Allegations:

The Inquiries, Complaints and Reports Committee (ICRC) referred Dr. Alex Mah to the Discipline Committee regarding the following allegations of professional misconduct: 
1)Dr. Mah contravened Paragraph 36 of O. Reg. 859/93 1.(1) in that he issued a statement or receipt which did not, i)Itemize the services provided and the fees charged, 
ii)describe the ophthalmic appliances utilized by the member in the performance of the services, or 
iii)set out the commercial laboratory cost incurred by the member in the provision of the services.

2)Dr. Mah contravened Paragraph 37 of O. Reg. 859/93 1.(1) in that he charged or received payment for contact lenses, a subnormal vision device or eyeglasses in excess of the commercial laboratory cost incurred by the member in the provision of the service.

3)Dr. Mah contravened Paragraph 53 of O.Reg. 859/93 1. (1) in that he engaged in conduct or performed an act that, having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical.

 

Response to the Allegations:

Dr. Mah admitted to allegations 1 and 3 and wished to withdraw allegation 2. The case proceeded on an Agreed Statement of Facts.

 

Facts & Evidence:

•Allegation 1: 
A College investigation revealed that Dr. Mah had issued statements or receipts to his patients which did not: 
a)Itemize the services provided and the fees charged; 
b)Describe the ophthalmic appliances utilized in the performance of his services; or 
c)Set out the commercial laboratory costs incurred in the provision of his services.

Several examples of these receipts and statements were included as Schedule B 
i)2 receipts to Patient A dated May 28, 2007. 
ii)2 receipts to Patient B dated August 22, 2006. 
iii)2 receipts to Patient C dated August 27, 2007.

•The receipts are typical of the receipts and statements issued by Dr. Mah to his patients. The parties agreed that they do not comply with s.1(1) paragraph 36 of O. Reg 859/93 of the Optometry Act 1991, S.O. 1991, c.35.

•Allegation 3: 
A formal complaint was filed by “Patient A” regarding Dr. Mah’s communication.

Specifically, Patient A reported that Dr. Mah had a meeting with Patient A in which concerns were expressed regarding Dr. Mah’s management of the patient’s contact lens care over the prior eight years. As a result of the meeting, Dr. Mah advised the patient that he would be in contact within a few days with a proposal to resolve the concerns. No follow-up to that meeting was made.

•Patient A also reported that Dr. Mah did not respond to subsequent messages and emails and he failed to provide Patient A with a copy of their clinical records after requesting and receiving payment for the copy.

•The College had these matters reviewed by an independent expert, Dr. B, O.D. With respect to allegation 3, it was Dr. B’s opinion that Dr. Mah’s conduct was unprofessional in the following particulars: 
a)Dr. Mah’s failure to follow up on his offer to contact Patient A after the June 9 meeting and his failure to return Patient A’s messages of June 16 and 18, 2008; and 
b)Dr. Mah’s failure to provide Patient A with a copy of the clinical records in a timely manner after demanding and receiving advance payment.

 

Findings:

Proceeding on the basis of the facts agreed upon, the Panel found Dr. Mah guilty of allegation 1 and 3, and agreed to the College’s request for permission to withdraw allegation 2.

 

Reasons for Findings:

Although the Panel expressed concerns regarding the weighing of the allegations, they ultimately decided that the facts contained in the Agreed Statement of Facts were adequate grounds for the Discipline Committee to find Dr. Mah guilty of professional misconduct with respect to allegations 1 and 3. With respect to allegations 3, in particular, which was described in the Notice of Hearing as conduct that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, the parties agreed that Dr. Mah’s conduct was unprofessional. Reasons for Penalty The Panel was presented with a Joint Submission on Penalty which was signed by Dr. Alex Mah and Counsel for the College dated April 13, 2010. As part of the presentation of the Joint Submission on Penalty, Defence Counsel filed two letters of support attesting to Dr. Mah’s excellent character and upstanding professional conduct. It was Defence Counsel’s submission that the letters testify that the unprofessional behaviour that prompted the complaint from patient A was out of character for Dr. Mah. Defence Counsel further submitted that Dr. Mah acknowledged that he handled the situation poorly and made errors with respect to his communications with Patient A. College Counsel agreed that Dr. Mah had been very cooperative in dealing with the matters at hand and there had been no prior record of misconduct. He also agreed that Dr. Mah was contrite in accepting responsibility for his actions. The Committee concluded from the submissions that the behaviour, which forms the basis of the findings, was out of character for Dr. Mah. Following consultiation with Independent Legal Counsel, the Panel was satisfied that their concerns did not pass the threshold to overturn the Joint Submission on Penalty. That is, the proposed penalty neither brings the administration of justice into disrepute nor is it not in the public interest. Given all the circumstances of this case, the Panel, although expressing some reservations regarding specific terms of document, accepted the proposed penalty contained in the Joint Submission on Penalty presented by the College and Dr. Mah as an appropriate sanction for this case. The principles of penalty that apply are denunciation of the conduct, and specific and general deterrence. The Panel believes the proposed penalty satisfies these principles.

 

Penalty:

The parties jointly submitted that the following is an appropriate penalty in the case:

  1. A reprimand.
  2. Dr. Mah’s billing practices shall by inspected by the College a total of three times during the eighteen month period following the date of the Discipline Committee’s Order in this matter. These inspections shall be at Dr. Mah’s cost which shall not exceed $750.00 per inspection.
  3. Dr. Mah shall attend the Jurisprudence Seminar offered by the College before the end of 2010. Dr. Mah must pass the course failing which he must repeat the course until he does pass.
  4. Dr. Mah shall pay the costs of this hearing in the amount of $1,000.00. 5)All of the terms of this penalty shall be recorded on the Register pursuant to s.23(2)11 of the RHPA, Procedural Code and be available to the public pursuant to s.23(5).

 

At the conclusion of the hearing, Dr. Mah waived his right to an appeal and the Panel administered the reprimand.