The Doctor’s Lawyer: Fighting a sexual abuse charge—part 1

One day, your worst nightmare happens: you are referred to the discipline tribunal on charges of sexually abusing a patient. Then, the other shoe drops: the notice of hearing (a document the college issues when it refers you to discipline) is publicly posted to your College of Physicians and Surgeons of Ontario (CPSO) profile. Like wildfire, anonymous writers take to your RateMD profile and more patients come out of the woodwork alleging that you abused them in the same way as described online.The CPSO prosecutor wants to call those new complainants as witnesses. The CPSO argues that such evidence should be admitted because it helps prove the reliability and credibility of the first patient’s allegations. In other words: where there’s smoke, there’s fire. Such “similar fact” evidence is presumptively inadmissible. On this issue, the Supreme Court of Canada has said: “It ought, in general, to form no part of the case which the accused is called on to answer.” But, the tribunal has the discretion to admit “similar fact’ evidence if there is cogent evidence of a pattern of behaviour that is “so valuable to the search for the truth that it outweighs” the prejudicial effects of admitting it. This is not a hypothetical example. These are a facts arising from a recent case before the discipline tribunal. What does this mean? The physician is a rheumatologist practicing at a busy hospital. Patient A was referred to the physician to assess for Sjogren’s disease. After a clinically indicated examination, she complained to her therapist about the interaction. The therapist filed a report with the college.Read: The Doctor’s Lawyer: Mandatory reports from other regulated health professionals. The patient alleged to the CPSO that during the physical examination, she could feel the physician’s penis when he pressed his groin into her knee—through clothing. She also alleged that while checking her heartbeat with his stethoscope, his hand made contact with her nipple—through clothing. An anonymous review was posted to the physician’s RateMD profile. It described how the physician’s groin had made contact with a patient during an examination. Then, two more patients came forward alleging that they experienced similar encounters. Both patients had complained to the CPSO on prior occasions—but the Inquiries, Complaints and Reports Committee had dismissed both complaints. One patient, SP, had complained about the physician’s “mannerisms,” but her primary concern was related to prescriptions and intravenous treatment during COVID. The other patient, IM, had complained that there ought to have been a chaperone present during her appointment because she was startled when her pelvic area had been examined. The point: At the time they complained, neither patient had complained about groin pressing. It was not until after they read the RateMD post that their stories evolved to include allegations about groin pressing. The CPSO brought a motion before the tribunal prior to the hearing. The prosecutor argued that the evidence of these other patients should be admitted during the hearing. In order for “similar fact” evidence to be admissible, the evidence must be “reasonably capable of belief” and “unaffected by intentional or inadvertent collusion.” The evidence must not have been tainted by “exposure to extrinsic sources that might unconsciously influence a witness’ account of events.” In other words, the CPSO was required to satisfy the tribunal that the evidence of both SP and IM—whose stories had both evolved since their original complaints—had not been tainted. In the case of SP, the first time she made the allegation of the groin touching was when she testified during her examination-in-chief conducted by the CPSO prosecutor on the motion. The CPSO prosecutor argued that because SP could recall specific details of her own appointment and in particular the layout of the room, this somehow suggested that her evidence had not been tainted. The chair of the tribunal disagreed, stating: “That is not how memory works; parts can be accurate and others inaccurate . . . her description of details does little to show that her evidence was untainted.” The chair went on to explain: [31] It is not uncommon that victims of abuse are prompted to come forward after hearing of others making allegations against the same person. That, alone, is not evidence of tainting. Here, however, SP made other allegations against the registrant and then added to them once she learned of the RateMDs allegation. There was no explanation for this significant change other than the influence of the RateMDs post. In evaluating SP’s evidence, the tribunal noted that SP had been “deeply unhappy” with the physician. He had refused to give her a report opining that she was “totally disabled,” which affected her insurance claim related to a car accident. The other patient was IM. IM had filed two prior complaints with the hospital expressing her concern that a chaperone ought to be present during her appointment. At no point in time did she allege that the physician had pressed his groin into her. Five years after her appointment, IM complained to the CPSO in 2022. In her written complaint, she admitted that she checked RateMD and was concerned that the physician did not have a chaperone present during appointments. It was not until after her admission that she regularly checked RateMD that IM’s allegations evolved to include groin pressing. There were further discrepancies between what IM initially told the CPSO investigator in 2022 and what she testified to in 2024.To explain such discrepancies, IM testified that her memory had “become clearer,” years later. Yet, she had no explanation as to why she did not raise the groin pressing in her two prior complaints to the hospital and initially raised less serious concerns. IM also had no recollection of the other aspects of her appointment. Thankfully for the physician, he had recorded it all in the chart note. The chair concluded that IM’s evidence was inadmissible because it did not meet the legal threshold of probative value. There was: [63] … strong evidence that it was inadvertently tainted by her reading of RateMDs posts, and the college has not met its burden to show it was untainted. She added an allegation, years later, that was the same as what an anonymous poster said on RateMDs.The bottom line?Keeping this kind of “similar fact” evidence out of the hearing is a crucial tool in your lawyer’s trial bag. Not only did this physician fight this motion and win—but he was ultimately acquitted of the charges laid against him. Brooke L. Shekter is the managing partner of Lloyd Shekter Health Law.

The Doctor’s Lawyer: Fighting a sexual abuse charge—part 1

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