Regulating Doctors Who Practice In The Area Of Forensic Pathology: Is The Ontario College Up To The Job?

FILED EARLY FOR WEDNESDAY APRIL 23, 2008;

"THIS STRONGLY SUGGESTS THAT A BODY CHARGED WITH GENERAL OVERSIGHT OF THE MEDICAL PROFESSION AS A WHOLE MAY NOT BE IDEALLY SUITED FOR OVERSIGHT OF SPECIFIC ISSUES ARISING FROM THE ROLE PLAYED BY FORENSIC PATHOLOGY IN THE JUSTICE SYSTEM."

CLOSING SUBMISSIONS; THE AFFECTED FAMILIES GROUP;

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One of the crucial questions raised by the evidence called at the Goudge Inquiry is why the College of Physicians And Surgeons of Ontario did not do a better job of protecting the public from Dr. Charles Smith.

The Affected Families Group suggests, in its closing submissions, that the College did not have a sufficient knowledge of issues involving forensic pathology to do a proper job.

"It is arguable that the College of Physicians and Surgeons of Ontario is the only body that ever exerted anything that remotely resembled effective oversight of Dr. Smith," the Group's closing submissions on this topic begin.

"Following the decision of the Health Professions Appeal and Review Board in February, 2000, which determined that the College did have jurisdiction to consider DM’s (the babysitter's father) complaint, the Complaints Committee dealt with the merits of complaints by DM, Brenda Waudby, and Maurice Gagnon, and required Dr. Smith to attend before the panel of the Committee to be cautioned in all three cases," they continue.

"The College considers a reprimand to be a significant regulatory sanction, according to Dr. Gerace. (College Registrar)

Moreover, the Complaints Committee, assisted by its expert panel, appears to have reached conclusions on Dr. Smith’s forensic pathology work in all three cases which parallels evidence heard by this Inquiry:

0: In the Amber case, the panel concluded that Dr. Smith’s work was not as thorough as it should have been and that he was overly dogmatic in stating his conclusions;

0: In the Jenna case, the panel criticized Dr. Smith’s failure to review clinical information, as well as his failure to conduct an adequate examination with respect to sexual assault, and, most specifically, concluded that his estimate of the time during which the fatal injuries were received was far too broad;

0: In the Nicholas case, the deficiencies noted by the panel were similar to many of those outlined by Mr. Gagnon in his initial letter of complaint to the Chief Coroner's Office.

However, there were important deficiencies in the results of the complaints in each case.

First, and most important, the Complaint Committee’s conclusion in all three cases was that Dr. Smith “met the standards expected of a pathologist assisting the coroner in an investigation”.

To the contrary, this Inquiry has heard expert evidence in all three cases that Dr. Smith’s opinions and testimony were deeply flawed and did not meet forensic pathology standards.

This strongly suggests that a body charged with general oversight of the medical profession as a whole may not be ideally suited for oversight of specific issues arising from the role played by forensic pathology in the justice system.

Second, the complaint committee clearly did not reach the appropriate conclusion with respect to Dr. Smith’s handling of the hair in the Jenna case.

The Review Board's conclusions on appeal completely contradict the evidence heard before this Inquiry.

In retrospect, this appears to be because the expert panel accepted Dr. Smith’s explanation in isolation, not being aware of information provided by DC Charmley (Peterborough police officer) to the College Investigator, Ms. Doris, or of the explanation provided by Dr. Smith to Dr. Cairns.

Third, the expert panel appears to have been unaware that at the time of Dr. Cohl’s interview with Dr. Smith (for the College H.L.), he had been suspended by the Chief Coroner's Office from doing coroner’s autopsies in criminally suspicious death cases.

Indeed, the Minutes of that interview suggest that Dr. Smith was less than candid about his status.

Had the College been aware of his suspension, the Complaint Committee might well have determined to take further investigatory steps."

I read with interest the College's position that a reprimand is a significant regulatory sanction.

The reality is that reprimands are not considered important enough to be posted on the College's Web-site.

Dr. Smith was therefore shielded from the scrutiny from anybody - or any other medical jurisdiction - that might be interested in his professional record.

The information that Dr. Smith was found to have demonstrated serious deficiencies in his work in three cases is nowhere to be found on the College Web-Site.

If you go to the that site, and check under "findings" you will be told "no past findings."

Of even greater concern to this Bloggist is that Dr. Smith's "status" is listed as "active" on the "terms and conditions" section of the site - and a note indicates that "Dr. Charles Randal Smith has entered into a voluntary undertaking not to practice forensic pathology in Ontario, prior to April 25, 2008.

That undertaking expires on Friday.

One way to judge whether the Ontario College has any teeth will be whether it brings any discipline proceedings against Dr. Smith in connection with allegations at the Inquiry that he mislead College investigators looking into the three complaints.

Harold Levy...hlevy15@gmail.com;

The Rise of Dr. Charles Smith; Two Basic Questions Answered At The Inquiry; Witness statements;

"DR. SMITH ALSO TOLD THE STAR THAT HE FOUND IT IRONIC THAT WHILE HE WAS BEING PILLORIED AT HOME, “HERE AT THE AMERICAN ACADEMY OF FORENSIC SCIENCES PEOPLE ARE COMING UP TO ME GETTING MY OPINION ON CASES BECAUSE THEY VIEW ME AS ONE OF THE WORLD’S EXPERTS," THE STORY SAID."

DR. CHARLES SMITH TO THE TORONTO STAR;

Two basic questions which have been plaguing me have recently been answered by the Goudge Inquiry;

Question one: How did Dr. Charles Smith get to be hired by the Hospital For Sick Children?

Question Two: How did he (without any qualifications in forensic pathology) come to be Director of the newly formed Ontario Pediatric Forensic Pathology Unity, which was to be housed at the Hospital;

The answers are found in a "witness statement" By Dr. M.J. Phillips which was recently entered into evidence at the Inquiry and can be found on the Inquiry's Web-page under transcripts; (www.goudgeinquiry.ca);

(Witness statements are actually summaries of interviews of a potential witness conducted by Inquiry staff);

Question One:

We learn from the witness statement that Dr. Phillips recruited Dr. Smith and three other pathologists, shortly after being hired as Pathologist in Chief in 1979, to help create "an exceptional academic program, increase scientific research and relieve the workload faced by existing staff.

We are told that: "Dr. Smith, who had completed a year of research with Dr. Phillips and whom Dr. Phillips considered to be well-trained, enthusiastic, promising and well-liked. He was hired around 1981."

Question Two:

Dr. Phillips says that while he conceived the idea of having a specialized forensic unit at the hospital, Dr. Smith essentially picked up the ball and ran with it.

As the statement says: "Dr. Smith assisted Dr. Phillips with preparing the proposal for the (Unit), but Dr. Smith carried the idea forward."

Smith eventually was asked to be the "lead" person on forensic issues within the department and performed "more and more forensic autopsies" during his first ten years at the Hospital before the Unit was established.

"Dr. Smith became more and more involved with Coroner's work over time," the document says.

"Dr. Smith attended meetings at the Coroner’s office, which Dr. Phillips did not attend.

Dr. Phillips was aware that Dr. Smith sat on committees at the (Chief Coroner's Office) that Dr. Phillips was not a party to.

Dr. Phillips had the impression that the people at the (Chief Coroner's Office) had confidence in Dr. Smith and respected him very much.

Dr. Young informed Dr. Phillips that he thought that Dr. Smith would be a good director for the (Unit)"...

"The Coroner's office would not accept any report from (The Hospital) unless Dr. Smith signed off on the report," the statement says. ego,

Stopping here for a moment, Dr. Phillip's statement confirms my theory that Dr. Charles Smith helped create the unit and then skillfully maneuvered himself into the position of Director, with the full support of the Chief Coroner's Office.

Dr. Smith then transformed the Unit - conceived by Phillips as a research centre employing a variety of specialists - into a mainstream centre for forensic pediatric autopsies, which he once testified was the only one of its kind in the world.

He then used the Centre he had helped create to cultivate personal fame and prestige - and the persona of the renowned Dr. Charles Randal Smith.

I had a glimpse into Dr. Smith's ego when I managed to get hold of him for comment after three complaints had been filed against him with the College of Physicians and Surgeons of Ontario.

"Smith also told the Star that he found it ironic that while he was being pilloried at home, “here at the American Academy of Forensic Sciences people are coming up to me getting my opinion on cases because they view me as one of the world’s experts," the story said.

Smith was speaking to the Star from Seattle where he was attending a conference of the American Academy of Forensic Sciences.

One of the world's experts?

I thought of this quote as I listened, with disbelief, to Dr. Smith's evidence to the Goudge inquiry that he was utterly ignorant about forensic pathology and the courts.

In fairness, (two words which I heard a great deal during the inquiry), it is not like the Unit would an utterly new creation outside of the hospital employing hordes of staff.

We learn from Dr. Phillip's witness statement that it was initially a philosophical concept involving existing premises, personnel and facilities.

So it would be unreasonable to suggest that the Chief Coroner's Office should have held a competition and scoured the world to find a director.

But that said, the Coroner's office should at the very least have put someone in charge who was fully qualified and experienced in the practice of forensic pediatric pathology - instead of hiring the largely self-taught Dr. Smith.

Harold Levy...hlevy15@gmail.com;

Part Four: Smith Testifies In Death Penalty Case: The Mullins-Johnson Factor;

This was not just any case;

Christopher Fuller was facing the death penalty;

The jury wanted him executed.

It was only the judge's decision - based on his lack of a previous criminal record, his support of his family, and his military service for his country - that kept him alive.

As lawyer James Lockyer, who represents nine families affected by Dr. Smith, told the Inquiry:

"If we visualized Mr. Mullins-Johnson being convicted south of the border in the wrong state, he would almost certainly have been sentenced to death for the crime that he was convicted, albeit it was a crime that never happened."

Lawyer Louis Sokolov, who represents The Association In Defence Of The Wrongly Convicted, put it this way:

"Knowing what we do now about Dr. Smith's failings as a pathologist and as a witness, the prospect that a jury would be asked to recommend a death sentence
based, in part, upon his evidence is, to say the least, disquieting."

Lockyer, Sokolov and other lawyers at the Inquiry, Smith's appearance as an expert witness in the Hamilton, Ohio courtroom raises some important issues, including:

Capital punishment: (Legal systems have to live with the possibility of error. The unique feature of capital punishment is that it puts beyond recall the possibility of correction." (Supreme Court of Canada); (Our worst fear: Execution of an innocent person);

Should Ontario resources (public funds) be used in prosecutions that seek execution.

Was Dr. Smith involved in any other death penalty cases?

Is there a policy in place at the Chief Coroner's office to either prevent or, indeed, to permit testimony of Ontario pathologists in death penalty cases?

If Ontario officials are permitted to or are, indeed, loaned out as a resource,
in support of death penalty cases in the US,

Should Ontario citizens be informed when this happens?

Are there, or should there be, governing use of Ontario pathologists in death penalty prosecutions?

Timing:

How could Dr. Smith's superiors in the Chief Coroner's Office have him allowed to take on such a huge responsibility given the prevailing public knowledge of his incompetence?

Other questions:

Who, if anyone, at the Ontario Chief Coroner’s Office or the Hospital For Sick Children permitted or, indeed, requested that Dr. Smith would assist in this case?

If no one permitted him to do so, how was he able to do so?

How was he able to leave his job and - and travel, to take on these responsibilities?

Who paid for the time that he spent engaging in this work?

What other cases outside of Canada did Dr. Smith testify in or consult in?

Answers to most of these questions will unfortunately not likely be forthcoming because the interested lawyers did not have the opportunity to address them either to Dr. Smith or Dr. James Young, the former Chief Coroner;

But questions aside, how could this self-admitted "ignorant" man have put himself in a situation where his testimony could determine the life or death of an accused person?

Is it too harsh to blame him - for not recognizing his limitations?

Must the responsibility be shared by his superior's in the Chief Coroner's Office and the Hospital for Sick Children who boosted him publicly by allowing him to keep doing his work while his flaws?

Does the College of Physicians and Surgeons have to take a share of the blame for not imposing a punishment which would appear on the College registrar and be publicly available for anyone to examine?

So much grist for the Charles Smith Blog!

Harold Levy...hlevy15@gmail.com;