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College of Physicians & Surgeons of Alberta - CPSA
https://search.cpsa.ca
Viliam Makis ("Dr. Makis") is a Nuclear Medicine Physician employed at the Cross. Cancer Institute ("CCI") by Alberta Health Services ("AHS") ...
Oooooh... so serious!
https://search.cpsa.ca/Complaints?fn=023044-000019262482-OT
1. Dr. Viliam Makis ("Dr. Makis") is a Nuclear Medicine Physician employed at the Cross Cancer Institute ("CCI") by Alberta Health Services ("AHS") until October 31, 2016.
2. The charge concerns a single allegation of misconduct that Dr. Makis on April 21, 2017 confronted a Colleague accusing her of dishonesty in the information that she had provided to the College of Physicians & Surgeons (the "College") and telling her that she would suffer negative consequences as a result of her lying.
3. Dr. Makis admitted only that he had attended the event where the confrontation was said to occur but denied the confrontation stating that he had only exchanged a brief greeting on one day when passing and otherwise had not interacted with her in any way.
4. Dr. Makis insisted that the Charge was part of a conspiracy to sabotage and destroy his CCI practice. He alleged the conspiracy involved not only some of his former Colleagues, but also his former employer AHS and the College itself in person of the College's Assistant Registrar and Complaints Director.
5. The Tribunal heard and weighed the evidence, reviewed the exhibits and considered the submissions of the Counsel for the College ("Counsel") and of Dr. Makis, on his own behalf. The Tribunal concludes that the incident occurred as alleged and constitutes unprofessional conduct that breaches the obligations expected of a Physician Member of the College.
6. The Tribunal proposes to set out the details of the Hearing, the necessary background, a summary of the evidence heard and the submissions tendered, then to outline the reasons for its decision in this regrettable circumstance.
II.HEARING PROCESS
7. The College pursuant to a Notice dated October 16, 2017 convened a Hearing Tribunal on January 15 and 16, 2017.
8. Mr. Craig Boyer, Counsel for the College provided an opening statement and called four
witnesses including , Ms. Marnie Heberling, Dr. John Ritchie and Dr. Michael Caffaro.
9. Dr. Makis advised that he had chosen to represent himself and testified on his own behalf.
10. In addition to the sworn testimony, the Tribunal accepted 27 Exhibits, heard closing submissions and advised that it would consider the evidence and submissions to determine whether the allegation was proven. If proven, there would be a separate sanction phase to conclude the hearing.
III.THE CHARGE
11. Dr. Makis was charged with unprofessional conduct in that on or about April 21, 2017, he
did confront and accuse her of being dishonest in her information provided to the College Investigator in respect to an earlier complaint made against Dr. Makis and investigated by the College. Dr. Makis was accused
of telling that she would suffer negative consequences for lying to the Investigator. The conduct was contrary to his obligations under the Canadian Medical Association Code (the "CMPA") of Ethics, sections 46 and 52, the College's Standards of Practice regarding compliance with the CMA Code of Ethics.
12. The College further alleged that conduct was in breach of the express directions of Registrar of the College as set out in an article included in the June 2016 edition of the Messenger. There, the Registrar, emphasized that complainants and witnesses who brought concerns and information forward to the College must be free to do so without fear of retaliation. Any retaliation by a physician subject to such concerns would be considered unprofessional conduct and would be investigated as such.
13. While Counsel in correspondence and during the hearing described as the Complainant, the Tribunal notes that provided information to the College but it
was the College itself that opened a Complaint pursuant to its powers under Section 56 of the Health Professions Act.
IV. SUMMARY OF THE BACKGROUND CONTEXT
14. Dr. Makis, a Nuclear Medicine Physician, accepted a position at the CCI in August 2013 that he expected to be permanent and long term. After relocating and commencing work, Dr. Makis was presented with and did execute a Medical Services Agreement ("MSA") with an initial term of November 1, 2013 to October 31, 2016 with provision for termination on consent, by notice or payment of remuneration.
15. Soon after starting in his position at the CCI, Dr. Makis raised concerns
with his employer that he considered impacted the quality of patient care and ongoing cancer research projects. Dr. Makis considered not only that the complaints went unaddressed but that steps had been taken to prevent and suppress his legitimate concerns. Dr. Makis therefore initiated a formal complaint.
16. Dr. Makis also felt that the formal complaint went unaddressed and resulted in further attempts to discredit him. Dr. Makis joined with five physicians in a written concern about the CCI leadership in May 2015. While that resulted in meetings with the involved physicians, Dr. Makis felt that they failed to address the concerns in a meaningful way.
17. In August 2015, Dr. Makis alleged that the Site Leader at CCI began to advocate for Dr. Makis' dismissal and/or consideration of not renewing the MSA and further encouraging and even directing that concerns discrediting Dr. Makis be brought forward.
18. In December 2015 three support staff initiated a written concern to AHS and subsequently one of the three made a complaint to the College alleging that through texts, emails and social media posts Dr. Makis had engaged in inappropriate and disruptive behaviour.
19. AHS immediately began its own investigation and Dr. Makis was placed, initially with his agreement, on administrative leave. The AHS investigation occurred over five months and, in June 2016, resulted in a finding of six allegations. Dr. Makis promptly agreed to abide by the resulting recommendations and training while advising that he wished to return to practice.
20. The Medical Director of AHS proposed a consensual resolution whereby Dr.
Makis would agree to relinquish his hospital privileges, not return to his practice and not request renewal of the MSA.
21. Dr. Makis declined and the Medical Director issued a Decision arising from the AHS investigation that found two of the allegations proven and referred all allegations to the College. In July 2016 Dr. Makis was provided with notice that the MSA would not be renewed he was not allowed to return to his practice.
22. By letter dated September 8, 2016 to Dr. Michael Caffaro in which AHS advised the College of the unresolved concerns with respect to the two allegations that it found substantiated in its own investigations and in referring them to the College asked that it address the issues.
23. The College Report forwarded to Dr. Makis on October 7, 2016 in respect to the single Complaint made and the further allegations forwarded by AHS found, as had the initial
AHS investigation, one supported allegation that Dr. Makis' conduct toward and communication with staff had crossed professional boundaries. The College recommended and, Dr. Makis agreed, to take part in a collaborative quality improvement process.
24. Counsel, in respect to this first Complaint concerning Dr. Makis, Complaint No.
160003.1.1 tendered an excerpt from the Investigation Report dated September 30, 2016
that contained only the information provided by via telephone on March 15, 2016 and the Investigator's finding confirming inappropriate conduct and communication with staff.
25. Counsel further tendered the formal letter dated October 7, 2016 from Dr.
Michael Caffaro communicating the findings. Provided as well was a Memorandum of Understanding executed by the College Complaints Director and by Dr. Makis accepting the findings of inappropriate conduct and providing for remedial action that Dr. Makis undertake at his expense a communications course and a boundaries course acceptable to the Complaints Director. In addition, Counsel tendered Certificates of Completion in February 2017 in respect to two recommended courses.
26. Much of the above material was not tendered by Counsel but was rather cited by Dr. Makis in an Amended Statement of Claim filed by him in the Court of Queen's Bench of Alberta on December 11, 2017 naming AHS and the College as Defendants and included as an Exhibit in these proceedings. It is apparent from the amendments that the initial Statement of Claim named only the AHS. Dr. Makis now listing a different address for service had added the College as co- Defendant. The document is Exhibit 19.
V. APRIL 21, 2017 INCIDENT
27. It was with this background that , allegedly found herself face to face
with her
former colleague at the Canadian Association of Nuclear Medicine meeting
in Toronto.
had been asked to give information to the Investigator concerning
the first
complaint. She had begun to work with Dr. Makis and the team in July 2015. She enjoys
good relationships with all staff, including Dr. Makis. She was not party
to the sexually
inappropriate behaviour described by others, heard rumblings among them that they were
afraid for their jobs if they spoke against him, who they felt to be arrogant and considered
himself to be above nursing staff. At one meeting only she noted she had
seen the arrogant
side of him.
28. As reported at the time; and confirmed in her sworn testimony, Dr. Makis
approached her, stood facing her, stared at her and asked, "Did you really think you could
get away with it?" To which she replied that she did not know what he was talking about. "Oh really, you really don't know what I'm talking about?" To which she repeated that she did not know. "So you think you could lie to the College about me and get away with it?" Her response, "I don't lie, I always tell the truth." Facing a further challenge she repeated that she told the truth and was told, "You had better watch out. You are going to be called to testify under oath in front of the College". She also heard something about them being criminals and finally that, "You are going to be looking for a new job".
29. reported that she felt threatened by his words and demeanour. Shortly after, she participated in a scheduled conference call and communicated the exchange to her Site
Leader, . After the conference call she first called Sandra Plupek at AHS, then Dr. Michael Caffaro at the College who directed her to Dr. Karen Mazurek ("Dr. Mazurek") of the College.
medical career via the College complaint process. Dr. Makis named additional doctors and officials as being involved in these alleged abuses, in the alleged cover-up and in the sabotage of medical careers. He also named other physicians who were subject to such abuse. Dr. Makis advised that he had communicated and requested the assistance of the AHS CEO, AHS Board Chair and AHS Ethics Compliance Officer to no avail.
37. In an email exchange provided by Dr. Makis, between himself and his former Independent Legal Counsel, on October 16, 2017, Dr. Makis advised that his number one priority was amending the statement of claim to include the College as a co-defendant, that he did not wish to discuss it further and one way or another it was getting filed within a week.
38. By registered letter dated October 16, 2017 addressed to Dr. Makis at his
home address Counsel to the Complaints Director wrote to provide a Notice of Hearing and advise that the date had been unilaterally set and could be adjourned should he require additional time to prepare. Dr. Makis was asked to have his Independent Legal Counsel contact Counsel for the Complaints Director and further advised that he might contact the CMPA for assistance. Copies of the investigation reports can be provided to him or his Independent Legal Counsel on their request. Counsel for the Complaints Director provided the same information by email to Dr. Makis
39. Dr. Makis emailed Counsel for the Complaints Director initially requesting copies of the College's investigation records which Counsel replied would be sent via a USB stick. Dr. Makis then asked that Counsel for the Complaints Director to confirm that he was an official representative of the College which was confirmed, although Dr. Makis appeared to consider that a satisfactory reply had not been received.
40. It appears Dr. Makis refused to accept the registered package. Instead, on October 20, 2017, he filed a witness statement with the Edmonton Police Service alleging that forged and fraudulent government documents had been delivered by Mr. Craig Boyer claiming to be legal counsel for the Complaints Director of the College.
41. By letter of the same date, addressed to Dr. Scott McLeod, Registrar of the College ("Dr. McLeod"), Dr. Makis described an "extremely bizarre situation" in respect to the current complaint that he suggested had been open and dormant for 5 months. His concerns included a College Investigator that refused to speak to him about the case, despite repeated attempts, then Dr. Makis received a "Notice of Hearing" that seemed to come from a private lawyer not representing the College, on unofficial documents with forged seals and signatures.
42. By email of the same date Dr. McLeod suggested that Dr. Makis retain legal counsel for advice in these matters and in further response communicated how Dr. Makis could initiate a Complaint against the Investigator Marnie Heberling.
43. By email of October 28, 2017 Dr. Makis requested that Dr. McLeod remove Dr. Caffaro and Investigator Heberling from the College premises, confiscated [sic] their email addresses and computers, and launch an immediate investigation into their activities before the College becomes embroiled in the biggest public corruption scandal in recent College history. Dr. Makis advised further that a report on the corruption at the College was to be provided. Dr. McLeod advised by email of October 30, 2017 that he would not be removing the two officials and that he looked forward to seeing Dr. Makis' report that outlined his perception of corruption at the College.
55. recalled seeing Dr. Makis at two other conferences, one in Halifax in April of 2016, the other Barcelona. She had no interactions with him in Halifax beyond a greeting. She avoided him in Barcelona for which no date was provided. Dr. Makis later testified that he had never been to Spain, let alone Barcelona.
56. Dr. John Ritchie, as Associate Complaints Director of the College, received the information
of Department of Oncology, University of Alberta in respect to an alleged interaction that occurred on April 21, 2017 with Dr. Makis. Dr. Ritchie on May 8, 2017 opened, on behalf of the College, a Section 56 Complaint under the Health Professions Act. Dr. Makis, by letter dated May 19, 2017, responded to correspondence stated to be from Katherine P. Damron, Complaint Inquiry Coordinator. The Tribunal did not have a copy of the May 18, 2017 letter in their materials. When questioned by the Tribunal, Dr. Ritchie stated that the College must open a complaint within 30 days upon receipt of the information and then all parties involved are notified. Counsel then pointed the Tribunal to Dr. Makis' response of May 19, 2017.
57. It was confirmed and otherwise was not in dispute that Dr. Makis was a regulated member of the College at the times relevant to the matters before the Tribunal.
58. Dr. Ritchie testified that the College had in THE MESSENGER, the College's official publication, Issue 224, dated June 2016, sent to members including Dr. Makis, published an article authored by Dr. Theman, the Registrar at the time, titled Protecting Complaint Witnesses. The article concerns a discipline matter where, despite an apparent resolution in respect to an initial bullying charge, a regulated member brought a defamation action against a witness in a complaint. The Registrar outlines the College's view that its witnesses (and potential witnesses) must be able [to] come forward and report behaviour and actions by physicians without fear of retaliation. The alternative is that complainants and witnesses may feel that they cannot be entirely truthful and forthcoming, or may simply choose to remain silent, for fear of retaliation. The Registrar asked, "What could be more disruptive than to retaliate against a witness for raising or validating concern about such [workplace bullying and intimidation] behaviour." The Registrar expressed his opinion on the legal issues surrounding absolute as opposed to qualified privileged and reiterated, "the position of the CPSA is clear: we will not tolerate retribution against complainants or witnesses." The Registrar then cited, with approval, the following from the decision in the matter: "Council expects that members of the profession will govern themselves under the presumption that the College will do everything it its power to protect witnesses and participants involved in College investigations and hearings."
59. Dr. Ritchie reviewed the Complaints procedure of the weekly "Wednesday Meetings" to review the completed investigations and determine the appropriate disposition. Typically, the Committee has the file on the agenda the Wednesday before the meeting in which it is reviewed. The Investigator attends to answer questions and the Investigator's report is part of the shared review. The determination is made by the collective, by mutual agreement, as to the disposition of the file, whether it should be dismissed, dismissed with some advice, sent for resolution, or sent to a hearing. It is only when a decision is made that a copy of the investigation report is provided to the respondent physician. The determination was that the complaint against Dr. Makis should be sent for consideration of a hearing. In response to questions from Dr. Makis, Dr. Ritchie testified that he could not recall whether there was discussion around getting input form Dr. Makis other than the May 19th response, nor could he recall whether there was discussion of possibly pursuing any form of resolution process. He stated that the foundation of the meeting is always to be aware of the options. The collective, collaborative decision was for a consideration of hearing which would indicate that an informal resolution process was not considered appropriate.
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