On February 19, 2020, on the basis of agreed facts and admission, the Discipline Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario found that Dr. Peter Robert Schwarz (“Dr. Schwarz”) is incompetent and committed an act of professional misconduct, , in that he failed to maintain the standard of practice of the profession in his care of patients, and set out its penalty and costs order with written reasons to follow.
FACTS
Dr. Schwarz is a 51-year-old family physician. He received his certificate authorizing independent practice from the College of Physicians and Surgeons of Ontario (the “College”) in 1995. He obtained CCFP certification on June 13, 1995.
At the relevant times, Dr. Schwarz practiced as a general/family physician in a solo practice in Sault Ste Marie, Ontario.
Background
In August 2016, in the context of another investigation, the College obtained Narcotics Monitoring System information regarding Dr. Schwarz’s prescribing to patients. The College subsequently obtained Cumulative Patient Profiles for 12 drop-in patients to whom Dr. Schwarz prescribed opioids and controlled substances.
Incompetence / Failure to Maintain the Standard of Practice
On March 28, 2017, on the basis of the information above, the Inquiries, Complaints and Reports Committee of the College (“ICRC”) approved an appointment of investigators to inquire into whether Dr. Schwarz had committed professional misconduct in his prescribing and medical record keeping.
The College selected 25 charts to review, including the 12 drop-in patients. Dr. Schwarz provided complete charts for 5 of the 25 patients. With respect to the remaining 20 patients, Dr. Schwarz was unable to confirm that he had provided complete patient records. Counsel for Dr. Schwarz advised that these patients were drop-in patients for whom Dr. Schwarz had not initially opened a patient record. Instead, he had filed notes for these patient encounters “by date”.
Counsel for Dr. Schwarz advised that Dr. Schwarz had recently taken a Medical Record Keeping Course, following which he had changed his practice and now opened a chart for all drop-in patients.
Counsel for Dr. Schwarz confirmed that Dr. Schwarz would not have seen prior records (i.e., records filed “by date” and not by patient name) at the time of any drop-in patient’s subsequent visit.
Reports of Dr. Chris Giorshev
The College retained the services of Dr. Chris Giorshev, a family physician with expertise in emergency medicine, chronic pain management and addictions medicine, to provide an independent expert opinion on the care provided by Dr. Schwarz to the 25 patients. Dr. Giorshev interviewed Dr. Schwarz and reviewed his patient charts.
In his report dated December 10, 2017, and addendum report dated January 3, 2018, Dr. Giorshev opined that Dr. Schwarz did not meet the standard of practice of the profession, demonstrated a lack of judgment, and posed a risk of harm to patients in 23/25 of the charts reviewed.
Dr. Giorshev identified significant deficiencies in Dr. Schwarz’s care of patients which he categorized into two groups – chronic pain and addiction patients.
i. Chronic Pain Patients
1. Decision to initiate opioids for pain patients:
Dr. Schwarz’s decision to initiate opioids was far below the standard of care, demonstrated a lack of judgment and posed a risk of harm to patients and/or the public (in terms of drug diversion). This included:
-Failure to perform a comprehensive documentation of the patient’s pain condition, general medical condition and psychosocial history, psychiatric status, and substance abuse history, such that it was not possible to understand what Dr. Schwarz was treating based on the documentation;
-Failure to independently confirm patients’ self-reported prescribing history before prescribing opioids. That is, patients reported to Dr. Schwarz that they were taking opioids (including at high doses) and Dr. Schwarz began prescribing opioids to these patients without confirming the pre-existing prescription. This placed patients at high risk of overdose and death if they were in fact opioid naïve, and placed the public at risk resulting from drug diversion;
-Failure to risk stratify patients;
-Failure to determine if patients had a pain condition where opioids were indicated;
-Failure to perform urine drug screens;
-Failure to document informed consent discussion.
2. Conducting an opioid trial/long-term monitoring opioid therapy:
Dr. Schwarz fell below the standard of care, demonstrated a lack of judgment and posed a risk of harm to patients and/or the public with respect to conducting an opioid trial and long-term monitoring of opioid therapy. This included through:
-Failure to document whether patients were advised to avoid driving until a stable dosage was achieved. A sedated driver is a risk to both the patient and the public;
-Failure to reasonably document monitoring of aberrant behaviour or use urine drug
screens;
-Failure to adequately address aberrant behaviour when it arose (Dr. Giorshev noted there were multiple instances of early release for self-escalation and lost or stolen medications documented in the individual case summaries), which posed a high risk of harm for patients and the public;
-Failure to document risk discussion pertaining to combining sedating medications with high dose opioids. This included, in one case, prescribing an elderly patient extremely high dose opioids as well as benzodiazepines, without documenting or evaluating the risks, which included a high risk of death for this patient.
ii. Addictions Patients
Dr. Schwarz’s care of addictions patients fell below the standard of care, demonstrated a lack of judgment and posed a risk of harm to patients and/or the public. This included
through:
-Failure to document an adequate evaluation of the patient’s clinical conditions prior to prescribing Suboxone;
-Failure to document a diagnosis of opioid dependence to justify prescribing Suboxone;
-Failure to document contraindications to the prescribing of Suboxone, including during pregnancy, and failure to perform pregnancy tests prior to initiating Suboxone on female patients. This put both the patient and any possible fetus at risk;
-Failure to adhere to CAMH clinical practice guidelines, in that he:
-Failed to document withdrawal prior to induction. Patients who are initiated on Suboxone without being in withdrawal can experience precipitated withdrawal, which is dangerous for the patient;
-Failed to reassess patients within one to three days of induction or otherwise follow up with patients in a timely fashion. Often, he did not see patients for a month or two following induction;
-Failed to monitor clinically unstable patients as frequently as required.
Clinically unstable patients require more frequent monitoring, but Dr. Schwarz saw patients once or twice per month regardless of the patient’s clinical stability;
-Prescribed double the recommended starting dose of Suboxone;
-Failed to supervise patients’ doses during the first two months of treatment;
-Provided inappropriate take-home doses, including to patients who had not achieved clinical stability. Dr. Giorshev found that Dr. Schwarz’s care deviated markedly from the CAMH guideline and the standard of care, as he routinely gave patients 5-6 carries from the outset, including to patients who did not display clinical stability. Inappropriately giving take-home doses to unstable addictions patients represents a significant risk for diversion and a significant harm to the patient and the public;
-Performed urine drugs screens infrequently (once every one or two months, rather than twice a week to biweekly), a routine which can easily be gamed by addictions patients;
-Inappropriately permitting a patient’s mother to supervise her son’s urine drug screen. Dr. Giorshev opined that this represented inappropriate monitoring.
iii. Individual Patient Concerns
Further concerns relating to individual patients are set out in Dr. Giorshev’s report, dated December 10, 2017, at pp. 9-49. In addition, Dr. Giorshev highlighted two particularly troubling cases at p. 5 of his report.
iv. Dr. Giorshev’s Interview of Dr. Schwarz
Dr. Giorshev interviewed Dr. Schwarz on December 8, 2017 in order to understand if his deficiencies resulted from a lack of knowledge skill or judgment. Dr. Giorshev was satisfied that there was no significant lack of knowledge; however, he opined that this interview raised additional concerns regarding Dr. Schwarz’s significant lack of judgment in his care of chronic pain and addictions patients. Dr. Giorshev outlined these additional concerns in his report dated December 10, 2017 at pp. 6-7.
v. Lack of Oversight and Reliance on Pharmacists
Dr. Giorshev opined that one of the most concerning issues in his review of Dr. Schwarz’s care related to Dr. Schwarz’s lack of oversight of addictions patients (i.e., failure to ensure withdrawal prior to induction; failure to assess patients in a timely manner after induction, and failure to assess patients frequently enough to ensure they were benefitting from the therapy and were not being harmed). When asked about this in his interview, Dr. Schwarz responded that pharmacists in his area were experienced in dispensing Suboxone, and that he expected that pharmacists would continually reassess his patients and then recommend or make dose adjustments along the way. Dr. Schwarz specifically described that the pharmacist would be the clinical assessor for his patients, and that he relied on the pharmacist to manage patients.
Dr. Giorshev noted that as the physician, Dr. Schwarz is responsible for the evaluation and reassessment of patients. He is responsible for ensuring that the patients are receiving proper care. It is outside the scope of practice of pharmacists to practice medicine and it is not legal for them to independently change an opioid prescription. Dr. Giorshev opined that Dr. Schwarz’s lack of oversight demonstrated a significant lack of care for his patients and significant lack of judgment that was a risk of harm to his patients and the public.
On February 7, 2018, two pharmacists who dispensed Suboxone to patients of Dr. Schwarz were interviewed by the College investigator. Pharmacist A advised that he had been dispensing Suboxone to Dr. Schwarz’s patients for four to five years. Pharmacist B advised that he had been doing so for three to four years.
The pharmacists advised of a number of steps they took with respect to Suboxone patients (such as taking a medical history, explaining the difference between addiction and drug dependence, monitoring the first dose for adverse reaction and requiring patients to adhere to a prescribing schedule).
With respect to ensuring withdrawal prior to induction, both pharmacists advised that they would confirm patients were in withdrawal prior to providing the first dose of Suboxone. However, it was understood and agreed that Dr. Schwarz would also verify withdrawal prior to issuing the prescription;
With respect to assessing patients:
-Both pharmacists advised that their pharmacies monitored patients for aberrant behaviour. However, neither pharmacy completed urine drug screens;
-The pharmacists advised that they monitored patients for missed or withheld doses and would communicate with Dr. Schwarz regarding missed or withheld doses;
-Pharmacist A advised that his pharmacy did complete clinical assessments to determine if dosing was appropriate. However, Pharmacist A assumed that Dr. Schwarz was also completing clinical assessments. He assumed that Dr. Schwarz was reassessing patients over the course of a prescription to ensure that the medication and dosing were appropriate for the patient;
-Pharmacist B advised that his pharmacy did not clinically assess patients. He assumed that Dr. Schwarz was completing clinical assessments, including over the duration of a prescription. He stated that it was his understanding that Dr. Schwarz was responsible for the patient;
With respect to dosing adjustments:
-Pharmacist A advised that if he had concerns regarding the patient’s dose, he may provide recommendations to Dr. Schwarz. He would not make dosing adjustments himself, as he is not allowed to do so as a pharmacist;
-Pharmacist B advised that he did not make any dosing adjustments or recommendations for dosing changes. If the patient had concerns with their doses, he would advise the patient to follow-up directly with Dr. Schwarz.
ICRC’s Interim Order and Cessation of Prescribing
On November 28, 2017, after receiving an interim report from Dr. Giorshev and a response from Dr. Schwarz, the ICRC imposed an interim order pursuant to s. 25.4 of the Health Professions Procedural Code, prohibiting Dr. Schwarz from prescribing narcotics and other controlled or monitored substances, unless under the guidance of a clinical supervisor. Dr. Schwarz did not obtain a clinical supervisor. Consequently, on January 13, 2018, he ceased prescribing narcotics and other controlled or monitored substances.
On January 30, 2018, Dr. Schwarz advised the College, through counsel, that he did not wish to maintain or seek reinstatement of his prescribing privileges.
FACTS ON PENALTY
On March 8, 2019, the Discipline Committee found that Dr. Schwarz had engaged in professional misconduct, in that he engaged in sexual abuse of a patient 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 considered by members as disgraceful, dishonourable or unprofessional.
On December 2, 2019, the Discipline Committee imposed a penalty including the immediate revocation of Dr. Schwarz's certificate of registration, requiring Dr. Schwarz to reimburse the College for costs related to the patient under program required by section 85.7 of the Code and to appear at the College for a reprimand, and the payment of costs to the College.
On November 14, 2013, the Inquiries, Complaints and Reports Committee of the College ("ICRC") decided to issue a written caution to Dr. Schwarz regarding his care of a patient and, in particular, regarding his follow-up when symptoms change; conducting an examination when indicated; ensuring a prompt referral; and having a process in place to track referrals. The Committee also directed Dr. Schwarz to complete a Specified Continuing Education or Remediation Program ("SCERP"), whereby it required him to complete a Record-Keeping Course and to undergo a reassessment.
In November 2009, the ICRC decided to require Dr. Schwarz to attend at the College to be cautioned regarding his care of a patient and, in particular, regarding the presentation of laryngeal cancer and the steps necessary to achieve a timely diagnosis and referral for patients presenting with this condition.
Dr. Schwarz completed a course on medical record-keeping at the University of Toronto on June 23, 2014.
DISPOSITION
On February 19, 2020, the Discipline Committee issued its Order that
-The Registrar suspend Dr. Schwarz's certificate of registration for a period of three (3) months, commencing from February 20, 2020 at 12:01 a.m.
-The Registrar place the following terms, conditions and limitations on Dr. Schwarz's certificate of registration effective immediately:
Restriction on Prescribing
(i) Dr. Schwarz shall not issue new prescriptions or renew existing prescriptions for or administer any of the following substances:
(a) Narcotic Drugs (from the Narcotic Control Regulations made under the Controlled Drugs and Substances Act, S.C., 1996, c. 19);
(b) Narcotic Preparations (from the Narcotic Control Regulations made under the Controlled Drugs and Substances Act; S.C., 1996, c. 19);
(c) Controlled Drugs (from Part G of the Food and Drug Regulations under the Food and Drugs Act, S.C., 1985, c. F-27);
(d) Benzodiazepines and Other Targeted Substances (from the Benzodiazepines and Other Targeted Substances Regulations made under the Controlled Drugs and Substances Act, S.C., 1996, c. 19; (A summary of the above-named drugs and links to the current regulatory lists are attached has schedules to the Order);
(e) Monitored Drugs (as defined under the Narcotics Safety and Awareness Act, 2010, S.O. 2010, c. 22, with a link to the current regulatory list in a schedule to the Order);
(ii) Dr. Schwarz shall post a sign in all waiting rooms, examination rooms and consulting rooms, in all of his practice locations, in a clearly visible and secure location, in the form set out at Schedule "D" to the Order. For further clarity, this sign shall state as follows:
IMPORTANT NOTICE
Dr. Schwarz must not prescribe or administer any of the following:
Narcotic Drugs
- Narcotic Preparations
- Controlled Drugs
- Benzodiazepines and Other Targeted Substances
- Monitored Drugs
Further information may be found on the College of Physicians and Surgeons of Ontario website at www.cpso.on.ca
(iii) Dr. Schwarz shall post a certified translation(s) in any language(s) in which he provide services, of the sign described in paragraph 4(ii) above in all waiting rooms, examination rooms and consulting rooms, in all of his Practice Locations, in a clearly visible and secure location.
(iv) Dr. Schwarz shall provide the certified translation(s) described in paragraph 4(iii) above, to the College within thirty (30) days of this Order.
(v) Should Dr. Schwarz elect to provide services in any other language(s), he must notify the College prior to providing any such services.
(vi) Dr. Schwarz shall provide to the College the certified translations) described in paragraph 4(iv) prior to beginning to provide services in the languages) described in paragraph 4(v).
Clinical Supervision
(vii) Prior to the expiry of the period of suspension and/or the reinstatement of Dr. Schwarz's certificate of registration, Dr. Schwarz shall retain a clinical supervisor acceptable to the College (the "Clinical Supervisor"), who has signed an undertaking in the form attached to the Order as Schedule "E".
(viii) For a period of four (4) months commencing on the date Dr. Schwarz resumes practice, Dr. Schwarz may practice medicine only under the supervision of the Clinical Supervisor (the "Clinical Supervision"), who shall facilitate the education program set out in the Individualized Education Plan attached to the Order .
(ix) After an initial meeting, Dr. Schwarz shall meet with the Clinical Supervisor every month for four (4) months. At each meeting the Clinical Supervisor shall:
(a) Review a minimum of fifteen (15) patient charts, to be selected at the sole discretion of the Clinical Supervisor;
(b) Discuss with Dr. Schwarz any concerns the Clinical Supervisor may have arising from the chart reviews;
(c) Make recommendations to Dr. Schwarz for practice improvements and inquire into Dr. Schwarz's compliance with the recommendations;
(d) Keep a log of all patient charts reviewed along with patient identifiers; and
(e) Perform any other duties, such as reviewing other documents or conducting interviews with staff or colleagues, that the Clinical Supervisor deems necessary to the Clinical Supervision.
(x) The Clinical Supervisor shall submit written reports to the College after two (2) and four (4) months of Clinical Supervision, or more frequently if the Clinical Supervisor has concerns about Dr. Schwarz's standard of practice.
(xi) Throughout the period of Clinical Supervision, Dr. Schwarz shall cooperate fully with the Clinical Supervision and abide by all recommendations of his Clinical Supervisor with respect to practice improvement and ongoing professional development.
(xii) If the Clinical Supervisor who has given an undertaking in Schedule "E" to the Order is unable to unwilling to continue to fulfill its terms, Dr. Schwarz shall, within seven (7) days of receiving notice of same, obtain an executed undertaking in the -same form from a similarly qualified person who is acceptable to the College and ensure that it is delivered to the College within that time.
(xiii) If Dr. Schwarz is unable to obtain a Clinical Supervisor as set out in the Order, he shall cease practising medicine until he has obtained a Clinical Supervisor acceptable to the College.
(xiv) If Dr. Schwarz is required to cease to practise medicine as a result of section (4)(vii) above, this will constitute a term, condition or limitation on his certificate of registration and that term, condition or limitation will be included on the public register.
Professional Education
(xv) Dr. Schwarz shall participate in and successfully complete all aspects of the detailed IEP, attached to the Order as Schedule "F", including all of the following professional education (the "Professional Education"):
(a) Completion of two (2) CMPA e-modules on record-keeping;
(b) Review and discussion with the Clinical Supervisor of:
1) College Prescribing Drugs Policy;
2) College Medical Records Policy;
3) Canadian Guideline for Opioid Use in Non-Cancer Pain.
(xvi) Dr. Schwarz shall provide proof to the College of his successful completion of the Professional Education, including proof of registration and attendance and participant assessment reports, if applicable, within one (1) month of completing it.
Reassessment of Practice
(xvii) Approximately three (3) months after the completion of the Clinical Supervision and Professional Education, Dr. Schwarz shall undergo a reassessment of his practice by a College-appointed assessor (the "Reassessment"; the "Assessor")
(xviii) The Reassessment may include a review of Dr. Schwarz's patient charts, direct observations, and interviews with staff and/or patients and any other tools deemed necessary by the College. Dr. Schwarz shall abide by all recommendations made by the Assessor(s), and the results of the Reassessment will be reported to the College and may form the basis of further action by the College.
(xix) Dr. Schwarz shall consent to such sharing of information among the Assessor, the Clinical Supervisor, and the College, as any of them deem necessary or desirable in order to fulfill their respective obligations.
Monitoring
(xx) Dr. Schwarz shall inform the College of each and every location where he practices or has privileges, in any jurisdiction (his "Practice Locations)") within fifteen (15) days of commencing practice at that location.
(xxi) Dr. Schwarz shall cooperate with unannounced inspections of his practice by a College representative(s) for the purpose of monitoring and enforcing his compliance with the terms of the Order.
(xxii) Dr. Schwarz shall consent to the College's making appropriate enquiries of the Ontario Health Insurance Plan, the Narcotics Monitoring System and/or any person or institution that may have relevant information, in order for the College to monitor and enforce his compliance with the terms of this Order.
(xxiii) Dr. Schwarz shall be responsible for any and all costs associated with implementing the terms of this Order.
-Dr. Schwarz shall attend before the panel to be reprimanded.
Dr. Schwarz shall pay costs to the College in the amount of $6,000 within 30 days of the date of the Order.
Terms and conditions imposed on certificate by: Inquiries, Complaints and Reports Committee