discipline summaries
Similar Fact Evidence
Ms. W had been treated by Dr. EFG on a number of
occasions and was in her twenties at the time of her
visit in 2002, during which she alleges Dr. EFG inappropriately touched her genital area in a sexualized
manner. She attended Dr. EFG for the follow-up of an
abnormal pap smear and was examined alone without
a chaperone. Ms. W alleged that Dr. EFG manipulated a genital piercing and asked inappropriate sexual
questions. He subsequently touched her clitoris and
deeply palpated her vagina during his examination,
which she felt was an attempt to arouse her. She made
a complaint to the College, which was investigated,
but the outcome did not result in a referral to the
Discipline Committee.
Evidence of Expert Dr. Y
Dr. Y is an Obstetrician/Gynecologist from a teaching hospital. He provided testimony on the general
approach and process of a pelvic examination. He
showed a brief video of the procedure and demonstrated on a plastic model that the physician’s thumb,
if held as it typically is during an examination, in a
‘pistol’ position, would always contact the clitoris
or clitoral hood during the bimanual examination.
He said that this clinical touching would be nondeliberate and inadvertent and that the contact would
generally be brief.
Evidence of Dr. EFG
When he was asked about the evidence of Ms. W, Dr.
EFG agreed that when he was made aware of Ms. W’s
complaint in 2002 it was a very upsetting allegation
and although there was no referral to the Discipline
Committee, going through the investigative process
resulted in significant changes to his practice. Subsequently, he has always had a chaperone with him when
performing pelvic examinations.
Dr. EFG agreed that he may have inquired about
the piercing seen on Ms. W. He stated that at the
time, such piercings were a relatively new phenomenon and he had little experience with them. He
stated that he did know that Ms. W and her husband
operated a piercing and tattoo business. He admitted
that he may have asked about the motivation of people
seeking such an item but denied that he would ask
anything about the effect of such appliances on sexual
function.
Dr. EFG allowed that he might have touched the
piercing when he did his pelvic examination, which
would include a thorough washing of the genitalia
with acetic acid using a cotton ball. This washing procedure could have moved the piercing around.
Dr. EFG stated that he had no idea that Ms. W was
upset with the visit when she left the office.
Assessment of Similar Fact Evidence
The evidence of Dr. Y was useful in describing and
documenting what constituted a normal pelvic
examination. On the basis of the evidence, the Committee determined that the examinations of Ms. X and
Ms. W were appropriate and within the bounds of a
normal clinical examination. In both cases, the clitoris
was likely touched inadvertently.
In considering the similar fact evidence of Ms. W,
the Committee was concerned that Ms. W’s story had
changed over time. As with Ms. X, Ms. W initially
seemed to consider at least parts of the examination
by Dr. EFG to have been appropriate but as time went
on, the events became more and more clearly sexual
to her. In conclusion, it was the view of the Committee that the evidence of Ms. W was not of sufficient
weight and reliability for the Committee to conclude
that touching of a sexual nature had taken place.
Consequently, the evidence was not used by the Committee in determining the allegation of sexual abuse of
Ms. X as set out in the Notice of Hearing.
Summary
In summary, it is the unreliability of the evidence of
the complainant and the strength of the evidence of
Dr. EFG which resulted in the Committee’s decision
that the allegations of professional misconduct against
him are not proved. The Committee recognizes that
it is not up to Dr. EFG to prove that the allegations
are untrue, and that the burden of proof lies with the
College. It is the finding of the Committee that on
a balance of probabilities, it has not been established
that Dr. EFG engaged in touching of a sexual nature
as alleged.
Full decisions are available online at www.cpso.on.ca.
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Issue 3, 2016 Dialogue
51