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Medical Law - Hospital Privileges. Rogelstad v. Middlesex Health Alliance
In Rogelstad v. Middlesex Health Alliance (Ont Divisional Ct, 2025) the Divisional Court dismissed a doctor's appeal, here against an HPARB ruling that "upheld the suspension of his privileges and revocation of his hospital appointment on the basis that he failed to vaccinate against COVID-19 in compliance with the Middlesex Hospital Alliance’s mandatory vaccination policy".
Here the court illustrates local hospital-level steps taken in a COVID-related revocation of hospital privileges:[11] The POC unanimously supported a mandatory vaccination policy which was adopted by the MAC. The policy required everyone at the Hospital, including Dr. Rogelstad, to be fully vaccinated or to have a valid exemption. The policy stipulated that non-compliance could result in suspension or loss of privileges.
[12] Following announcement of the policy, Dr. Rogelstad wrote to the Hospital’s Chief of Staff indicating that he did not intend to receive the vaccination based on his view that it did not prevent transmission of the COVID-19 virus, and, in fact, increased the risk of infection for certain individuals. In response, the Chief advised him that his privileges would be suspended if he did not comply by November 29, 2021.
[13] Dr. Rogelstad failed to meet this deadline, and on November 30, 2021, he was notified that his privileges were suspended pursuant to Article 4.1(a) of the By-Laws. He was also provided notice of a MAC meeting on December 3, 2021 to consider making recommendations to the Hospital Board regarding the revocation of his appointment.
Medical Advisory Committee Recommendations
[14] Following its meetings held on December 3, 2021 and January 12, 2022, the MAC recommended that Dr. Rogelstad’s privileges continue to be suspended and that if he did not provide full proof of vaccination by January 31, 2022, his appointment at the Hospital would be revoked. Following the MAC recommendations, he requested a hearing before the Hospital’s Board of Directors.
MHA Board of Directors Decision – April 25, 2022
[15] The Hospital Board released its decision confirming the recommendations of the MAC on April 25, 2022. In reaching this conclusion, the Board relied on evidence provided by employees in the Hospital’s senior leadership, including its Chief of Staff, Chief of Medicine, and its Infection Prevention and Control Specialist, who testified in support of the mandatory vaccination policy and explained why it was adopted.
[16] The Hospital Board also heard from one expert witness, Dr. Dick Zoutman, who it qualified as a specialist in infectious disease. He testified that it was reasonable for the Hospital to require vaccination due to its high-risk patient population, noting that unvaccinated people have a higher likelihood of contracting and transmitting COVID-19. He also discussed various clinical studies demonstrating that the vaccines were safe for almost all demographics. On cross-examination, Dr. Zoutman conceded that he was not involved with the Hospital and was not familiar with its layout or the specific measures adopted there. He also conceded that he was “unaware of any evidence that anyone in particular will be safer if Dr. Rogelstad gets vaccinated”.
[17] Dr. Rogelstad challenged Dr. Zoutman’s evidence and testified that the Policy was out of step with current guidance from experts in the field. He characterized Dr. Zoutman’s evidence as “faulty and generalized”, especially with respect to the risks associated with the vaccine. He led evidence suggesting that anaphylaxis responses to the vaccine have been underreported and that there were further risks of myocarditis and pericarditis as well.
[18] The Hospital Board ultimately concluded that the mandatory Policy was reasonable, given the Hospital’s duty to provide a safe environment for its patients. It also referenced Directive #6 from Ontario’s Chief Medical Officer of Health, which required hospitals to implement vaccination policies and expressly permitted them to impose mandatory policies subject to certain exemptions.
[19] Given the reasonableness of the Policy, it further determined that permitting Dr. Rogelstad to continue practice would violate the By-Laws and Professional Staff Rules. On this basis, it confirmed that the suspension of his privileges and revocation of his hospital appointment would continue unless he provided proof of vaccination.
[20] Following the decision of the Hospital Board, Dr. Rogelstad requested a hearing before HPARB pursuant to section 41(1)(d) of the PHA.
....
[38] As noted in the Decision, Dr. Rogelstad has a statutory right to reapply for privileges now or in the future and that is the proper course to follow if he wishes to challenge the current reasonableness of the Policy. It is not the role of HPARB or this Court to assume primary jurisdiction and decide whether privileges ought to be regranted now, in 2025. The issue this Court must determine is whether HPARB committed any palpable and overriding error or error of law in deciding to confirm the 2022 decision of the Hospital Board. At paras 21-29 the court reviews the HPARB hearing, reasoning and conclusions.
. Rogelstad v. Middlesex Health Alliance
In Rogelstad v. Middlesex Health Alliance (Ont Divisional Ct, 2025) the Divisional Court dismissed a doctor's appeal, here against an HPARB ruling that "upheld the suspension of his privileges and revocation of his hospital appointment on the basis that he failed to vaccinate against COVID-19 in compliance with the Middlesex Hospital Alliance’s mandatory vaccination policy".
Here the court sets out statutory provisions and one hospital's related by-laws regarding hospital privileges suspension and revocation:Statutory Background
[4] Under the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”), a hospital’s board of directors appoints physicians as members of their medical staff and may revoke or suspend these appointments pursuant to a recommendation of the Hospital’s Medical Advisory Committee (“MAC”) and the process set out in its By-laws.
Statutory Background
[5] The procedures for suspension and revocation of staff privileges at MHA are set out in Articles 3 and 4 of its Professional Staff By-Laws, dated May 30, 2012 (the “By-Laws”). Articles 3.1(a) and 4 set out the grounds that may give rise to mid-term action to suspend or revoke:ARTICLE 3. SUSPENSION AND REVOCATION OF PRIVILEGES
3.1 Mid-Term Action With Procedural Guidelines
(a) Mid-term action may be initiated wherever the Professional Staff member is alleged to have engaged in, made or exhibited acts, statements, demeanour or professional conduct, either within or outside of the Hospitals, and the same:
(i) exposes, or is reasonably likely to expose a patient, healthcare provider, employee or any other person in the Hospital to harm or injury;
(ii) is, or is reasonably likely to be, detrimental to patient or worker safety or to the delivery of quality patient care within the Hospitals;
(iii) is, or is reasonably likely to be, detrimental to Hospital operations;
(iv) is, or is reasonably likely to constitute, abuse;
(v) results in the imposition of sanctions by the applicable professional College; or (vi) is contrary to the By-Laws, the Professional Staff Rules and Regulations, the Public Hospitals Act, or any other relevant law or legislated requirement.
Article 4.1(a): Where the conduct, performance or competence of a Professional Staff member exposes, or is reasonably likely to expose a patient, health care provider, employee or any other person at the Hospital to harm or injury and immediate action must be taken to protect the patients and no less restrictive measure can be taken, the Chief of Staff may immediately and temporarily suspend the Professional Staff member’s privileges, pending a meeting of the Medical Advisory Committee and a hearing by the Board. [6] In the present case, the MHA relied on four of the enumerated grounds, namely that Dr. Rogelstad’s conduct in failing to comply with the vaccination policy:(a) exposed, or was reasonably likely to, expose a patient, healthcare provider, employee or any other person in the Hospital to harm or injury;
(b) was, or was reasonably likely to be, detrimental to patient or worker safety;
(c) was, or was reasonably likely to be, detrimental to Hospital operations; and,
(d) was contrary to the By-Laws and the Professional Staff Rules. [7] A physician against whom action is taken under Article 3 or 4 is entitled to a formal meeting before the MAC which makes a recommendation to the Hospital Board. A Hospital Board hearing is held if requested by the physician, and the Hospital Board may accept or reject the MAC’s recommendation. A decision of the Hospital Board can be appealed de novo to HPARB under s. 41 of the PHA. . Abbott v. London Health Sciences Centre
In Abbott v. London Health Sciences Centre (Div Court, 2024) the Divisional Court dismissed a JR, here where a hospital revoked "access to operating rooms" against several doctors.
Here the court discusses hospital privileges, here regarding 'ceasing to operate or provide services' [PHA 44] - and the processes used here:[18] The question before this court is whether the Hospital was making a decision under s. 44, for which no hearing is required, or more specifically, was the decision of the Board to revoke the Applicants’ hospital privileges a decision to cease a service so as to fall under s. 44 of the PHA?
Was the Hospital making a decision under s. 44?
[19] The Applicants submit that the Hospital was not making a decision to cease a service, but “merely revoking the individual ... OR access and professional staff privileges”, and therefore their decision is not one which would fall under s. 44 of the PHA. I disagree.
[20] The term “service” is not defined in the PHA.
[21] To understand the decision below, it is important to understand the circumstances under which the Board’s decision was made.
[22] [sic] created by the provincial Ministry of Health, charged with overseeing health care planning and delivery across the province, including management of funding in the health care sector. The HSAA is an agreement that sets out the terms and conditions under which LHSC The Hospital is subject to the HSAA with Ontario Health. Ontario Health is an agency receives funding from Ontario Health. A condition of the funding is that LHSC will only use the funding for providing “Hospital Services” in accordance with the terms of HSAA.
[23] A definition of “Hospital Services” is found in the 2023/2024 Hospital Service Accountability Agreement (“HSAA”) as follows:Hospital Services means the clinical services provided by the Hospital and the operational activities that support those clinical services, that are funded in whole or in part by the Funder, and includes the type, volume, frequency and availability of Hospital Services. [24] One of the terms in the HSAA is that the Hospital transition to the Wait Time Information System (the “WTIS”). The WTIS supports the management of surgical waitlists by tracking patients waiting for a specific procedure based on their defined priority level.
[25] The Office of Capacity Management at LHSC, through the Strategic Redevelopment Committee, was tasked with reviewing its management accountabilities for funding under the HSAA to ensure, among other things, that that their funding from Ontario Health was only being used for Hospital Services that complied with the terms set out in the HSAA.
[26] The Strategic Redevelopment Committee determined that the Hospital’s practice of providing OR rooms to private practice oral surgeons was not in line with their obligations under the HSAA and that this Hospital Service needed to end.
[27] The Committee recommended to the Hospital’s Board of Directors that LHSC cease providing operating room services to private practice oral surgeons. The Board approved the recommendation at a subsequent Board meeting. The decision to stop providing OR rooms to private practice oral surgeons is within the Board’s general mandate to run the Hospital.
[28] The private practice oral surgeons historically had access to 300 hours of LHSC OR resources, in which they could perform procedures on patients from their private practices, who either required OR services or who did not have insurance for routine/low acuity procedures.
[29] This program operated quite distinctly from other Hospital Services. This arrangement provided benefits to the community and the private practice oral surgeons, as it operated outside of the usual practices of the Hospital.
[30] Patients of the private practice oral surgeons were able to gain access to an OR without being accountable to the WTIS and without having to be assessed, prioritized, and scheduled through the WTIS, in essence jumping the queue. This service was not consistent with the HSAA.
[31] The Applicants had access to the ORs, staff, equipment and supplies with no reimbursement to the Hospital. The Applicants did not have to fulfill the requirements and obligations of Hospital staff. For example, they were not required to treat any LHSC patients. They did not have to do on-call shifts. They did not need to have academic .integration network and did not use the integrated system within the Hospital.
[32] The Hospital was offering a service to the community by permitting patients access to a hospital without having to follow the usual process and/or be subject to provincial wait times. It was a distinct service being provided to patients who were not hospital based but part of the community clinics.
[33] Further, through this program, the Applicants were able to bypass the usual obligations or costs to the Hospital. As set out in Beattie v. Women’s College Hospital, 2018 ONSC 1852, 46 C.C.E.L. (4th) 131, at para. 14, the Applicants only worked at the Hospital in this capacity and their privileges did not extend outside of this program.
[34] All other surgical service lines within LHSC receive referrals from community surgeons to clinically assess and accept patients that require hospital-based surgery. LHSC then uses an integrated program to track patients waiting for surgeries and to allocate surgeon time based on the specific patient’s defined WTIS priority level. Patients referred to LHSC are usually high-acuity patients who require treatments in a hospital and the standard practice is for them to be referred to a hospital-based surgeon. The patients using this service were not subject to the same requirements.
[35] For the reasons above, I would find that the decision of the Board is “a decision to cease a service” within the meaning of s. 44 of the PHA. As set out above, it was agreed by the parties that if it is determined that the decision falls under s. 44, no notice or hearing was required.
[36] As set out above, LHSC is accountable to use the WTIS to ensure equitable patient access to scarce OR resources. They are required to report on their performance as part of their agreement with Ontario Health. The Board acted in good faith, pursuant to s.44(5) of the PHA in cancelling the service, to meet their obligations under the HSAA.
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