This was the second time the college had examined Dr. Marko Duic’s hiring practices, as well as allegations of improper billing, following a 2019 Globe investigation.Supplied/Supplied
Ontario’s regulator of medical doctors has, for the second time, cleared a former high-profile emergency room physician for alleged gender discrimination and improper billing. The College of Physicians and Surgeons of Ontario was forced to conduct the probe after a panel of judges deemed its first investigation inadequate.
In its most recent decision, the college said that, although it is concerned about a pattern of Dr. Marko Duic hiring almost exclusively male doctors in emergency rooms where he had served as chief, the regulator cannot conclude he intentionally engaged in gender discrimination, according to Danny Kastner, a lawyer for eight complainants.
Dr. Duic was the emergency room chief at St. Joseph’s Health Centre in Toronto from 2002 to 2011, and chief at Southlake Regional Health Centre, north of the city, from 2011 to 2019. He has not practised at Southlake since April of this year.
The key findings from the college’s decision, which is not a public document, were shared with The Globe and Mail by Mr. Kastner, who summarized them in an interview. The college released its decision to Mr. Kastner in June.
This was the second time the college had examined Dr. Duic’s hiring practices, as well as allegations of improper billing, following a 2019 Globe investigation. The Globe found that in his 16 years as an emergency chief, Dr. Duic hadn’t hired a single female doctor, until weeks after The Globe started asking questions about his staffing decisions. Sources for The Globe’s story also alleged he made discriminatory comments about women and avoided training them. Additionally, sources told The Globe that, to increase billings, Dr. Duic encouraged the improper use of forms that referred patients for driver’s licence reviews, as well as mental-health forms that kept patients in the hospital involuntarily for up to 72 hours.
Mr. Kastner, on behalf of eight female doctors, first asked the college to investigate the allegations after The Globe published its story in 2019. But when the college’s investigative committee initially determined the allegations were unfounded, and when Mr. Kastner’s appeal to the Health Professions Appeal and Review Board (HPARB) upheld the college’s decision, he sought judicial review at Ontario’s Divisional Court of Justice. A panel of three judges ruled in 2022 that the college must re-investigate the allegations, and said the regulator’s investigation was inadequate, in large part because its didn’t interview any witnesses beyond Dr. Duic himself.
In its second investigation, the college’s investigative committee interviewed more than 10 witnesses, according to Mr. Kastner. The committee heard evidence of Dr. Duic making discriminatory comments about women, but argued it couldn’t obtain adequate first-hand accounts to prove these accounts, Mr. Kastner said. Although the committee’s decision advised Dr. Duic to recognize and avoid implicit biases, it ultimately found that it could not support a finding of discrimination.
The college declined to answer questions about the investigative committee’s findings. “Due to confidentiality restrictions outlined in the Regulated Health Professions Act, 1991, we cannot disclose case information or any decision issued by the Inquiries, Complaints and Reports Committee (ICRC),” Jaclyn Hodgson, senior communications adviser for the regulator wrote in an e-mail.
Dr. Duic did not respond to requests for comment e-mailed to him and his lawyers.
The college also declined to discipline Dr. Duic over allegations that he encouraged doctors to increase their billings by requesting unnecessary driver’s licence reviews, or involuntary mental-health hospitalizations.
The reasoning in the decision, Mr. Kastner said, was that the college had previously cautioned Dr. Duic about his billing practices with regards to driver’s licence forms, and concluded that he had since changed his practice. Also, based on interviews with witnesses and a review of 26 patient charts, the college did not find evidence Dr. Duic engaged in or encouraged the improper use of psychiatric forms, Mr. Kastner added.
In his interview with The Globe, Mr. Kastner criticized the college’s decision to accept the denials of discrimination by Dr. Duic and “the male doctors who worked with him to manage his all-male ER departments.”
The college’s decision “continues to reflect a reluctance to take discrimination allegations against doctors seriously,” Mr. Kastner said.
Mr. Kastner pointed out that with discrimination cases, there is rarely direct evidence, as most people don’t announce their biases. He noted that several judicial decisions have highlighted the importance of assessing circumstantial evidence as a whole, on a balance of probabilities, rather than requiring “smoking gun evidence.”
Despite the fact that discrimination cases are difficult to prove, Mr. Kastner said that in this case “the evidence of discrimination was unusually strong.”
Mr. Kastner also took issue with the investigative committee’s decision not to refer the improper billing allegations to a disciplinary hearing, alleging that the investigative committee didn’t properly assess an e-mail authored by Dr. Duic that was part of The Globe’s 2019 investigation.
In that e-mail, which Dr. Duic sent to more than 30 emergency room doctors in 2013, he urged doctors to fax their own forms when they were seeking a review of someone’s ability to drive by the Ministry of Transportation (MTO), so that other hospital staff won’t see them. He explained in the e-mail that, otherwise, administrative staff at the hospital might ask “why a nursing home patient with flexion contractures got MTO’d.”
According to a number of doctors interviewed, there would be no need to fill out a form for a nursing home patient with flexion contractures (caused by being immobile in bed for weeks) because that person wouldn’t be capable of driving. At St. Joseph’s emergency department, 2,902 MTO forms were filled out from April to December of 2011, a time when Dr. Duic was the hospital’s emergency chief. In comparison, 214 such forms were filled out in 2017.
Mr. Kastner said the committee interviewed those who received the e-mail, thereby putting “inappropriate weight on the denials of doctors who were complicit in the same misconduct.”
In a case unrelated to Mr. Kastner, Dr. Duic is awaiting a CPSO disciplinary hearing over allegations of professional misconduct and incompetence in his care of a patient. The college’s investigative committee referred the case to a disciplinary hearing in late May. If the hearing finds the misconduct or incompetence allegations to be founded, the tribunal could revoke or suspend Dr. Duic’s medical licence, among other disciplinary actions.
Dr. Duic resigned as chief of the Southlake emergency department in 2019, shortly after the publication of The Globe’s investigation. While he continued to work as an emergency doctor at Southlake, Angelica Cruz, manager of communications and public affairs at Southlake wrote last month that “Dr. Duic has not worked at Southlake since April,” but did not provide further information.
Mr. Kastner said he has appealed the college’s most recent decision, to the Health Professions Appeal and Review Board, on behalf of his clients.