01/29/2015 02:12 EST | Updated 03/31/2015 05:59 EDT

Heart surgeon suing Alberta Health Services; claims conspiracy to restrict work

EDMONTON - A prominent surgeon in a legal battle with Alberta's health superboard over his conduct says the dispute has resulted in longer waits for people needing open heart surgery.

Dr. Dennis Modry is suing Alberta Health Services and a group of senior physicians and administrators, alleging they conspired to restrict and eventually suspend his operating privileges.

"Beginning in December 2009 and continuing to the date of this statement of claim, some or all of the defendants acted in agreement or with common design to reduce or eliminate Dr. Modry's surgical privileges at UAH and force him to retire," reads his statement of claim filed last April.

Modry performed the first heart transplant in Western Canada in 1985 and became head of cardiovascular and thoracic surgery at University of Alberta Hospital in Edmonton. He is currently an associate clinical professor at the university's medical school.

In his lawsuit, Modry alleges that AHS "deliberately ambushed" him in 2010 with false allegations of poor clinical practice that included concerns that his patients died more frequently than patients of other surgeons.

He alleges that Alberta Health Services staff prepared other false and misleading reports in 2013 that stated his mortality and complication rates were too high.

Modry claims that since his medical privileges were restricted, the number of people on the heart surgery waiting list has increased.

"The number of patients waiting for open heart surgery at UAH increased from 109 in January 2012 to 205 in January 2013. That number remained in excess of 200 for all of 2013," reads the claim.

"As of December 2013 there were 257 patients waiting for open heart surgery. That number would have been significantly lower had Dr. Modry been permitted to operate," it continues.

"From September 2013 to the present, many high-risk patients have been denied the option of surgery as a result of the revocation of Dr. Modry's surgical privileges."

Modry's lawsuit alleges conspiracy, breach of contract, defamation and malicious prosecution.

Along with damages, he is seeking reinstatement by Alberta Health Services with full medical privileges.

Allegations in statements of claim have not been proven in court.

Alberta Health Services says there is no conspiracy against Modry and denies that staff deliberately ambushed the doctor with false allegations.

In its statement of defence, the health agency says reviews of Modry's performance were done in good faith and were triggered by complaints about his surgical decision-making and surgical outcomes.

It says restrictions placed on Modry did not have a big effect on surgery waiting lists.

"The defendant AHS denies the assertion that the number of patients currently awaiting open heart surgery would be significantly lower had the plaintiff been permitted to operate as alleged," reads the statement of defence.

"The defendant AHS denies the assertion that high-risk patients have been denied the option of surgery as a result of the revocation of the surgical privileges of the plaintiff."

Court records show a chambers judge issued an order last month which granted Modry an interim injunction reinstating him at full pay. But the judge stayed the reinstatement pending a ruling by the Alberta Court of Appeal.

Last week, the Appeal Court granted AHS a stay on part of the reinstatement order.

Appeal Court Justice Russell Brown wrote there are arguments to be made on both sides, but he narrowly favours AHS because of the public interest.

"AHS maintains that there are 'serious, ongoing and unresolved concerns about Dr. Modry's professionalism and skill," Brown wrote.

"Coupled with a 2014 periodic review of Dr. Modry's performance, the AHS says these reviews are evidence that reinstatement presents a risk of compromised patient care (which would in turn harm AHS's institutional reputation), concerns about supervision, and a risk of 'disruption' that would arise from his having to work collaboratively with colleagues who are defendants to his lawsuit."

Brown wrote that his ruling is not a determination of Modry's claims against AHS. He also wrote that there is evidence supporting Modry's claim that his continued suspension would harm his professional reputation and affect his surgical skills.

Lawyers for Modry and AHS declined comment.