On September 8., 2020, on the basis of an Agreed Statement of Facts and Admission, the Discipline Committee found that Dr. Essam Samy Naguib Michael (“Dr. Michael”) committed an act of professional misconduct in that he has been found guilty of an offence that is relevant to his suitability to practise.
FACTS
Dr. Michael is a 61-year-old obstetrician and gynecologist practicing in the Greater Toronto Area. He received his certificate authorizing independent practice from the College of Physicians and Surgeons of Ontario (the “College”) in 1994.
At the relevant time, Dr. Michael operated 4 fertility clinics in the Greater Toronto Area. His primary clinic was located in Mississauga, with other offices in Brampton, Bolton, and Milton.
Provincial Offence Proceeding and Conviction
On November 14, 2018, Dr. Michael pleaded guilty to contravening s. 15 of the Health Insurance Act by submitting billings to the Ontario Health Insurance Plan (“OHIP”), in the amount of $545,000, which did not comply with the requirements of the Schedule of Benefits, thereby committing an offence under the Health Insurance Act. The overbilling occurred over the period between January 1, 2007 and May 21, 2013.
The proceeding took place at the Superior Court of Justice before Justice Dawson. The parties presented an Agreed Statement of Fact, which was read into the record. The Agreed Statement of Fact can be summarized as follows:
- Billing code A935 requires that the physician spend a minimum of 50 minutes in direct contact with the patient;
- Between January 1, 2007 and May 21, 2013, Dr. Michael improperly billed OHIP for numerous units of code A935 as he did not spend the requisite 50 minutes in direct contact with the patient;
- There is no dispute that Dr. Michael saw the patients for whom A935 was billed. Rather than billing A935, he ought to have billed A205.
- The amount of the overpayment is the difference between the two codes, which is $545,000.
A205 is the code for an Obstetrics and Gynaecology Consultation. A205 does not have a time requirement. A935 is a Special Surgical Consultation code. It can be billed by a surgeon who provides all the appropriate elements of a regular consultation and devotes at least fifty minutes exclusively to the consultation with the patient. Dr. Michael admitted that he had submitted billings to OHIP in the amount of $545,000 that did not comply with the requirements of the Schedule of Benefits and was therefore guilty of committing an offence under the Health Insurance Act, contrary to section 44(1)(a).
At the proceeding on November 14, 2018, Dr. Michael undertook through counsel to repay the $545,000 to the Minister of Finance. A cheque from Dr. Michael’s counsel to the Minister of Finance, dated November 21, 2018 confirms restitution in the amount of $545,000.
The Crown and defence presented a joint submission on sentence, asking that the minimum fine of $5000 be imposed. Justice Dawson accepted the joint submission and ordered a fine of $5,000.
Circumstances of Overbilling
Dr. Michael delegated the responsibility of his OHIP billings to his staff.
Dr. Michael had inherited a billing system that allowed staff to enter shortcut keys related to the type of patient visit, rather than directly entering the OHIP code. The billing system then automatically populated billing codes based on the shortcut keys. A forensic examination of Dr. Michael’s billing software demonstrated that the billing codes associated with the shortcut keys were not always appropriate to the type of patient visit.
One of the shortcuts used by staff was for “new patient”. This shortcut was entered by staff when the visit pertained to a new fertility patient. The billing software automatically populated the A935 code when this shortcut was entered, whether or not Dr. Michael had spent the requisite 50 minutes with the patient as required by the Schedule of Benefits.
Dr. Michael was unaware of this issue and its effect on his OHIP billing. Dr. Michael nonetheless accepts responsibility for the improper billings submitted to OHIP.
PENALTY
Facts on Penalty
In March 2020, the William Osler Health System (“William Osler”) reduced the availability of operating rooms for elective surgeries as a result of the COVID-19 pandemic. Following this reduction in capacity, only two days per month were available for OB/GYN surgeries. It is anticipated that William Osler will increase its capacity for OB/GYN surgeries to one day per week beginning in September 2020.
As a result of the reduction in operating room capacity between March and September 2020, Dr. Michael has a backlog of 88 hospital-based surgeries he is scheduled to perform. These include surgeries for patients with gynecological conditions including infertility; significant pelvic pain secondary to endometriosis or large fibroids; and irregular and heavy periods related to conditions such as adenomyosis and submucosal fibroids.
Order
The Committee ordered:
-Dr. Michael is to be reprimanded;
- Dr. Michael’s certificate of registration is to be suspended for a period of one (1) month, commencing from November 15, 2020 at 12:01 a.m.
- The Registrar is to impose terms and conditions and limitations on Dr. Michael’s certificate of registration as set out in detail in the Order, (re: monitoring Dr. Michael’s OHIP billings)
- Dr. Michael is pay to the College costs in the amount of $6,000.00 within 30 days of the date of the Order.
Terms and conditions imposed on certificate by: Discipline Committee
