A hearing into an allegation of professional misconduct against Dr. Michele Graham took place before a Panel of the Discipline Committee of the College of Optometrists of Ontario on May 30, 2007 at the College offices. The hearing was called to order at 10:10 am. The Chair introduced the panel and asked the College and Defence to introduce their parties respectively. The Chair inquired as to any possible conflicts from panel members in hearing the case or any objections about their participation. As there were, none the Chair asked the College to proceed.

 

Counsel for the College indicated that this was a hearing of professional misconduct against Dr. Graham and that there would be an admission, by her, to the allegation. He also stated that there was a Statement of Agreed Facts that was contained in the Document Book and filed as Exhibit #1. A Joint Submission on Penalty, also contained in the Joint document Book, was filed as Exhibit # 2.

  

College counsel read the Notice of Hearing, including the allegation of professional misconduct against Dr. Graham. Dr. Graham admitted to the allegation as read. The Chair reviewed the nature of the allegation, ensuring that Dr. Graham understood it and that her admission was formed voluntarily and without coercion. She confirmed this as fact.

  

The allegation against Dr. Graham was contained in the Notice of Hearing dated November 29, 2006 and was as follows:

The Statement of Agreed Facts indicated that in February 2003, the College had received information from the Ontario Provincial Police that Dr. Graham was under investigation for alleged fraudulent activity in connection with her billings to OHIP and Green Shield Canada. As a result of this information, the Registrar requested, and was granted by the Executive Committee, the authority to conduct a s.75(a) investigation of Dr. Graham’s billing practices.

On April 25, 2003 the College received a formal letter of complaint from Green Shield complaining about Dr. Graham’s billings to it.

 

On September 18, 2003 the Ontario Provincial Police formally charged Dr. Graham with two offences under the Criminal Code in connection with her practice. These charges indicated that between January 1, 1999 and December 18, 2002, Dr. Graham had defrauded OHIP, of monies in excess of $5000.00 and that between January 1, 1999 and December 18, 2002, she had defrauded Green Shield Canada, of monies not exceeding $5000.00. On April 26, 2006 Dr. Graham appeared in Ontario Court of Justice in Woodstock, Ontario and entered a guilty plea to defrauding OHIP and Green Shield over $5000.00.

 

Dr. Graham was sentenced to a conditional sentence of:

 The Statement of Agreed Facts also revealed that Dr. Graham had made full restitution to both OHIP and Green Shield, and that she had voluntarily resigned her membership in the College of Optometrists of Ontario on March 13, 2006. She has not practised as an optometrist since that date.

 

The transcript of the Court Proceedings indicated that OHIP received a complaint from one of Dr. Graham’s former employees suggesting that Dr. Graham had billed for services that were not provided. OHIP’s internal investigation raised enough concern to warrant a referral to the O.P.P. and their investigation resulted in fraud charges being laid against Dr. Graham. These investigations consisted of audit letters to patients, interviews of those patients replying in an adverse manner and interviews of three former employees.

 

The O.P.P. also conducted a detailed review of Dr. Graham’s billings to OHIP and determined that there were 3,015 billings that were not supported by a clinical record. The O.P.P. retained the services of an optometrist to review Dr. Graham’s billings to OHIP and Green Shield. This review supported the O.P.P.’s investigation results. Subsequently the Crown and Dr. Graham agreed to a figure of $63,121.45 as losses to both OHIP ($61,481.45) and Green Shield ($1,640.00) and that this was the amount to be paid back.

 

The transcript of the Judge’s remarks indicated that Dr. Graham had breached her fiduciary responsibility to society and her profession and that she did this knowingly. As a matter of general deterrence she was sentenced to one year’s imprisonment, to be served in the community, and restitution of the fraudulent billings. As a matter of specific deterrence, the Judge felt that Dr. Graham had suffered adequate penalty by the loss of her position in society, the loss of her profession and the anguish that she had brought upon herself.

 

The Certificate of Conviction presented to the panel demonstrated that Dr. Graham had indeed been found guilty and that she was ordered to make restitution of the fraudulent billings.

 

The panel heard from the independent legal counsel for the panel that the adversarial parties had agreed that the facts did support a finding of professional misconduct and instructed the panel to consider this in their deliberations. Both the prosecution and defence agreed with his advice.

  

The panel retired and deliberated as to Dr. Graham’s plea. The evidence clearly indicated that Dr. Graham had, in fact, deliberately billed OHIP in a fraudulent manner over a period of four years and that she did not dispute this fact at the court proceedings. There were some cases that could be considered questionable as she actually did see the patients and actually did perform the services, such as visual fields, but did change the date of service so that she could be paid. The rules of OHIP did prohibit billing for this service on the same day as a full eye exam at that time and this led to her inappropriate billing in an effort to be paid. There were other flagrant examples of fabricating services to patients by submitting a list of patients to be billed for services that she had not performed. This was a clear breach of trust and caused the court significant concern.

 

The O.P.P. carried out an extensive analysis of her practice and records over a four-year period, 1999 through to 2002, and also interviewed three of her former employees with respect to inappropriate billing. Their investigation revealed that Dr. Graham billed, on average, three times the number of follow-up visits compared to those billed by other optometrists in Ontario as well as in her area. Their review of her records also identified 3,015 billings to the Ministry of Health and Long Term Care that were not substantiated by clinical notes with respect to those billed services. They also retained the services of an optometrist to review her clinical files and to provide them with a report on the nature of her billings. The optometrist’s findings supported the O.P.P. view that these billings were fraudulent and, in fact, raised concern over another $33,446.35 of questionable accounts billed to the Ministry of Health and Long Term Care. The court decided to not pursue those, as there was some room for interpretation in many of these files, but $61,481.45 could not be supported by any clinical record and accordingly was ordered to be reimbursed.

 

Dr. Graham did not offer any contrary comment or evidence.

 

After considering all of the evidence the panel accepted her plea, and confirmed her admission to the allegation of professional misconduct.

Dr. Graham and the College presented a document indicating that they had arrived at a Joint Submission on Penalty as follows: 

College counsel indicated that there are two factors in a penalty in this type of case – “general deterrence” and “specific deterrence”. He suggested that the profession should understand that this type of behaviour will not be tolerated based upon her suspension, court case and loss of position and reputation within the profession. He also led the panel through the matter of “specific deterrence” and said that it appeared that Dr. Graham had “gotten the message” as shown by her remorse, her admission to the allegations and her cooperation in the investigation by the College.

 

Independent legal counsel for the Committee advised the panel that, as a matter of law, the panel should not interfere with the joint penalty if the decision appears reasonable and does not bring the administration of justice into disrepute. The panel accepted these comments and retired to consider its decision.

The panel was impressed by Dr. Graham’s apparent remorse, regret and emotional distress over her inappropriate behaviour, and by her willingness to cooperate and to admit to the allegations. She seemed to understand the errors that had been made and was prepared to repay society for this breach of trust.

 

She also had a significant penalty in her suspension from practice, her assessment of costs, her publicly recorded penalty in the College Register and the reprimand delivered by the Discipline Committee.

 

Dr. Graham was convicted in Court and sentenced to imprisonment for a one-year period. She had also been made to make retribution to OHIP and Green Shield and had suffered the public disgrace of having this take place in front of a court of law.

 

Dr. Graham is not practising as an optometrist. If she wished to re-enter practice, she would have to re-apply for registration and face the Registration Committee before being issued a new Certificate of Registration.

 

The panel was convinced that she had received a penalty that served justice and that she appeared to be truly remorseful and understanding of her inappropriate actions. The panel agreed with the Joint Submission on Penalty.

The member was advised of her right to appeal within thirty days of the hearing and was informed that, if she elected to waive her right to appeal, the panel was prepared to deliver the reprimand on the same day as the hearing. Dr. Graham did waive her right to appeal and the reprimand was delivered after the Hearing had concluded.

 

 Dated at Toronto this 20th day of June, 2007