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Alberta Health Services criticized for ‘unlawful’ suspension of surgeon

A judge has issued a scathing indictment of Alberta Health Services’ treatment of one of the province’s most prominent heart surgeons, saying it effectively ignored due process in an attempt to force the surgeon’s retirement.

Dr. Dennis Modry suspended in ‘fundamentally flawed’ process

A judge has issued a scathing indictment of Alberta Health Services’ treatment of one of the province’s most prominent heart surgeons, saying it effectively ignored due process in an attempt to force the surgeon’s retirement.

“The conduct of AHS, I find, was deliberate (or negligent) unlawful conduct in exercising its public function, with an awareness of the conduct being unlawful and likely to injure Dr. (Dennis) Modry,” Alberta Court of Queen’s Bench Associate Chief Justice John Rooke wrote in a ruling issued earlier this month.

Dr. Dennis Modry, who is now in his mid-60s, is a pioneer of open-heart surgery in Alberta. (University of Alberta )
“On the evidence, there is also a possible finding of the tort of conspiracy,” Rooke ruled, although he found there was not a strong initial case to support this finding.

The judge ordered the immediate reinstatement of Modry’s surgical practice privileges and pay, dating back to Nov. 30, 2013, plus legal costs.

But AHS won a stay of Rooke’s order at the Alberta Court of Appeal. An appeal court judge ruled there were arguments to be made on both sides, but he narrowly favoured AHS because of the public interest.

“(Alberta Health Services) maintains that there are ‘serious, ongoing and unresolved concerns about Dr. Modry’s professionalism and skill,’ ” Court of Appeal Justice Russell Brown wrote.

Brown stayed Modry’s reinstatement pending another, more-detailed appeal before a three-judge panel of the same court. Alberta Health Services confirmed Modry remains suspended from surgery. The appeal is expected to be heard in late April.

Modry, who is now in his mid-60s, is a pioneer of open-heart surgery in Alberta. He performed the first heart transplant in Western Canada in 1985. At one time, he was head of cardiovascular and thoracic surgery at the University of Alberta Hospital in Edmonton.

But for months, Modry has been locked in a high-stakes legal battle with AHS over his ability to conduct surgery and get along with other medical staff.

Modry sued AHS and a group of senior administrators and physicians in April for more than $6 million. He alleges they conspired to restrict and eventually suspend his hospital privileges.

“Beginning in 2009, and continuing to the date of this statement of claim, some or all of the defendants acted in agreement or with common design to reduce or eliminate Dr. Modry’s surgical privileges at (University of Alberta Hospital) and force him to retire,” Modry alleges in his statement of claim.

Modry claims that in 2009 he was accused of poor clinical practice, which included concerns that his patients died more often than those of other surgeons. In 2013, he said, AHS staff produced false and misleading reports that showed his mortality and complication rates were too high. There was another review of his work in 2014.

The allegations have not been proven in court. In a statement of defence, AHS said reviews of Modry’s practice were done in good faith, after complaints about his surgical decisions and outcomes.

The incident that led to the legal dispute was a decision by Modry to cancel two surgeries on Aug. 30, 2013, just before he was to leave on a week-long holiday. Modry said he cancelled the surgeries because he was “upset upon receiving communications that morning regarding a significant loss he had suffered.”

Modry returned from holidays to find his surgical privileges had been suspended while his clinical practice was reviewed by a three-person committee. Modry agreed to withdraw from surgical practice, with the understanding he would be paid $20,000 a week until Dr. David Mador, the Zone Medical Director, made a decision about his further practice.

About six weeks later, in November 2013, Mador directed that issue be resolved through “consensual resolution,” a form of mediation, and ended the $20,000 a week payment to Modry.

$20,000 weekly payments

Rooke found Mador should not have terminated the payment because he had only deferred the issue to another process.

The judge also found that while Modry filed a response to Mador about the cancelled surgeries allegations, the response was never provided to the three-person review committee. Modry also was not provided with any of the documents the panel used to make its decision.

And although the review related - as far as Modry knew - only to the cancelled surgeries, the panel also reviewed information related to his surgical outcomes and his mortality rate.

“Indeed, later requests for data relied upon were also not provided (to Modry) even as late as May 2014,” Rooke wrote in his decision, adding later that even if this information was relevant to the review, “there would have been a duty on the part of the (committee) to so advise and provide data being relied upon, but Dr. Modry was not put on notice, and was not given the data or opportunity to address them before the report was made.”

Rooke said Mador had also “raised the issue of Dr. Modry's retirement, which was outside the scope of the (committee review), but consistent with Dr. Mador’s previous comments about the ‘end game,’ demonstrating that the matter had been pre-judged and that Dr. Modry could not get a fair and unbiased review from Mador.”

Alberta Health Services declined to comment as did lawyers for Modry.

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