Doctor guilty of misconduct after refusing to hand over unredacted patient records regarding ivermectin and mask exemptions

An Ontario physician has been found guilty of professional misconduct after refusing to hand over patient records to college investigators looking into her COVID-19 medical exemptions and ivermectin prescriptions.On March 5, Dr. Sonja Sophia Kustka, a family physician in Toronto, was found by the Ontario Physicians and Surgeons Discipline Tribunal to have failed in her duty to co-operate.The case stems from a series of complaints to the College of Physicians and Surgeons of Ontario (CPSO) that were submitted by members of the public in late 2021 over Dr. Kustka’s COVID-19 conduct.One complaint the college received at the time was from a Girl Guide leader who raised concerns that Dr. Kustka had potentially issued “illegitimate” mask exemptions for two sisters who had registered with the Girl Guides. The sisters had not reported any medical condition when registering with the program and the exemption letter did not provide any medical reason for the exemptions.At around the same time, the college received another complaint from the daughter of a deceased patient who went to Dr. Kustka after testing positive for COVID-19. Dr. Kustka had given her a prescription for ivermectin—an antiparasitic drug that was promoted as a COVID-19 treatment by conspiracy theorists.Read: Ivermectin—whether formulated for humans or horses—is not a treatment for COVID-19Following these complaints, the college asked Dr. Kustka in February 2022 to provide a list of all patients in chart form who had received COVID-19-related medical exemptions or ivermectin prescription and a complete copy of each patient’s medical record.However, Dr. Kustka refused to send in the requested documents unless she could redact the patient names and identifying information, to which the college said the records would need to be provided with no redactions.“Based primarily on her concern for her patients' privacy and privilege rights, Dr. Kustka will not be providing patient names, contact information or files in respect of masking exemptions, ivermectin prescription or any other COVID exemptions (without admitting that any exemptions or prescriptions were issued),” her counsel told the college.In May 2022, the college had imposed practice conditions on Dr. Kustka, prohibiting her from prescribing ivermectin and signing off on any medical exemptions in relation to COVID-19 mask requirements. The practice conditions also require Dr. Kustka to consent to reviews of her OHIP billings, send biweekly patient logs to the college and submit to unannounced inspections of her practice by college investigators. Dr. Kustka told the college she would fully comply with the prohibitions regarding mask exemptions and ivermectin prescriptions but refused to comply with the release of OHIP billings and only provided redacted anonymized patient logs.“The registrant continued to send biweekly anonymized patient logs to the college. Each time, the college responded by advising that anonymized patient logs were not acceptable and that the registrant was required to comply with the interim order,” a portion of the case background from the college reads. In May 2023, the college’s Inquiries, Complaints and Reports Committee issued a caution against Dr. Kustka over her ivermectin prescriptions. The college retained two independent assessors, who concluded that she “demonstrated a lack of knowledge, skill, and judgement by prescribing ivermectin to treat COVID-19 in a known high-risk patient” and noted that the drug lacked clinical efficacy in treating COVID-19. The committee also expressed concerns over her failure to “adequately document her assessment, decision-making and consent discussions.”Taking the college to courtDr. Kustka, as well as 90 of her patients, subsequently took the college to court, challenging the lawfulness of the college’s demand for the patient records and arguing that the college’s demands violate the Canadian Charter of Rights and Freedoms, specifically her right not to be subject to unreasonable search and seizure. Read: CPSA vows to get tough with doctors flouting COVID-19 exemption rulesHowever, this court challenge was dismissed in April 2023, with the judges ruling that the college had “sufficient information” to be “reasonably concerned that Dr. Kustka was exposing patients to harm.” The judges also said the college had “good reason to impose monitoring obligations,” pointing to her previous failure to co-operate with the college’s investigation.“Dr. Kustka had an obligation under s. 76(3.1) of the [Health Professions Procedural Code] to ‘co-operate fully’ with the CPSO’s investigation. Her refusal to do so has escalated this litigation and delayed the proceedings before the CPSO. It was reasonable for the ICRC to require ongoing monitoring conditions given its concerns about Dr. Kustka’s governability,” the judges said in their ruling. The judges also rejected the argument from the patients that the college compelling the patient records violates their right to privacy and their Charter right to bodily autonomy.“Their claims under ss. 7 and 8 of the Charter are fatally flawed because patients have no reasonable expectation of privacy against a medical regulator accessing patient records and because the interim order does not affect the patient applicants’ choice of medical treatment or bodily autonomy,” the judges said.Ultimately, Dr. Kustka was ordered to pay the college nearly $25,000 in costs, while the patient applicants were ordered to pay $4,249.Dr. Kustka continues her refusal to provide patient recordsEven after the court ruling, Dr. Kustka continued to refuse to hand over the unredacted records, prompting a hearing at the Ontario Physicians and Surgeons Discipline Tribunal.But before the tribunal hearing kicked off, Dr. Kustka attempted to motion for a stay of proceedings, arguing that the college’s demands were unlawful. Dr. Kustka asserted that that the college’s demands were “based on an allegation of a failure to comply with non-binding policy” and that the grounds for investigation did not meet the standard of “reasonable and probable grounds.” Dr. Kustka also argued that physician-patient privilege or the patient privacy rights cannot be overridden by the college’s search powers.Read: CPSO imposes restrictions on doctor accused of spreading COVID misinformationThat motion was not granted, and the motion panel rejected all of Dr. Kustka’s arguments. The panel noted that registrants are “required to respond to their regulator’s request for records of their work in the regulated practice of medicine” and that the scope of the college’s investigation was “clearly defined.”At the tribunal hearing on Dec. 19 and 20, Dr. Kustka maintained that the college’s demands were unlawful and brought forward the same arguments. In response, the college told her she cannot relitigate those issues.“We are satisfied that the issue of the lawfulness of the investigation and associated demand for information has been determined and the registrant cannot seek to relitigate this before the hearing panel,” the tribunal wrote.Dr. Kustka also tried to argue that even if the college’s demands were lawful, her refusal to comply shouldn’t be considered misconduct if it was based on a “sincerely held belief about the law.” However, the tribunal wasn’t convinced, saying it would bring “harm to the college’s mandate of protecting the public” if a registrant was allowed to keep stalling an investigation by bringing forward unsuccessful legal challenges.“We find that she has failed in her statutory duty to cooperate with the investigation, failed to respond appropriately or within a reasonable time to a written inquiry from the College and, in failing to provide information required under an interim order, contravened a term, condition or limitation on her certificate of registration. Her actions amount to conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional,” the tribunal wrote.Another hearing is scheduled to be held on April 30 to determine penalties.

Doctor guilty of misconduct after refusing to hand over unredacted patient records regarding ivermectin and mask exemptions

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