Garcia, Yelian

 

On September 10, 2017, Dr. Garcia attended the long-term care facility, despite not being scheduled to work that day. He arrived at 8 am and was let into the nursing office, where the patient charts were located.

Dr. Garcia requested that a nurse, Nurse X, bring him Patient A’s chart from storage. He also requested blank progress notes. Nurse X brought these to him.

Dr. Garcia proceeded to alter Patient A’s chart, removing original chart entries and writing new progress notes for these dates. He removed and re-wrote notes for at least 16 encounters, dating back two years.

The altered progress notes were fabricated. For example:

- The text of the altered notes was different from the original notes. The altered notes were more extensive and included objective physical findings that were not present in the original notes. This information was not present anywhere else in the chart;

- For at least one encounter, Dr. Garcia created a chart entry for an entirely new date, for which no original entry existed. No encounter had, in fact, taken place on this date;

- Dr. Garcia also destroyed at least one original entry without creating a replacement note.

Dr. Garcia tore up the original chart entries and disposed of them in the trash can. After Dr. Garcia left the office on September 10, Nurse X retrieved the torn-up original notes from the trash and taped them back together.

On the same day, Dr. Garcia also created a fabricated encounter note for another patient, Patient B. This patient was not one of the patients whose charts had been requested by Dr. Garcia’s expert.

 

On September 12, 2017, counsel for Dr. Garcia emailed the expert to advise that Dr. Garcia had been able to obtain the chart for Patient A (which he had previously indicatedwas unavailable).

Dr. Garcia provided Patient A’s falsified chart to his expert through his legal counsel. He did not inform the expert that he had altered the chart before sending it to her. On the basis of this falsified chart, the expert prepared a report dated September 17, 2017. She concluded that Dr. Garcia had met the standard of practice of the profession in his care of Patient A.

Dr. Garcia’s penalty hearing commenced on October 10, 2017. The hearing was contested. Dr. Garcia called his expert to testify on his behalf, in support of his submission that the penalty imposed by the Discipline Committee should be less onerous than the penalty sought by the College.

 

 

On October 11, 2017, midway through the penalty hearing, Nurse X contacted the College and advised that she had discovered Dr. Garcia tampering with patient charts. As a result of the information Nurse X provided about Patient A’s chart, the parties agreed that the penalty hearing should be adjourned.

The penalty hearing resumed on January 28, 2018. On that date, counsel for Dr. Garcia withdrew Dr. Chapman’s evidence and requested that the Committee not rely on it. The parties submitted a joint proposal on penalty, whereby Dr. Garcia accepted an 8-month suspension.

FACTS ON PENALTY

On February 15, 2017, the Committee previously found that Dr. Garcia had engaged in professional misconduct, in that he had failed to maintain the standard of practice of the profession and engaged in an act or omission that, having regard to all the circumstances, would reasonably be considered by members as disgraceful, dishonourable or unprofessional. On January 28, 2018, the Discipline Committee imposed a penalty including an eight-month suspension and terms, conditions or limitations when Dr. Garcia returned to practice.

Following his suspension, which took effect January 28, 2018, Dr. Garcia did not return to practice. On December 5, 2018, Dr. Garcia resigned his certificate of registration with the College.

DISPOSITION

On January 24, 2020, the Discipline Committee ordered that:

- The Registrar revoke Dr. Garcia's certificate of registration effective immediately.

- Dr. Garcia pay costs to the College in the amount $6,000.00 within 30 days of the date of the Order.

- Dr. Garcia attend before the panel to be reprimanded.

At the conclusion of the hearing, Dr. Garcia (via counsel) waived his right to an appeal under subsection 70(1) of the Code. The Committee administered the public reprimand in the absence of Dr. Garcia, who did not attend the hearing.

 

On February 15, 2017, the Discipline Committee found that Dr. Yelian Garcia committed an act of professional misconduct in that: he has failed to maintain the standard of practice of the profession; and, he has 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.

Failing to Maintain the Standard of Practice

After graduating from medical school and completing a residency program through McMaster University, Dr. Garcia practised under a restricted certificate of registration between August 18, 2011 and January 12, 2012. During this time, he practised family medicine under the supervision of a physician at Wellington Medical Centre in Aurora, and under the supervision of a second physician at Oak Ridges Medical and Urgent Care Centre in Richmond Hill.

Dr. Garcia obtained his certificate of registration authorizing independent practice in January of 2012. Dr. Garcia continued to provide family medicine and walk-in services at Wellington Medical Centre and urgent care services at Oak Ridges Urgent Care Centre. He also began providing urgent care and walk-in services at One Care Medical Clinic in Scarborough and Woodbridge Urgent Care Centre in Woodbridge, as well as providing medical care to patients at three long-term/residential care facilities.

According to Dr. Garcia, he was seeing on average 10 to 13 patients per hour at the Wellington Medical Centre in 2012. Because of this, Dr. Garcia would chart pertinent information during patient encounters and complete 50 to 70% of his charts at the end of the day. Dr. Garcia tried to be as efficient as possible while ensuring an evidence-based practice. He conducted some patient examinations and assessments very quickly in 2012.

There was a pharmacy located in the same premises as the Wellington Medical Centre. In the summer of 2012, a pharmacist at the pharmacy expressed concern about Dr. Garcia’s narcotic prescribing practices to both Dr. Garcia and the physician who had supervised him at Wellington Medical Centre (“the supervising physician”).

In the late summer and fall of 2012, the supervising physician reviewed the charts for most of the approximately dozen patients to whom Dr. Garcia was prescribing narcotics or opioids at the Wellington Medical Centre, met with several of these patients, along with Dr. Garcia, and conducted an assessment of each patient’s pain and the appropriateness of the narcotics prescriptions given by Dr. Garcia. Following this process, several patients seen together by the supervising physician and Dr. Garcia were referred to a pain clinic, specialist or detoxification program.

In May 2013, the supervising physician contacted the College to report his concerns about the medical care provided by Dr. Garcia.

Following receipt of this information, the College began an investigation into Dr. Garcia’s practice. The College obtained medical records with respect to 36 patients. Review by a medical inspector retained by the College concluded that Dr. Garcia provided very fine medical care to
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some patients and that Dr. Garcia failed to maintain the standard of practice of the profession in his care of other patients.

Dr. Garcia acknowledged during the College investigation that he should slow down in terms of the manner in which he assessed and communicated with patients. Dr. Garcia also stated that his practice had changed since 2012 and early 2013, and that he had tried to slow down his patient interactions and communicate more effectively with patients. Dr. Garcia acknowledged during the College investigation that he was “duped” by a couple of patients who were engaged in drug- seeking behaviour and that he was too trusting of patients who were seeking narcotics for pain medication. At that time, Dr. Garcia also stated that he had learned to be less trusting of patients and that he no longer had patients with chronic pain in his family practice.

Dr. Garcia failed to maintain the standard of practice of the profession with respect to eleven patients. The deficiencies noted included:

- not obtaining an adequate history or doing a proper physical examination of a patient who complained of “chronic pain”;
- for several patients, not recording any physical examination and not recording details about the source or type of pain they experienced;
- prescribing narcotics to pain patients without taking a proper and full history and without
doing any physical examination;
- early renewal of narcotic prescriptions without a notation in the chart to explain why the
medication was renewed early;
- regarding one patient who was given a typhoid immunization, Dr. Garcia made no notes of this appointment in the chart and no record was kept of the drug identification number or lot number for the vaccine given.
-regarding one patient, Dr. Garcia’s charting was moderately below standard. Dr. Garcia’s typed note for a visit incorrectly indicated he gave the patient a typhoid shot, although his handwritten note correctly indicated that he gave patient N an allergy shot on that date.

The medical inspector expressed concern that Dr. Garcia’s general patient population was put at risk because of his willingness to prescribe narcotics and repeated inability to detect the misuse of opioid medication.

Disgraceful, Dishonourable or Unprofessional Conduct

The Committee also found that Dr. Garcia has 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.

First, the Committee found that Dr. Garcia prescribed medications and provided a medical service to Ms. A, a woman who was not a patient and with whom he had a personal and romantic relationship. Dr. Garcia prescribed medications to Ms. A on three occasions. On one of those occasions, he prescribed an IUD and referred Ms. A to a gynecologist to perform the IUD insertion. There was no record of an assessment, including a history and physical examination, prior to providing any of the prescriptions. The policy statement on Treating Self and Family
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Members clearly states when it is permissible to treat a family member or another individual whom the physician has a personal or emotional involvement. As stated in the Policy: “Physicians should not treat either themselves or family members, except for a minor condition or in an emergency situation and when another qualified healthcare professional is not readily available.” These conditions were not present on the occasions when Dr. Garcia chose to prescribe medications, an IUD and provide a medical service to Ms. A. When a physician treats someone with whom they have a personal/emotional relationship, there is a risk that the relationship will affect the doctor’s ability to provide quality care. Further, as Ms. A’s romantic partner, Dr. Garcia placed himself in a conflict of interest by providing Ms. A with a prescription and a referral for insertion of an IUD for birth control.

Second, during Ms. A’s hospitalization, Dr. Garcia used his professional status as a physician in an attempt to persuade or pressure a nurse to provide confidential information in regard to Ms. A without her consent, despite the fact that he, as a physician, had full knowledge that he was not entitled to that information.

Disposition

On January 24, 2018 the Committee ordered that:

1. Dr. Garcia appear before the Committee to be reprimanded.
2. the Registrar suspend Dr. Garcia’s Certificate of Registration for a period
of eight (8) months, to commence at 12:01 a.m. on February 7, 2018.
3. the Registrar impose the following terms, conditions and limitations on
Dr. Garcia’s Certificate of Registration:

Restriction
(a) Dr. Garcia shall have clinical interactions with no more than a total of forty-eight (48) patients per day, at a rate of no more than six (6) patients per hour within each hour;
Patient Log
(b) At each of his Practice Locations, Dr. Garcia shall maintain an up-to-date daily log of every patient with whom he has a clinical interaction, which shall include the patient’s name, the date, and the hour within which the clinical interaction occurred (“Patient Log”). Dr. Garcia shall maintain the original Patient Log and shall send a copy to the College at the end of every calendar month;
(c) At its sole discretion, the College may require Dr. Garcia to implement other measures to ensure the accuracy of the Patient Log, including but not limited to requiring him to have the Patient Log reviewed and/or approved by a person or persons approved by the College;
Prescribing Log
(d) Dr. Garcia shall keep a log of all prescriptions (the “Prescribing Log”) for:
(i) Narcotic Drugs (from the Narcotic Control Regulations made under the Controlled Drugs and Substances Act, S.C., 1996, c. 19, as amended from time to time);
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(ii) Narcotic Preparations (from the Narcotic Control Regulations made under the Controlled Drugs and Substances Act, S.C., 1996, c. 19, as amended from time to time);
(iii) Controlled Drugs (from Part G of the Food and Drug Regulations under the Food and Drugs Act, S.C., 1985, c. F-27, as amended from time to time);
(iv) Benzodiazepines and Other Targeted Substances (from the Benzodiazepines and Other Targeted Substances Regulations made under the Controlled Drugs and Substances Act., S.C., 1996, c. 19, as amended from time to time); (A current summary of the above-named drugs [from Appendix I to the Compendium of Pharmaceuticals and Specialties] is attached hereto as Schedule “A”; and the current regulatory lists are attached hereto as Schedule “B”)
(v) All other Monitored Drugs (as defined under the Narcotics Safety and Awareness Act, 2010, S.O. 2010, c. 22 as noted in Schedule “C” and as amended from time to time);
(e) The Prescribing Log shall be in the form set out at Schedule “D”, which will include at least the following information:
(i) the date of the prescription;
(ii) the name of the patient with chart / file number;
(iii) the medication, dose, direction, number of tablets to be dispensed and frequency (if applicable);
(iv) the clinical indication for use;
(v) whether it is a new prescription; and
(vi) physician initials.
(f) Dr. Garcia shall keep a copy of all prescriptions written for all Narcotic Drugs, Narcotic Preparations, Controlled Drugs, Benzodiazepines/Other Targeted Substances and all other Monitored Drugs, in the corresponding patient chart. Instruction in Medical Ethics
(g) At his own expense, Dr. Garcia shall participate in and successfully complete individualized instruction in ethics approved by the College, at the instructor’s earliest availability. Dr. Garcia will provide proof of successful completion within three (3) weeks of completing the instruction. The instruction will involve one-on- one sessions with a College-approved instructor, incorporating principles of guided reflection, tailored feedback, and other modalities customized to the specific needs of Dr. Garcia as assessed by the instructor. The instructor will report to the College regarding Dr. Garcia’s progress and compliance.
Instruction in Maintaining Boundaries
(h) At his own expense, Dr. Garcia shall participate in and successfully complete the next available course on “Understanding Boundaries and Managing the Risks Inherent in the Doctor-Patient Relationship” offered by Western University, or an equivalent program acceptable to the College, and shall forthwith thereafter provide proof of completion thereof to the College.
Clinical Supervision
(i) Prior to resuming practice following the suspension of his certificate of registration described above in paragraph 2, Dr. Garcia shall retain, at his own expense, a clinical
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supervisor or supervisors (the “Clinical Supervisor”) acceptable to the College, who will sign an undertaking in the form attached hereto as Schedule “E”;
(j) For a period of twelve (12) months, commencing as of the date Dr. Garcia resumes practice following the suspension of his certificate of registration described above in paragraph 2, Dr. Garcia may practice only under the supervision of the Clinical Supervisor (“Clinical Supervision”). Clinical Supervision of Dr. Garcia’s practice shall contain the following elements:
Chart Review:
i. All charts reviewed shall be independently selected by the Clinical Supervisor without the participation of Dr. Garcia.
Phase 1 of Chart Review
ii. For a minimum of two (2) months, Dr. Garcia and the Clinical Supervisor will meet at least once every week to discuss the Clinical Supervisor’s review of the elements set out in (v), below.
iii. After a minimum of two (2) months of Phase 1 of Chart Review, if the Clinical Supervisor is satisfied that Dr. Garcia has the necessary knowledge, skills and judgment to practice in a less highly supervised environment, the Clinical Supervisor may recommend to the College that the chart review component of supervision be reduced.
Phase 2 of Chart Review
iv. Upon the recommendation of the Clinical Supervisor and approval of the College, the chart review component of clinical supervision will be reduced. Dr. Garcia and the Clinical Supervisor will continue to meet at least once every month to discuss the Clinical Supervisor’s review of the elements set out in (v) below.
Elements of Chart Review
v. At each meeting described in (ii) and (iv) above, Dr. Garcia and the Clinical Supervisor will discuss the Clinical Supervisor’s review of:
(a) The Prescribing Log;
(b) 20 charts, selected as follows:
? 5 charts selected from Dr. Garcia’s clinic practice;
? 5 charts selected from Dr. Garcia’s long-term care/retirement home practice; and
? 10 charts of patients to whom Dr. Garcia has prescribed Narcotic Drugs, Narcotic Preparations, Controlled Drugs, Benzodiazepines and Other Targeted Substances and All other Monitored Drugs since the Clinical Supervisor’s prior review; or
? If there are fewer than 10 patients listed in the Prescribing Log to whom Dr. Garcia has prescribed Narcotic Drugs, Narcotic Preparations, Controlled Drugs, Benzodiazepines and Other Targeted Substances and All other Monitored Drugs since the Clinical Supervisor’s prior review, then the charts of all patients listed in the Prescribing Log and additional charts selected from both Dr. Garcia’s clinic and long-term care/retirement home practices, resulting in a total of 10 charts.
(c) The chart of every patient to whom Dr. Garcia has issued a new prescription for a Narcotic Drug, Narcotic Preparation, Controlled
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Drug, Benzodiazepine and Other Targeted Substance or other
Monitored Drug since the Supervisor’s prior review.
Direct Observation
Phase 1 of Direct Observation
vi. For a minimum of one (1) month, the Clinical Supervisor shall directly observe Dr. Garcia in practice for ½ day (3.5 hours) at least once per week;
vii. During Phase 1 of Direct Observation, the Clinical Supervisor’s observation of Dr. Garcia’s practice shall rotate between Dr. Garcia’s clinical practice and his long-term care/retirement home practice;
viii. For greater clarity, during Phase 1 of Direct Observation, the Clinical Supervisor shall observe Dr. Garcia in practice at least twice in his clinic setting and at least twice in his long-term care/retirement home practice;
ix. After a minimum of one (1) month of Phase 1 of Direct Observation, if the Clinical Supervisor is satisfied that Dr. Garcia has the necessary knowledge, skills and judgment to practice in a less highly supervised environment, the Clinical Supervisor may recommend to the College that the direct observation component of supervision be reduced;
Phase 2 of Direct Observation
x. Upon the recommendation of the Clinical Supervisor and approval of the College, the direct observation component of Clinical Supervision will be reduced and will take place on the following terms: For a minimum of two (2) months, the Clinical Supervisor shall directly observe Dr. Garcia in practice for ½ day (3.5 hours) at least once per month in Dr. Garcia’s clinic practice and at least once per month in his long-term care/retirement home practice;
xi. After a minimum of two (2) months of Phase 2 of Direct Observation, if the Clinical Supervisor is satisfied that Dr. Garcia has the necessary knowledge, skills and judgment to practice in a less highly supervised environment, the Clinical Supervisor may recommend to the College that the direct observation component of supervision be reduced;
Phase 3 of Direct Observation
xii. Upon the recommendation of the Clinical Supervisor and approval of the College, the direct observation component of Clinical Supervision will be reduced and will take place on the following terms: For the remainder of the Clinical Supervision, the Clinical Supervisor shall directly observe Dr. Garcia in practice for ½ day (3.5 hours) at least once every three (3) months in Dr. Garcia’s clinic practice and at least once every three (3) months in his long- term care/retirement home practice;
Meetings
xiii. As set out above in (ii) and (iv), Dr. Garcia and the Clinical Supervisor will meet at least once every week, for a minimum of two (2) months, and at least once every month thereafter. In addition to the elements of chart review described above, meetings will include the following:
(a) Prior to meeting with the Clinical Supervisor, Dr. Garcia shall provide the
Clinical Supervisor with the audit trail for each patient whose chart is to be
reviewed at that meeting, if the chart is maintained in an Electronic
Medical Record;
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(b) The Clinical Supervisor shall discuss with Dr. Garcia any concerns the Supervisor may have arising from the direct observations or review of charts, Prescribing Log or audit trail;
(c) The Clinical Supervisor shall make recommendations to Dr. Garcia for practice improvements and shall follow up on same;
(d) The Clinical Supervisor shall make recommendations to Dr. Garcia for ongoing professional development and inquire of Dr. Garcia to determine compliance with same;
(e) Dr. Garcia shall review and discuss with the Clinical Supervisor the educational resources and College policies set out below in section (k); and
(f) Any other activities which the Clinical Supervisor deems necessary to Dr. Garcia’s Clinical Supervision.
Reporting
xiv. The Clinical Supervisor will keep a log of all patient charts reviewed along with
patient identifiers; and
xv. The Clinical Supervisor will provide reports to the College:
(a) At least once every two (2) weeks for the first two (2) months;
(b) If the Clinical Supervisor so recommends and subject to the approval of the College, at least once every month thereafter; or
(c) More frequently if the Clinical Supervisor has concerns about Dr. Garcia’s standard of practice or conduct.
(k) Dr. Garcia will review and discuss with his Supervisor the following resources:
i. CPSO Policy “Prescribing Drugs”: http://www.cpso.on.ca/Policies -Publications/Policy/Prescribing-Drugs;
ii. 2017 Canadian Guideline for Opioids for Chronic Non-Cancer Pain: http://nationalpaincentre.mcmaster.ca/guidelines.html;
iii. CMPA advice regarding preventing the misuse of opioids: acpm.ca/en/advice-publications/browse-articles/2015/preventing-the-misuse-of-opioids;
iv. the Centre for Effective Practice Management of Chronic Non-Cancer Pain
Tool: https://thewellhealth.ca/cncp
v. CPSO Policy “Medical Records”: http://www.cpso.on.ca/Policies-
Publications/Policy/Medical-Records;
vi. CPSO Policy “Maintaining Appropriate Boundaries”:
http://www.cpso.on.ca/Policies-Publications/Policy/Maintaining-Appropriate-
Boundaries-and-Preventing
(l) Dr. Garcia shall abide by the recommendations of the Clinical Supervisor;
(m) If a Clinical Supervisor who has given an undertaking as set out in Schedule “E” to this Order is unable or unwilling to continue to fulfill its terms, Dr. Garcia shall, within twenty (20) days of receiving notice of same, obtain an executed undertaking in the same form from a person who is acceptable to the College and ensure that it is delivered to the College within that time;
(n) If Dr. Garcia is unable to obtain a Clinical Supervisor in accordance with this Order, he shall cease to practice until such time as he has done so;
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(o) Dr. Garcia shall consent to the disclosure by his Clinical Supervisor to the College, and by the College to his Clinical Supervisor, of all information the Clinical Supervisor or the College deems necessary or desirable in order to fulfill the Clinical Supervisor’s undertaking and Dr. Garcia’s compliance with this Order;
(p) Dr. Garcia shall consent to the Clinical Supervisor and/or the College making inquiries of any staff/employees at any of his practice locations in relation to any of the terms of this Order and any aspect of the Clinical Supervision, and shall consent to staff/employees providing information and/or documentation to the Clinical Supervisor and the College, including but not limited to information regarding Dr. Garcia’s charting practices;
Assessment
(q) Approximately twelve (12) months after the completion of the period of supervision as set out above, Dr. Garcia shall undergo an assessment of his practice (the “Assessment”) by a College-appointed assessor (the “Assessor(s)”). The Assessor(s) shall report the results of the Assessment to the College;
(r) The Assessment shall include both Dr. Garcia’s clinic and long-term care/retirement home practices. The Assessment may include chart reviews, direct observation of Dr. Garcia’s care, interviews with colleagues and co-workers, feedback from patients and any other tools deemed necessary by the College. Dr. Garcia shall abide by all recommendations made by the Assessor(s), and the results of the Assessment will be reported to the College and may form the basis of further action by the College;
(s) Dr. Garcia shall consent to the disclosure to the Assessor(s) of the reports of the Clinical Supervisor arising from the supervision, and shall consent to the sharing of all information between the Clinical Supervisor, the Assessor(s) and the College, as the College deems necessary or desirable;
Other
(t) Dr. Garcia shall comply with the College Policy on Practice Management Considerations for Physicians Who Cease to Practise, Take an Extended Leave of Absence or Close Their Practice Due to Relocation in respect of his period of suspension, a copy of which forms Schedule “F” to this Order;
(u) Dr. Garcia shall inform the College of each and every location where he practices, in
any jurisdiction (his “Practice Location(s)”) within fifteen (15) days of this Order and again prior to resuming practice following the suspension of his certificate of registration described above in paragraph 2, and shall inform the College of any and all new Practice Locations within fifteen (15) days of commencing practice at that location, until the report of the Assessment has been provided to the College;
(v) Dr. Garcia shall co-operate unannounced inspections of his Practice Location(s) and patient charts and to any other activity the College deems necessary for the purpose of monitoring and enforcing his compliance with the terms of this Order and shall provide his irrevocable consent to the College to make appropriate enquiries of any person or institution who may have relevant information for the purposes of monitoring and enforcing his compliance with the terms of this Order;
(w) Dr. Garcia shall consent to the College making appropriate enquiries of the Ontario Health Insurance Plan, the Narcotics Monitoring System and/or any person who or institution that may have relevant information, in order for the College to monitor his
compliance with this Order;
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(x) Dr. Garcia shall be responsible for any and all costs associated with implementing the terms of this Order.

On July 11, 2018 the Committee ordered that:

- Dr. Garcia pay to the College costs in the amount of $49,000.00 within 45 days of the date of this Order.