On May 11, 2020, on the basis of an Agreed Statement of Facts on Liability and Admission, and a Statement of Uncontested Facts and Plea of No Contest, the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the College”) found that Dr. Lionel Gines Martinez (“Dr. Martinez”) committed an act of professional misconduct, in that in that he failed to maintain the standard of practice of the profession, and engaged in 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.
BACKGROUND
The facts set out in the Agreed Statement of Facts and Admission included the following:
Dr. Martinez is a 58-year-old family physician who received his certificate of registration authorizing independent practice from the College on July 22, 1999. At the relevant times, Dr. Martinez practised at A+ Medical Clinic in Toronto, Ontario.
Reassessment Pursuant to 2014 Undertaking
In 2014, Dr. Martinez entered into an undertaking with the College that required him to complete a period of supervision with respect to his medical record-keeping and undergo a reassessment of his practice.
Pursuant to the terms of the 2014 Undertaking, after the supervision of Dr. Martinez’s practice was complete, the College conducted a reassessment of Dr. Martinez’s practice with a focus on his medical record keeping. The College retained Dr. Brian Silver, an experienced family physician, to conduct the reassessment. Dr. Silver provided a reassessment report to the College, dated May 4, 2017. In his report, Dr. Silver opined that Dr. Martinez failed to maintain the standard of practice of the profession in his record keeping in 17 out of 20 charts reviewed. Dr. Silver’s primary concerns were legibility, organization and completeness of Dr. Martinez’s chart entries and Cumulative Patient Profiles. Dr. Silver also opined that Dr. Martinez displayed a lack of knowledge, skill, and judgment by prescribing a high-dosage steroid ointment to a patient to treat breast intertrigo (an inflammatory skin condition), and by failing to document vital statistics, such as height and weight, for his diabetic patient.
In his response to Dr. Silver’s reassessment report, Dr. Martinez advised that he had decided to engage in further remedial steps regarding his recordkeeping, as well as management of skin conditions. He also advised that he left his previous practice location and had also moved to an electronic medical record system (“EMR”) to address issues of legibility. Dr. Martinez provided examples of more recent electronic chart entries from his practice for Dr. Silver to review.
Dr. Silver provided an addendum report stating that Dr. Martinez’s response did not change his opinion with respect to whether Dr. Martinez maintained the standard of practice of the profession in the charts previously reviewed. Dr. Silver commented that the more recent sample medical records showed improvement over the earlier charts, but noted typographical errors and omissions in five charts.
Time-Based Billing Codes
On March 23, 2015, the College received information from the National Investigative Unit of Medavie Blue Cross, the provider that administers the Interim Federal Health Program (the “IFHP”) on behalf of the Canadian government. The IFHP provides limited, temporary health coverage for certain groups, including refugees and refugee claimants in Canada. Ontario physicians submit billing claims to the IFHP based on fee codes set out in the Ontario Health Insurance Plan (“OHIP”) Schedule of Benefits.
Medavie Blue Cross advised the College that it had concerns regarding Dr. Martinez’s practice after conducting a review of his billing claims and conducting an onsite audit of his practice. Medavie Blue Cross’s concerns included:
a) overlapping time stamps for time-based billing codes;
b) multiple patients seen at the same time on the same date; and
c) patient records for time-based services that did not include time stamps indicating the duration of the service provided.
Medavie Blue Cross provided examples of each concern documented in its review of Dr. Martinez’s billing claims and patient records.
Under the OHIP Schedule of Benefits, mental health care services, including Cognitive Behavioural Therapy (“CBT”), are time-based services. Time-based billing codes, including K005 (Primary Mental Health Care) and K007 (Individual Psychotherapy), are fee codes in the OHIP Schedule of Benefits that are claimed by physicians in time units based on the amount of time the physician spends rendering the service to the patient.
Under the OHIP Schedule of Benefits, to claim these “K-Codes”, physicians are required to spend a minimum amount of time with the patient per unit claimed, and to document in the patient’s permanent medical record the time that the service started and ended.
Based on the information from Blue Cross, the College conducted an investigation of Dr. Martinez’s billing claims and his provision of CBT.
The College retained Dr. Nancy Merrow, an experienced family physician and chief of staff at Orillia Soldiers Memorial Hospital, as a Medical Inspector to opine on whether Dr. Martinez maintained the standard of practice of the profession in his provision of time-based mental health services and in his billing claims. Dr. Merrow reviewed 30 of Dr. Martinez’s patient charts, as well as his billing claims and day sheets, and conducted an interview of Dr. Martinez.
In her report, Dr. Merrow concluded, based on the discrepancies between Dr. Martinez’s patient encounter logs, patient records, and billing claims, that Dr. Martinez did not meet the standard of practice in terms of his administrative oversight of his office and his billing claims, including:
a) submitting claims for lengthy visits without any evidence that the patient required services that would take 30-90 minutes to deliver;
b) submitting claims for counselling at the same visit as another assessment without a distinct diagnosis as required by the OHIP Schedule of Benefits;
c) submitting claims to OHIP when he should have submitted them to the Workplace Safety and Insurance Board; and
d) frequently submitting claims for providing CBT in circumstances in which the only warranted service was an intermediate assessment, and/or without documenting sufficient information (including any goal, plan, or outcome) to demonstrate that the service was provided.
Dr. Merrow observed that Dr. Martinez used the term “CBT” loosely to describe all kinds of discussions with his patients, and there was little evidence of Dr. Martinez practicing CBT with any kind of methodology. Dr. Merrow concluded that Dr. Martinez displayed a lack of knowledge and skill with respect to his practice of CBT, and a lack of judgment with respect to recording inaccurate start and stop times for patient encounters.
Dr. Martinez provided a response to Dr. Merrow’s report dated February 8, 2016. Dr. Merrow provided an addendum report dated February 17, 2016, in which she addressed Dr. Martinez’s response to her report. Dr. Merrow’s opinion with respect to Dr. Martinez’s provision of CBT, billing issues, and poor documentation remained unchanged.
Dr. Martinez wrote to the College on July 22, 2016, acknowledging that he was solely responsible for all of his billing errors.
Dr. Martinez advised the College on December 10, 2018, that he had entered into a voluntary repayment agreement with the Ministry of Health to repay the amount of $29,275.27 in respect of improperly claimed K-Codes.
On January 8, 2019, the Ministry of Health wrote to Dr. Martinez to confirm the voluntary repayment agreement, indicating that the agreed upon amount of $29,275.27 reflects 30% of the services that Dr. Martinez improperly claimed as K005 primary mental health care for the period reviewed by the Ministry. The Ministry of Health acknowledged that this arrangement represents a full and final resolution of the incorrect claims for billing code K005 with service dates between April 2014 and May 2016.
On November 18, 2015, the College investigator spoke with a representative of Medavie Blue Cross. The investigator was informed that Dr. Martinez had started making repayments to Medavie Blue Cross and at that point had repaid $500.
In November 2019, Dr. Martinez also entered into an agreement with Medavie Blue Cross to repay the outstanding amount of $3,336.65 in respect of his improper billing claims. Dr. Martinez has made full repayment of the amount owing to Blue Cross.
Diagnostic Imaging Referrals
On January 22, 2016, the College received information from the Ministry of Health and Long-Term Care (the “Ministry”) advising that it had reviewed claims to the Ontario Health Insurance Plan (“OHIP”) for diagnostic studies rendered at an independent health facility where Dr. Martinez was listed on the claim to OHIP as the referring physician. The letter stated that the majority of patients referred in the period of April 1, 2014, to January 21, 2016 underwent multiple diagnostic studies on a single service date. Further, the Ministry reviewed requisitions and interpretive reports for a number of patients referred in this time period and stated in the letter that there was no medical necessity for the imaging tests. Based on the information from the Ministry, the College conducted an investigation of Dr. Martinez’s practice.
The College retained Dr. Linda Klapwyk as a Medical Inspector to review Dr. Martinez’s practice, in particular his ordering of diagnostic imaging, and to opine on whether Dr. Martinez’s care met the standard of practice of the profession. Dr. Klapwyk is an experienced family physician and professor of family medicine at the University of Toronto. Dr. Klapwyk reviewed Dr. Martinez’s OHIP billing claims and 25 of Dr. Martinez’s patient charts and conducted an interview of Dr. Martinez. Dr. Klapwyk provided a report to the College, dated March 4, 2017.
Dr. Klapwyk concluded that Dr. Martinez failed to maintain the standard of practice of the profession. Dr. Klapwyk opined that, in twenty-four out of twenty-five patient charts reviewed, there was evidence of diagnostic testing, including x-rays, ultrasounds, bone density scans, cardiac testing, and/or mammography ordered by Dr. Martinez without an indication for doing the tests.
In his interview with Dr. Klapwyk, Dr. Martinez blamed his office staff for adding tests onto his requisition forms without his knowledge by checking off additional tests on the requisition forms after Dr. Martinez had signed them. Assuming this was the case, Dr. Klapwyk noted there was no documented concern by Dr. Martinez at follow-up visits with patients about the amount of testing that had been done without Dr. Martinez’s authorization. Dr. Martinez advised Dr. Klapwyk that he had been aware of tests being added since 2014, and told Dr. Klapwyk that he had attempted to resolve the issue by speaking to office staff and the clinic’s owner. Dr. Martinez acknowledged that he did not call the police, perform a practice audit, or document his concerns.
Dr. Klapwyk opined that if Dr. Martinez ordered the diagnostic imaging tests, he displayed a lack of knowledge or judgment and did not maintain the standard of practice of the profession.
Dr. Klapwyk also opined that even if the tests were ordered by Dr. Martinez’s office staff without his knowledge, Dr. Martinez still failed to maintain the standard of practice of the profession as follows:
a) Dr. Martinez failed to protect his patients from harm due to unnecessary tests, worry, and radiation exposure;
b) Dr. Martinez demonstrated a profound lack of judgment in not documenting any concern about tests being done that he did not order or notifying appropriate authorities when he became aware of tests being ordered in his name; and
c) Dr. Martinez was complicit in his staff’s actions by continuing to review patient test results from 2014 to 2016 without documenting any concerns or taking actions other than speaking with his staff.
In Dr. Klapwyk’s opinion, Dr. Martinez exposed his patients to a risk of harm or injury.
Dr. Klapwyk also expressed concerns about other aspects of Dr. Martinez’s care including inadequate knowledge of vitamin B12 deficiency, vaccinations, illegible records, and instances of inappropriate billing in which Dr. Martinez billed OHIP for codes that were not supported by his documentation, as well as specific care-related concerns in four patient charts.
Dr. Martinez provided a response to Dr. Klapwyk’s report, dated April 13, 2017, in which he acknowledged Dr. Klapwyk’s comments about the ordering of unnecessary tests. Dr. Martinez wrote that he “recognizes that he ought to have taken further steps in and after 2014 to stop the unnecessary and inappropriate ordering of x-rays and other diagnostic studies for his patients.”
Dr. Klapwyk provided an addendum report dated November 29, 2017, in which she addressed Dr. Martinez’s response to her report. Dr. Klapwyk’s opinion with respect to Dr. Martinez’s care remained unchanged.
A Statement of Uncontested Facts and Plea of No Contest filed as an exhibit and presented to the Committee included the following further facts:
Orthotic Devices
In January 2017, the College received information from Sun Life Financial (“Sun Life”), an insurance provider, that Dr. Martinez had provided medical referrals for orthotic devices while working at a facility that Sun Life was investigating, called “Therapeutic Mobile Care” (“TMC”). Sun Life advised the College that Dr. Martinez had admitted that he had signed prescription forms for patients without seeing or assessing them. Sun Life also advised that Dr. Martinez offered to make repayments to Sun Life. Based on the information provided by Sun Life, the College investigated Dr. Martinez’s orthotics- prescribing practice.
Sun Life provided the College with a summary of an interview its investigators conducted of Dr. Martinez. According to the interview summary, Dr. Martinez told the Sun Life investigators that he initially did not pre-sign any forms at TMC, and that he saw patients and prescribed only what they needed; however, this “morphed” into him pre-signing prescriptions for orthotics without seeing patients, allowing the clinic and patients to submit claims and receive payment.
The College conducted an interview of Dr. Martinez, during which Dr. Martinez provided information that was false and misleading, and inconsistent with what he told Sun Life.
Contrary to what he told Sun Life, Dr. Martinez stated in his interview by the College that he saw and examined all the patients for whom he prescribed devices. Dr. Martinez also told the College that his statements to the Sun Life investigators about pre-signing prescriptions were not accurate.
PENALTY
The following additional facts were presented to the Committee in an Agreed Statement of Facts Regarding Penalty:
Dr. Martinez currently works at clinics in Toronto and Vaughan. His practices consist primarily (but not exclusively) of psychotherapy.
In his current practice settings, Dr. Martinez utilizes EMR systems, which help him address the organization, completeness, and legibility of his medical records.
Dr. Martinez’s History with the College
Dr. Martinez does not have any discipline history.
In early 2009, as a result of a public complaint to the College about his conduct and care, Dr. Martinez was cautioned in writing by the Complaints Committee about the importance of undertaking and documenting a thorough history and physical examination, and ensuring that the necessary investigations are ordered with appropriate follow-up. The Committee also cautioned Dr. Martinez to review mandatory reporting requirements for Ontario physicians.
Dr. Martinez’s 2009 Undertaking and 2013 Reassessment
In 2009, as a result of concerns regarding his prescribing practices that arose in two College investigations, Dr. Martinez entered into an undertaking with the College (the “2009 Undertaking”). In the 2009 Undertaking, Dr. Martinez agreed to voluntarily resign his prescribing privileges for Narcotic Drugs and Narcotic Preparations, to complete professional education in medical record-keeping and prescribing skills, and to submit to a reassessment of his practice.
In 2013, pursuant to the terms of the 2009 Undertaking, the College retained Dr. Irene Cohen to conduct a reassessment of Dr. Martinez’s practice. Dr. Cohen is an experienced family physician who was also the medical director of the Thames Valley Family Health Team. In her reassessment report, Dr. Cohen opined that Dr. Martinez overall met the standard of practice of the profession and did not display a lack of knowledge, skill or judgment. However, Dr. Cohen expressed some concerns about Dr. Martinez’s record-keeping and boundary-setting with patients. Dr. Cohen also expressed concerns about Dr. Martinez’s billings in a number of charts. Dr. Cohen recommended that Dr. Martinez undergo a further period of clinical supervision with respect to these issues.
As a result of the concerns identified by Dr. Cohen, Dr. Martinez agreed to enter into the 2014 Undertaking, which superseded his 2009 Undertaking with the College.
Subsequent Remediation Efforts by Dr. Martinez
Following receipt of Dr. Silver’s addendum report dated July 16, 2017, Dr. Martinez delivered a further response to the College, dated November 29, 2017. In his response, Dr. Martinez advised the College that he had requested literature from the CMA and completed self-study in a number of areas in which Dr. Silver had expressed concerns about his care. Dr. Martinez provided a list of the resources that he told the College he had reviewed. Dr. Martinez also advised the College that he had “shadowed” a dermatologist in November 2017, and had engaged in 12 hours of one-on-one training on the topic of psychotherapy.
Dr. Martinez attended the University of Toronto Medical Recordkeeping course on June 22, 2017, and attended a Continuing Medical Education course on cardiovascular disease in diabetes on November 8, 2017.
On November 23, 2018, the College was advised of additional continuing education activities Dr. Martinez had pursued since responding to the addendum report of Dr. Silver on November 29, 2017. Dr. Martinez advised the College that he had completed additional CME activity covering topics including: mindfulness-based chronic pain management, mental health care, and the provision of psychotherapy.
Since November 23, 2018, Dr. Martinez has completed additional continuing education activities on topics including mental healthcare and dialectical behavioural therapy.
DISPOSITION
The Discipline Committee ordered:
- Dr. Martinez to attend before the panel to be reprimanded
- The Registrar to suspend Dr. Martinez’s certificate of registration for a period of 12 months, commencing May 12, 2020 at 12:01 a.m.
- The Registrar to place terms, conditions and limitations on Dr. Martinez’s certificate of registration, including: compliance with Policy re suspension; professional education; and clinical supervision with a reassessment.
- Dr. Martinez to pay costs to the College in the amount of $6,000.00 within 30 days of the date of the Order.
DECISION AND REASONS
On July 6, 2020, the Committee released its full decision and reasons in this matter. The Decision and Reasons are available for review on the College’s website.
Terms and conditions imposed on certificate by: Member
