On August 24, 2017, the Discipline Committee found that Dr. Mory Mayer Gutman committed an act of professional misconduct, in that he has engaged in conduct or 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.
Allegations referred by Notice of Hearing dated September 21, 2016 and Notice of Hearing dated June 13, 2017 were dealt with in one hearing.
Dr. Gutman is a physician practising family medicine in Toronto.
Previous Discipline History with the College
In 2011, Dr. Gutman was found to have engaged in professional misconduct, in that he failed to maintain the standard of practice and engaged in conduct or 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. Further to the Order of the Discipline Committee, Dr. Gutman was, among other things, prohibited from prescribing Narcotic Drugs/Preparations, Controlled Drugs, Benzodiazepines and other Targeted Substances and he was prohibited from engaging in professional encounters with any female patients.
A. Prescribing Contrary to the Discipline Committee’s restrictions
In January of 2013 the College received information from a pharmacist, that Dr. Gutman had prescribed Testosterone gel, which is a controlled substance, to a male patient in 2012 and 2013, contrary to the terms of his prescribing restriction by the Order of the Discipline Committee. In May of 2014, the Inquiries, Complaints and Report Committee (ICRC) advised Dr. Gutman to be vigilant to ensure that he does not breach the terms of his certificate of registration. In 2016 information from the Narcotics Monitoring System (NMS) for the time period of April 1, 2013 to August 13, 2015, was received by the College, raising concerns that Dr. Gutman had prescribed contrary to the terms of the Discipline Committee Order.
The College commenced an investigation.
Prescribing Controlled Substances:
Testosterone: Dr. Gutman prescribed ten repeats of Testosterone gel to Patient 1 in October 2012. He was unaware that Testosterone was a controlled substance and therefore a medication he was prohibited from prescribing.
Sublinox: Dr. Gutman prescribed Sublinox to Patient A on two occasions in October 2014; to Patient B on three occasions in September 2014; to Patient C on two occasions (with 8 refills on a second occasion) in October 2014; to Patient D on two occasions in February 2014 and in April 2016; to Patient E on two occasions in October 2014 and April 2016. Dr. Gutman was unaware that Sublinox was a controlled substance and therefore a medication that he was prohibited from prescribing. The prescribing occurred prior to a pharmacist bringing to his attention that this substance was designated as a controlled drug.
Phenobarbital: Dr. Gutman authorized eight refills of phenobarbital to Patient F, an elderly patient who suffers from intellectual impairment and seizures, in March 2014. Dr. Gutman was aware that Phenobarbital is a controlled substance at the time he prescribed it. The prescribing occurred in error when Dr. Gutman was renewing batch prescriptions of medication prescribed by Patient F’s previous physician.
Clobazam: Dr. Gutman prescribed Clobazam to Patient G, a young man with recurrent seizures, on one occasion in February 2016. Dr. Gutman was asked to authorize a refill Patient G’s anti-convulsant medications. Dr. Gutman authorized a refill of Levetiracetam (an anti-convulsant, but not a controlled drug) and also authorized Clobazam (also used as an anti convulsant, but which is a benzodiazepine which Dr. Gutman is prohibited from prescribing). Dr. Gutman was not aware that Clobazam is a benzodiazepine at the time he prescribed it. The prescribing occurred in error when Dr. Gutman was renewing batch prescriptions for medication prescribed by Patient G’s previous physician.
B. Assessing a Female Patient contrary to the Discipline Committee’s Restriction
The College received information in November of 2016, that Dr. Gutman may have conducted an assessment of a female patient, contrary to the terms of the Discipline Committee restrictions. The College commenced an investigation.
Dr. Gutman was contacted by a member of Patient H’s family, with a request that Dr. Gutman find a physician to assess a female patient, who was in her mid-90s at the time. At issue was the patient’s capacity to vary her will and execute a new Power of Attorney. Dr. Gutman had conducted a prior assessment of this patient ten years earlier, prior to his restriction from seeing female patients.
On October 14, 2016, Dr. Gutman conducted a capacity assessment of this female patient. He did not retain a record of the encounter and did not bill OHIP.
Dr. Gutman understood that there was a degree of urgency to the request made to him as the family was having difficulty finding a physician to conduct the assessment. He believed that the Order of the Discipline Committee and the terms of his certificate of registration did not encompass the assessment of this female patient, given that the patient was in her mid-90s.
Disposition
On November 10, 2017, the Discipline Committee ordered and directed that:
- The Registrar suspend Dr. Gutman’s Certificate of Registration for a period of seven (7) months, effective 30 days from the date of this Order.
- The Registrar impose the following terms, conditions, and limitations on Dr. Gutman’s Certificate of Registration:
- Dr. Gutman will successfully complete one-on-one instruction in medical ethics with an instructor approved by the College, at his own expense, and shall provide proof of completion to the College prior to his resumption of practice;
- Dr. Gutman will successfully complete instruction in understanding boundaries through a course approved by the College, at his own expense, and shall provide proof of completion to the College prior to his resumption of practice;
- Dr. Gutman appear before the Committee to be reprimanded within 90 days of the date of this Order.
- Dr. Gutman pay to the College costs in the amount of $5,500.00 within thirty (30) days of the date of this Order.
On December 8, 2017, Dr. Gutman appealed the penalty decision of the Discipline Committee to the Ontario Superior Court of Justice (Divisional Court). Pursuant to s. 25(1) of the Statutory Powers Procedure Act, the appeal operated as a stay of the decision pending the outcome of the appeal.
On November 19, 2018, the Divisional Court dismissed Dr. Gutman’s appeal. Therefore, the penalty decision of the Discipline Committee is in effect.
Terms and conditions imposed on certificate by: Registration Committee