Doctor committed professional misconduct when he touched patient in a sexual way during examination

In recent disciplinary proceedings, a discipline committee found that a doctor had touched his patient in a sexual manner during a complete physical examination and made sexual remarks, which amounted to sexual abuse and professional misconduct.

In College of Physicians and Surgeons of Ontario v. Tan, 2021 ONCPSD 25, the patient, who used to be an obstetrician/gynecologist in the Philippines, alleged that the doctor performed a sexualized and inappropriate pelvic examination and asked inappropriate and sexual questions.

Following her family’s move to Canada, the patient searched for a family doctor, settled on the doctor subject of these disciplinary proceedings, with whom she shared a country of origin, and had the first appointment in March 2013. During a physical examination in May 2014, she was taken aback when the doctor conducted an internal examination, for which she had to remove her pants and underwear, despite the lack of any pelvic complaints.

According to the patient’s testimony, she trusted the doctor and gave him the benefit of the doubt as a medical professional and as a fellow countryman. The patient lost this trust and felt like she had been molested when, afterward, the doctor said that he thought she was aroused, asked her if she had ever experienced orgasm and suggested that she join “arousal sessions” if she did not experience orgasms. After this incident, the patient and her family members never returned to visit the doctor.

The doctor denied that there was sexual impropriety and that a pelvic examination had occurred during the physical examination.

A panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario ruled that the doctor committed sexual abuse and an act or omission relevant to the practice of medicine that, having regard to all the circumstances, the college members would reasonably regard as disgraceful, dishonourable or unprofessional when he touched the patient’s genitals in a sexual way, made sexual remarks during the appointment and failed to give the patient privacy and a gown or drape before the examination.

The committee found that the doctor committed an act of professional misconduct under s. 51(1)(b.1) of the Health Professions Procedural Code, which is schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 and under paragraph 1(1)33 of Ontario Regulation 856/93, for which his registration certificate would be suspended under an immediate interim order pursuant to s. 51(4.2) of the Code.

The committee determined, on the balance of probabilities, that the doctor committed disgraceful, dishonourable and unprofessional conduct when he failed to obtain the patient’s consent for the intimate examination and failed to provide her privacy, a suitable cover or a third-party chaperone. The committee found credibility in the patient’s testimony of the abusive examination and its aftermath.

The committee, citing the ruling in College of Physicians and Surgeons of Ontario v. Ruggiero, 2016 ONCPSD 28, rejected the submission that the impugned contact was implausible because the doctor would risk getting caught. The committee also rejected the argument that the patient’s account was scripted and fabricated because the patient was not a spontaneous person and often made notes before she had to make a presentation, especially in English. The abrupt termination of the otherwise good doctor-patient relationship also supported the finding that an unusual event had ruptured this relationship, noted the committee.

In College of Physicians and Surgeons of Ontario v. Tan, 2021 ONCPSD 26, the committee dismissed the doctor’s motion to reopen the hearing for the introduction of new evidence. The committee applied the test used in Scott v. Cook, 1970 CanLII 331 (ON SC), [1970] 2 OR 769 (H.C.) and in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 SCR 983, rather than the four-part test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759. The committee found that the new evidence and the supporting submissions were inadmissible because they failed the first step of the Sagaz test.