.
• The Minister's approval is required with respect to a number of more significant administrativematters,includingtheincorporationandamalgamationofpublichospitals,andwithrespecttotheacquisitionanddisposalofland.
• DutiesUnderPHA
  • The PHAsets out several duties which are owed tothepublic.
    • Section 33(b) of the PHA provides that where the privilegesof a member of amedical staff of a Hospital are restricted or cancelled, the administrator shallprepareandforwardadetailedreporttotheCollegeofPhysicians&SurgeonsofOntario.

- Section 34(3) of the PHAprovides for duties where serious problems exist:

"S34(3)Ifanofficerofthemedicalstaffwhoisresponsibleundersubsection(1)or (2) becomes aware that, in his or her opinion a serious problem exists in thediagnosis,careortreatmentofapatient,theofficershallforthwithdiscussthe

condition,diagnosis,careandtreatmentofthepatientwiththeattendingphysician. There is also a provision to relieve the attending physician."The process also involves notifying the MedicalAdvisory Committee.

• DutiesOwedbyHealthFacilitiesinConnectionwithPerformanceManagementIssues
  • DutytoPatients:Toensurepatientsarecaredforbystaffwhoarecompetent,havetheappropriatetrainingandreceivetheappropriatesupervision.
  • Duty to Staff: That any remedial or disciplinary action is in accordance with anyapplicable legislation including any labour legislation, human rights legislation, thePublicHospitalsAct,anyapplicablehospitalby-law,collectiveagreement,contracts,orhealthfacilitypolicies.
  • WithRespecttoPhysicians:Section36(c)ofthePHAprovidesthattheboardofapublichospital may revoke or suspend the appointment or refuse to re-appoint a member of themedicalstaff.Thiswouldbesubjecttotheprocesssetoutinthehospitalby-laws.
  • Note that s.41(1)(b) of the PHA provides that any member of the medicalstaff of ahospital, who considers himself or herself aggrieved by any decision revoking orsuspendinghisorherappointment,isentitledtowrittenreasonsandahearingbeforetheHealthProfessionsAppealandReviewBoard.
• Regulated Health ProfessionsAct
  • Section85.5(1)oftheRegulatedHealthProfessionsAct,1991,S.O.1991,c.18providesthat a person, who terminates the employment or revokes, suspends, or imposesrestrictions on the privilege of a member, shall notify the Registrar of the regulatoryCollege.
  • As of June 4, 2009, Section 85.2 (1)of this Act provides that a person, who operates afacility where one or more members practice, shall file a report, if the person hasreasonablegroundstobelievethatamemberwhopracticesatthefacility"isincompetent,incapacitated,orhassexuallyabusedapatient."
• Employment StandardsAct
  • Ontario'sEmploymentStandardsAct,2000,S.O.2000,c.41setsoutminimumobligationsowedtoemployees.
    • Theseprovisionsincludetheminimumterminationnoticeandseverancepayrequirementstoemployeeswhoaredismissed.
    • Anemployeeisnotentitledtonoticeorseverancebenefitsifhe/sheabandonsorresignstheiremployment.
    • Anemployeeisnotentitledtoanynoticeorseverancebenefitsifhe/shehasbeenguilty of wilful misconduct, disobedience, or wilful neglect of duty that is nottrivialandhasnotbeencondonedbytheemployer.
• Employees Not Covered by a CollectiveAgreement (Non-Union Employees)
  • Employees, who are not covered by a collective agreement (i.e. non-unionemployees), may be dismissed from their employment. A civilcourt will notorderreinstatement.

• Intheabsenceofanyexpressagreementtothecontrary,acourtwillimplyatermthat the employee is entitled to reasonable notice of the termination of theiremployment.
• A failure to give "reasonable notice" is a breach of the employmentcontract andwillgiverisetoaclaimfordamagesfor"wrongfuldismissal."
• A non-union employee is required to mitigate their damages by seekingalternateemploymentandanyincomefromalternateemploymentwillreduceaplaintiff'sentitlementtowrongfuldismissaldamages.
• Anemployercanterminateanemployee"forcause"withnofurtherobligationto the employee.Cause is a common law doctrine defined by the courts. Itgenerally refers to an employee who has been guilty of serious misconduct,habitual neglect of duty, incompetence, or conduct incompatible with theemployee'sdutiesorprejudicialtotheemployer'sbusiness.
• Employees Covered by a CollectiveAgreement (Union Employees)
  • Unionemployeesarecoveredbyacollectiveagreement,whichsetsoutthetermsandconditionsoftheiremployment.
  • Unionemployeesarenotentitledtobringacivilactionforanymattercoveredbythe collective agreement. Instead, they must follow the grievance and arbitrationprovisionssetoutintheircollectiveagreement.
  • Thecollectiveagreementwillnormallysetoutthebasisuponwhichanemployeemaybedisciplinedortheiremploymentterminated.
  • Employeesmayseektohavetheiremploymentreinstatedpursuanttothetermsofthecollectiveagreement.

WorkplaceHealthandSafety

• Workers'CompensationLegislation
  • TheWorkplaceSafetyandInsuranceAct,1997,S.O1997,providescompensation,onano-faultbasis,incasesofwork-relatedinjuriesordiseases.
  • Employerspayarateorpremiumbasedontotalremunerationandtheratesareadjustedonexperienceratings(i.e.#ofclaims).
  • InOntario,theemployeesfileaclaimwiththeWorkplaceSafetyInsuranceBoard(WSIB)toreceivebenefitssuchaslostincome.
  • PhysiciansareunlikelytobeeligibletoclaimunderWSIBastheyaregenerallynot"employees"ofthehospital.
    • Theymaysueahospitalintortforinjuriesthatarisefromanaccidentifthehospitalisatfault.
• OccupationalHealthandSafetyAct
  • TheregulatoryschemeinOccupationalHealthandSafetyAct,R.S.O.1990,c.O.1imposesrights,duties,andobligationsonworkers,employers,andsupervisors.

Duties not fulfilled will lead to substantial penalties. Employers' generalduties are toprovideandmaintainaworkplace,equipment,tools,andsystemsthataresafe,ensuringall employees are familiar with the proper use of all devices and equipment, andprovidingprescribedprotectiveequipment,devices,andmaterials