Disciplinary Actions against Dr. Sukhdev Singh Kooner
Stephen Barrett, M.D.
In 2008, as summarized below, the Discipline Committee of the College of Physicians and Surgeons of Ontario (CPSO) suspended the license of Dr. Sukhdev Singh Kooner of Toronto for three months and fined him CN$10,500. He was also prohibited from practicing any form of allergy treatment except in emergency situations. In the late 1990s, in response to a complaint from a patient's parent CSPO had investigated Dr. Kooner's use of provocation-neutralization testing and other forms of nonstandard allergy management and concluded that his methodology was below the standard of care. A hearing was held in 2000 and the Discipline Committee issued a ruling in 2001. Kooner stopped practicing "alternative allergy" at that time but appealed the committee's decision. In 2002, Ontario's Divisional Court ordered a re-hearing, which was held in 2008. Click here for the full text of the committee's decision.
In 2012, Kooner signed an undertaking (consent agreement) under which he was limited to office-based practice and would not do hospital-based practice or supervise medical residents. In December 2013, CSPO issued a notice that its discipline committee will hold a hearing on allegations that Kooner had breached terms of the undertaking and failed to cooperate with the College's attempt to perform a reassessment of his practice.
THE DISCIPLINE COMMITTEE OF THE COLLEGE
OF PHYSICIANS AND SURGEONS OF ONTARIO
IN THE MATTER OF a Hearing directed
by the Executive Committee of the College of Physicians
and Surgeons of Ontario, pursuant to Section 36(2)
of the Health Professions Procedural Code,
being Schedule 2 to the
Regulated Health Professions Act, 1991,
S.O. 1991, c.18, as amended
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
– and –
DR. SUKHDEV SINGH KOONER
|DR. M. GABEL (CHAIR)
DR. J. SCHILLINGER
DR. J. DOHERTY
|Penalty Hearing Date:
Penalty Decision Date:
Release of Written Reasons on Penalty Date:
|October 28, 2008
November 28, 2008
January 5, 2009
DECISION AND REASONS FOR DECISION ON PENALTY
The Discipline Committee of the College of Physicians and Surgeons of Ontario (the "Committee") heard this matter at Toronto on January 15, 16, 17, 18, 19, and on January 29, 30, 31, and on August 20, and October 9 and 12, all in 2007. At the conclusion of the hearing, the Committee reserved its decision.
On August 1, 2008, the Committee delivered its written decision and made the following findings:
- by failing to maintain the standard of practice of the profession, Dr. Sukhdev Singh Kooner ("Dr. Kooner") had committed an act of professional misconduct as defined by paragraph 1(1) 2 of O. Reg. 856/93;
- by an act or omission relevant to the practice of medicine, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, Dr. Kooner had committed an act of professional misconduct as defined by paragraph 1(1) 33 of O. Reg. 856/93; and
- Dr. Kooner's care of patients displayed a lack of knowledge, judgment and disregard for the welfare of the patients of a nature and to an extent that demonstrated that he was unfit to continue to practise or that his practice should be restricted, and therefore he was incompetent as defined in subsection 52(1) of the Code.
On October 28, 2008, the Committee heard submissions on penalty from counsel for both parties, reviewed the brief of character reference letters filed on behalf of Dr. Kooner, and reserved its decision. Following the receipt and review of further comments from counsel for the parties on the wording of the proposed term, condition and limitation, the Committee released its Order on November 28, 2008, with written reasons to follow:
EVIDENCE AND SUBMISSIONS ON PENALTY
At the penalty hearing on October 28, 2008, counsel for the College submitted a draft order for consideration and submitted six cases as guidance as to an appropriate penalty. Dr. Kooner's counsel submitted a brief of six character reference letters, six cases, and a selection from a text by Richard Steinecke entitled A Complete Guide to the Regulated Health Professions Act (Aurora, Ont.: Canada Law Book, 2008) in support of his penalty submission.
DECISION AND REASONS ON PENALTY
In arriving at its decision as to the appropriate penalty, the Committee gave careful consideration to the findings, and the specific circumstances of this case, as well as to the overarching aim of the Regulated Health Professions Act to protect the general public. The Committee was mindful that in addition to protecting the public, the penalty must uphold the honour and integrity of the profession, deter Dr. Kooner from repeating these actions, and deter other members of the profession from engaging in similar acts or omissions.
The Committee considered the six character references provided by Dr. Kooner, five of which were from patients or former patients and one of which was from a member of Dr. Kooner's religious community. It was noted from the letters that Dr. Kooner has a devoted following of patients and is an active participant in his community. The Committee gave these letters little weight, however, as it was of the view that the comments in the letters did not mitigate the serious nature of Dr. Kooner's misconduct. The Committee considered it a mitigating factor that there were no previous discipline findings against Dr. Kooner.
Terms and Limitations
The College sought a term, condition and limitation on Dr. Kooner's certificate of registration prohibiting him from practising allergy medicine or alternative allergy medicine.
The College did not seek any limitations on Dr. Kooner's practice of internal or respiratory medicine. The Committee agreed that no such limitations were called for as the case did not touch upon Dr. Kooner's ability to safely continue his practice in those areas of medicine.
Dr. Kooner agreed that there should be a restriction on his practice. However his submission was that the term, condition and limitation should apply only to his practice of alternative allergy medicine. His counsel argued that the Committee's findings were all based on Dr. Kooner's practice of alternative allergy, that Dr. Kooner had not practised alternative allergy medicine since 2001, and that the condition he proposed protected the public. He argued further that a prohibition on Dr. Kooner practising allergy medicine might interfere with his ability to respond in an emergency situation, or to see patients in consultation in his internal medicine practice who had had allergic reactions. The College responded that Dr. Kooner had to be prohibited from practising allergy medicine, as otherwise the penalty would be inconsistent with the Committee's findings about his lack of knowledge, skill and judgment in allergy medicine. The College agreed that there should be an exception from the prohibition for emergency situations.
The Committee's finding that Dr. Kooner was incompetent related to his lack of knowledge, skill and judgment and disregard for his patients' welfare in his professional care of his patients in the area of allergy medicine in general, not just alternative allergy. The Committee was of the view that Dr. Kooner's submission that the Committee's findings related only to his practice of alternative allergy medicine, and not to allergy medicine in general, reflected a serious lack of insight into the nature of his professional misconduct and his incompetence as found by the Committee. The Committee concluded that a term, condition and limitation on Dr. Kooner's certificate of registration that would prohibit him from practising allergy medicine and alternative allergy medicine would protect the public by ensuring that he did not practise in the areas in which he had been found to be incompetent. However, the Committee recognized the need to allow Dr. Kooner to respond to emergencies, in the practice of internal medicine, which might have allergic components. Accordingly, the Committee decided that the term, condition and limitation prohibiting Dr. Kooner from practising allergy medicine and alternative allergy medicine should not be construed as preventing Dr. Kooner from providing emergency care to a patient in an urgent situation. The Committee did not feel it appropriate to limit this exception, as suggested in the written submission from counsel for the College, to only "where there is no other physician available", as it could complicate the provision of emergency care.
The College sought a suspension of three months commencing immediately or in short order. College counsel submitted that a suspension was appropriate to achieve general and specific deterrence. She submitted that the Committee's findings of multiple and serious failures to maintain the standard of the profession alone warranted a three-month suspension, as did the Committee's three findings that Dr. Kooner engaged in disgraceful, dishonourable or unprofessional conduct. Therefore, she submitted that the combination of all these findings warranted a three-month suspension.
Counsel for Dr. Kooner suggested that he had already effectively been suspended for six months, resulting from the revocation ordered in the previous hearing of this case, which was later stayed by an appellate court. That, combined with the significant inconvenience of the multiple appeals arising from that hearing (and noting that his appeals were successful), satisfied the need for specific and general deterrence. Counsel suggested that anything further would be harsh and punitive.
College counsel replied that the effective period between the revocation of Dr. Kooner's certificate in the prior case and the stay order had been only six weeks, and the requested three-month suspension took that period into account.
The Committee concluded that a suspension is appropriate to achieve the penalty principles of general and specific deterrence. The Committee finds that a suspension of three months is in keeping with the severity of its findings concerning Dr. Kooner's disgraceful, dishonourable and unprofessional conduct as well as his failure to maintain the standard of the profession. Furthermore, although the cases submitted by the College could all be distinguished on the facts from the instant case, a suspension of three months was within the range of penalties imposed by the Discipline Committee in the cases submitted by the College whose facts were the most similar to this one. (CPSO v. Dr. Alexander Franklin [case of failure to maintain standards- suspension of four months, two of which would be suspended if certain conditions were met]; CPSO v. Dr. William Arthur Tilly [case of failure to maintain standards- suspension of six months, three of which would be suspended if certain conditions were met]). The Committee is of the opinion that the prior period during which Dr. Kooner was not permitted to practise, and the inconvenience experienced as a result of the previous hearing and ensuing appeals, should not further abate the period of suspension that it has imposed. But for these factors, the Committee might have imposed a longer suspension.
The Committee ordered that the suspension commence on January 5, 2009. The Committee was of the opinion that this start date would allow sufficient time to arrange coverage for his patients during the suspension period.
The College sought costs in the amount of $13,650. Counsel explained that she was seeking costs for only one-half of the eight days of the hearing in January 2007 and for only one of the two days of the hearing in October 2007. This was to take into account the fact that Dr. Kooner was successful in his defence to some of the specific allegations that the College made against him. Counsel further explained that the costs were calculated in accordance with the College hearing cost tariff which was in effect on the days in question. The College sought costs related to the hearing only, and not investigative or legal costs. College counsel made reference to the Act and to the Rules of the Discipline Committee which permitted such costs to be awarded, and to previous cases in which she argued that costs were awarded by the Committee under similar circumstances.
Counsel for Dr. Kooner submitted that an order that Dr. Kooner pay costs of $7,500 was more appropriate. He indicated that Dr. Kooner had been successful in defending 17 of the allegations against him, which had taken up much of the hearing time. He also noted that time had been lost due to the College adjourning the hearing due to the schedules of two of its expert witnesses.
The Committee noted that both parties were in agreement that this was an appropriate case to award costs to the College. The Committee agreed with this. The Committee concluded that the quantum of costs should be reduced from the amount requested by the College as it did not adequately take account of the amount of hearing time that was spent on matters that ultimately did not lead to findings being made against Dr. Kooner. However, the Committee also concluded that the $7,500 offered by Dr. Kooner was not sufficient. The Committee was of the opinion that an order that Dr. Kooner pay costs of $10,500 would be appropriate.
Therefore, the Discipline Committee ordered and directed that:
- The Registrar suspend Dr. Kooner's certificate of registration for a period of three (3) months, commencing January 5, 2009.
- The Registrar impose the following terms, conditions and limitations on Dr. Kooner's certificate of registration, as of the date of this Order:
(a) Dr. Kooner shall be prohibited from practicing allergy medicine and alternative allergy medicine. This shall not be construed as preventing Dr. Kooner from providing emergency care to a patient in an urgent situation.
- Dr. Kooner pay costs to the College in the amount of $10,500 within thirty (30) days of the date of this Order.
- The results of this proceeding to be included in the register.
Decision: Download Full Decision (PDF)
Appeal: No Appeal
Hearing Date(s): Jan 15, 2007
This page was posted on March 18, 2014.