College clears doctor over comments he made about 'criminals' in the ER

The College of Physicians and Surgeons of Nova Scotia has dismissed a complaint against a Cape Breton doctor accused of failing to uphold the reputation of the medical profession by making "stigmatizing and insensitive" comments about patients in police custody.

Dr. Christopher Milburn had multiple complaints filed against him stemming from comments he made on the convictions of two special police constables for criminal negligence in the death of a person in custody at a detention facility.

He made the comments in a November 2019 editorial letter for the Chronicle Herald, an interview with CTV, as well as a rebuttal letter in the Chronicle Herald, in which he detailed his experiences as an ER doctor dealing with what he called "the criminal element."

In its decision, the investigating committee said it did not find evidence of professional misconduct, though it agreed some of Milburn's comments were problematic.

"The committee found that some of Dr. Milburn's statements were generalizations based on negative stereotypes that could be interpreted as stigmatizing to segments of the population," the college wrote in its four-page decision.

Accusations without evidence

The complainants said Milburn referred to a group of patients as "criminals" and implied they did not deserve the same level of care as other patients.  

They also said he lacked evidence to prove his assertion that a "large percentage of patients who would spit on someone trying to help them are carrying dangerous infectious diseases."

"The complainants did not suggest physicians cannot or should not contribute to public policy debates," the decision said.

"They expressed that all physicians enjoy the right to freedom of expression, but that as a regulated health-care professional, physicians are not free to say anything they want in any matter they wish."

The complainants said Milburn didn't appear to have the interviewing or de-escalation skills needed to deal with difficult patients.

Freedom of expression

During the investigation, Milburn argued he was using his right to freedom of expression.

He said many of his colleagues reacted positively and expressed relief that he raised the subject, noting they were hesitant to do the same out of fear of being reprimanded or losing their jobs.

Milburn told the investigating committee he treats all patients with the same amount of care to the best of his ability. He said his priority is to not overuse resources, which are already limited, for any one patient at the expense of another. 

The reference to criminals, he said, was directed toward those who engage in "lawless and assaultive behaviour in the emergency department" — an explanation the college accepted in its decision.

He also defended his comments about patients who are at a higher risk of transmitting communicable diseases.

"Dr. Milburn indicated there is no doubt that being spit upon, particularly where patients may be bleeding from the mouth or nose, are at higher risk of transmitting communicable diseases," the committee said.

"He indicated he does not feel he has to be an infectious disease expert to be aware of this."

Committee suggest in-house resolutions

The college said there was no evidence to suggest Milburn treats patients in custody differently than any other patients.

"The committee accepted his explanation that providing care in such circumstances can be difficult, when patients are unco-operative or violent," the decision said.

In dismissing the complaints, the investigating committee said it did not believe Milburn's comments to the media hurt the reputation of the medical profession. 

The committee agreed Milburn has the right to freedom of expression, but advised him to avoid making generalizations in public because as a physician, his word is held in a higher regard. 

Physicians with grievances should bring them up to the college before going public, it said.

The committee also suggested the college provide clear guidance to physicians on when freedom of expression may cross the line into a professional regulatory offence.  

"It will be important for physicians to recognize that the right is not an unbridled one," it said.