Give us your patient records or lose your license, tribunal tells doctor under investigation for COVID-19 conduct

The Ontario Physicians and Surgeons Discipline Tribunal has issued an ultimatum to a doctor accused of improper COVID-19 conduct, warning her that she will lose her license if she refuses to hand over the patient records that the college requested.In a decision from the tribunal released Tuesday, Dr. Sonja Sophia Kustka has been issued a suspension for a minimum of four months, or until she agrees to provide the college with the requested patient records.Dr. Kustka will have her certificate of registration revoked if she still hasn’t handed over the records six months after the initial four-month suspension period, and if all of her appeal rights have been exhausted. “The registrant’s professional misconduct still continues because of the legal position she has chosen to take. We do not find that this establishes she is unlikely to cooperate with the college in the future. We have no reason to doubt her stated intention to cooperate if she is ultimately unsuccessful in her legal challenge,” the tribunal said in its decision.In late 2021, Dr. Kustka had been accused of issuing illegitimate exemptions for COVID-19 mask mandates and inappropriately prescribing ivermectin to treat the virus. Investigators at the College of Physicians and Surgeons of Ontario asked her to turn over a list of all patients who had received COVID-19-related medical exemptions or ivermectin prescriptions and a complete copy of each patient’s medical record. The college also placed practice conditions on her, requiring her to send biweekly patient logs to the college and prohibiting her from prescribing ivermectin and signing off on any medical exemptions in relation to COVID-19 mask requirements.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.Subsequently, Dr. Kustka and 90 of her patients 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. That court challenge was dismissed in April 2023, with Dr. Kustka being ordered to pay the college nearly $25,000 in costs.Even after the court ruling, Dr. Kustka continued to refuse to hand over the unredacted records. In March, she was found guilty of misconduct by the tribunal after a hearing was held to determine the merits of the allegations.Read: Doctor guilty of misconduct after refusing to hand over unredacted patient records regarding ivermectin and mask exemptions“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 said at the time.The following month, the tribunal held another hearing to determine penalties. During this hearing, Dr. Kustka argued that an appropriate penalty should be a reprimand and a fine. She argued that a suspension or revocation of her license would negatively impact her patients, especially given the ongoing shortage of family physicians. The tribunal, however, disagreed.“We do not agree that considerations of doctor shortage should lead us to avoid imposing a suspension. Suspension of a certificate of registration is one of a handful of measures available to the tribunal to sanction misconduct and is an important and common tool used in advancing the goals of a penalty order,” the tribunal wrote in its decision.Dr. Kustka also argued that such penalties would damage the reputation of the profession, the college and the tribunal and presented several letters from patients and fellow doctors written in her support, but the tribunal wasn’t swayed.“It is not apparent whether these letter-writers are aware of the registrant’s legal obligation to cooperate fully with the college’s investigations or the stringent statutory duty of confidentiality that governs the college and its employees. In any event, however strongly the letter-writers hold their views, it does not lead us to impose a lesser penalty,” said the tribunal.In addition to the suspension, Dr. Kustka has also been ordered to pay $39,295 to cover the costs of the hearings and her court challenge.

Give us your patient records or lose your license, tribunal tells doctor under investigation for COVID-19 conduct

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