Dialogue Volume 12 Issue 3 2016 - Page 51

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. Select Doctor Search and enter the doctor’s name. Issue 3, 2016 Dialogue 51