The Doctor’s Lawyer: Fighting a sexual abuse charge—part 2

A patient complained to the College of Physicians and Surgeons of Ontario (CPSO) that during a clinically indicated examination, her physician rubbed her on the shoulder while pressing her arm, touched her breast while listening to her heart with a stethoscope and pressed his groin into her knee (through clothing). The CPSO referred the physician to the discipline tribunal. After the referral to discipline, more patients came out of the woodwork with similar allegations. The physician was successful in keeping those “similar fact” witness statements out of the record. As I explained in The Doctor’s Lawyer: Fighting a sexual abuse charge – Part 1, knocking out those witness statements lay the groundwork—or at least part of it—for his successful defence. A sexual abuse case will typically boil down to the complainant’s reliability and credibility. That’s why the CPSO wanted those “similar fact” witness statements—to bolster the patient’s narrative. Without the benefit of that “similar fact” evidence, what remained was the patient’s contradictory version of events. There was no question that the medical examination was clinically indicated. The main questions were: whether the shoulder rubbing and breast touching were professional misconduct,whether the physician’s groin made contact with the patient’s knee (through clothing),whether she felt his penis or his cell phone in his pocket, andwhether this amounted to sexual abuse—even if it was accidental. Read: The Doctor’s Lawyer: When your good reputation doesn’t matterWhat does this mean?This case is a perfect example of how the devil is in the details—and your defence rests on them. The patient had surreptitiously recorded the appointment. Ironically, it supported the physician’s account of events, and not hers. Moreover, there were a variety of inconsistencies throughout her narrative. Cross-examination is the place to tease out those inconsistencies to undermine a complainant’s reliability and credibility. In this case, the defence was successful in doing so. The result: the tribunal rejected the patient’s evidence and accepted the physician’s. With respect to the shoulder rubbing: the physician agreed that he patted the patient’s shoulder. He observed that the patient was nervous and he was simply trying to reassure her. The tribunal concluded that this touching was a “misjudgment” but it did not rise to the level of professional misconduct. With respect to the breast touching: the question was whether the physician touched her inappropriately when listening to her heart with his stethoscope. During the investigation, the patient alleged that the physician cupped the bottom and side of her breast. But then she testified that the physician had instead touched the “nipple area.” This is where the details of the appointment matter. Thanks to the patient’s own recording, it was established that the physician listened to her heart while she had strips in her eyes for a Schirmer’s test. In other words: she couldn’t see clearly. The patient conceded on cross-examination that she had limited sensation in the “nipple area” as a result of a mastectomy and reconstructive surgery. The totality of the evidence meant that the patient could neither properly see nor feel what or how the physician was touching her—which directly contradicted her prior statements. As a result of the patient’s unreliable evidence, the tribunal rejected her evidence and found that the physician did not touch the patient’s breast at all. With respect to the groin pressing: the patient testified that her knee was “kind of like wedged in his groin,” she could fee his genitals (through their clothing), and she alleged his penis was hard. She also testified that she was confident that it was not his hip. However, on cross-examination, she said it was the area between his groin and his left hip. Again, the chronology of the appointment was an important tool for the defence. In her interview with CPSO investigators, the patient had alleged that the groin pressing occurred before the strips were placed in her eyes for the Schirmer’s test—indicating that she saw the groin pressing. However, during the hearing (and thanks to her recording) it was established that the alleged groin pressing occurred during the Schirmer’s test. Meaning: her ability to see was impaired. The tribunal found the patient to be neither reliable nor credible. Her narrative shifted, she made contradictory allegations and she was also contradicted by her own recording. Detrimental to the patient’s reliability and credibility was also that she testified she was crying and in distress during the appointment—yet the recording proved that she was laughing and joking with the physician. By contrast, the physician gave clear, cogent and convincing evidence. He testified that he keeps his cell phone in his left pocket. He explained that it was possible that the patient felt his phone or his hip. He provided the tribunal with photographs demonstrating that given his height (5’ 5”) and the height of the examination table, his pocket is typically at the same level as the patient’s knee. This evidence was an important tool to show the tribunal a cogent explanation to support his testimony: [48] In contrast, the registrant’s evidence as to his usual practice was clear, unshaken on cross-examination and logical. It was supported with photographic evidence of how he positioned himself and he had a cogent explanation for why he conducted the examination in that way and why he kept his phone in his left pocket.The tribunal concluded that the physician’s penis did not touch the patient’s knee and he did not sexually abuse the patient. The tribunal acquitted the physician of all the charges. The bottom line?At the hearing, the CPSO submitted that in the event the tribunal found the physician did not intentionally press his groin into the patient’s knee, he should still be found guilty of disgraceful, dishonourable or unprofessional conduct for avoiding incidental contact between the objects in his pocket and the patient’s knee, during the examination. The CPSO argued this accidental contact was a “physical boundary violation.” I believe that it reaches a new level of absurdity to suggest that it is an act of professional misconduct to have accidental or incidental contact between a physician’s cell phone in his pocket and a patient’s knee— and during a clinically indicated physical examination. If such an argument was accepted by the tribunal, it could create a dangerous pathway for the CPSO to pander to frivolous, vexatious, moot or bad faith complaints—something s.26(4) of the Health Professions Procedural Code is designed to prevent. The tribunal refused to consider this argument on the grounds that the CPSO had not provided proper notice of the argument to the physician. This is a technical reason—it does not bar the CPSO from raising the argument on another case with prior notice. However, as the tribunal said in this case: [81] Imperfection alone is not professional misconduct. Disgraceful, dishonourable or unprofessional conduct means a “serious or persistent disregard for one’s professional obligations”: College of Physicians and Surgeons of Ontario v. Rabiu, 2020 ONCPSD 15; Attallah v. College of Physicians and Surgeons of Ontario, 2021 ONSC 3722 at para. 54 (Div. Ct.). An error or departure from a policy or standard, on its own, is not necessarily unprofessional.Brooke L. Shekter is the managing partner of Lloyd Shekter Health Law.

The Doctor’s Lawyer: Fighting a sexual abuse charge—part 2

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