Tierney Stauffer LLP Lawyers

Patients rely on their health care providers to provide compassionate and respectful care, often in intimate situations. But what happens when a health care provider fails to provide their patient with the compassion and respect they deserve?

In a recent decision from the College of Physicians and Surgeons of Ontario Discipline Committee, an Ontario doctor was found to have committed an act of professional misconduct by sexually abusing a patient. The incident had occurred several years prior to the complaint, making the allegation more challenging to demonstrate, but not impossible.

The doctor has been suspended and a later hearing will determine his penalty. Though this decision relates to the professional misconduct aspect of the claim, there may very well be a medical malpractice or personal injury claim forthcoming, despite the fact that the abuse took place in 2014. Despite the passage of time, this is possible due to the unique limitation rules relating to civil sexual assault claimants that victims should be aware of.

Patient Reported Incident Over Three Years After it Took Place

The patient, who happened to be a qualified obstetrician/gynecologist in the Philippines, was physically examined by her doctor. The doctor performed a pelvic examination during which he touched the patient sexually. The patient gave the doctor “the benefit of the doubt”, assuming that he was having difficulty performing the examination.  Following the examination, however, the doctor “asked questions and made remarks of an inappropriate and sexual nature”. The only other witness to the events was the patient’s young daughter. The Discipline Committee noted that “it would be unreasonable to expect a child of that age to be able to recall years later events whose significance she would have been unlikely to be able to appreciate at the time”.

The patient did not report the abuse for three-and-a-half years until she read a report in the Toronto Star regarding a doctor losing his license for sexually abusing a patient. At that time, she decided to report the doctor to the College of Physicians and Surgeons of Ontario. Later, she reported the doctor to the police.

In cases like this one, where the events are several years in the past and where there are no witnesses other than an individual who cannot testify, it can be difficult to determine the truth. Therefore, the Discipline Committee had to consider the credibility and reliability of both the patient and the doctor.

The Discipline Committee’s Assessment of Credibility and Reliability

The patient was found to be clear and consistent. However, the doctor, who was “calm and straightforward” when his lawyer examined him, became defensive on cross-examination. The Discipline Committee found that the doctor’s defensiveness did not necessarily impact his credibility; however, some of the issues with his testimony were “peripheral issues of marginal assistance in the determination of the main issue”. Ultimately, the Discipline Committee determined that the main issue (what really occurred) would rely on the comparative credibility of the patient and doctor.

Contextual Factors Support Claim

To establish that the doctor had committed professional misconduct, the Discipline Committee needed to find that the doctor had sexually abused the patient under s. 51(1) of the Health Professionals Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991). The Discipline Committee had to be satisfied, on a balance of probabilities, that the sexual conduct had taken place as reported.

The Discipline Committee pointed to factors suggesting that the events described by the patient had taken place. First, the patient had abruptly stopped seeing the doctor despite having a previously good relationship. Coupled with the allegations, this suggested that something “unusual” had happened. Concerns raised by the doctor’s counsel relating to the patient’s use of notes were dismissed, as the patient was not “spontaneous” and often made notes before presentations.

No Time Limitation on Historic Sexual Abuse Claims

Understandably, patients who go through traumatic experiences may minimize their experiences or fail to realize the gravity of the situation until a later date – particularly in sexual abuse cases. In response, Ontario’s Limitations Act removed all limitation periods for civil claims of sexual assault because victims of sexual assault often suffer physically, emotionally, and mentally. They may also require more time to process what has happened to them, particularly in cases where the assaulter was someone with whom they had a relationship or otherwise trusted. The impact of these events can last a lifetime, sadly.

If you believe you have been the victim of sexual assault or misconduct, remember that it is never too late to report the event and to seek the assistance of a lawyer. Victims of sexual assault or misconduct should consult with a skilled lawyer as soon as they feel comfortable doing so to understand their rights regardless of how much time has elapsed since the assault occurred.

Skilled Medical Malpractice Lawyers Serving Eastern Ontario and North Bay

At Tierney Stauffer LLP, our experienced and compassionate personal injury lawyers have worked with many clients in cases related to past sexual abuse, as well as victims of medical malpractice. When a medical professional causes harm to a patient, our firm helps those victims ensure the medical professional is held accountable and, in appropriate circumstances, obtain compensation. If you believe that you have been the victim of professional misconduct or medical malpractice, we can help.

We recognize that no two injury claims are the same, which is why we give each claim the personalized attention needed to bring about the best possible resolution. Call us at 1-888-799-8057 or contact us online to set up a free consultation with a member of our team.

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Ottawa, Ontario
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