Patient’s breast was likely touched during medical procedure, but she mistook purpose for such: case

A regulator’s panel has concluded that a doctor did not sexually abuse his patient, finding that the patient’s testimony was credible because she honestly believed that the doctor had touched her breast in a sexual manner, but was not reliable.

In College of Physicians and Surgeons of Ontario v. Vora, 2021 ONCPSD 28, a patient alleged that a doctor touched her breast in a sexual manner after a biopsy procedure, thereby committing professional misconduct, including sexual abuse of a patient under clause 51(1) (b.1) of the Health Professions Procedural Code, as well as an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional under paragraph 1(1)33 of Ontario Regulation 856/93 made under the Medicine Act, 1991. The doctor denied this allegation.

The patient’s physician referred her to a Hamilton hospital for a biopsy of her swollen lymph nodes to check whether she had cancer. The doctor, a staff interventional radiologist, performed the third biopsy in August 2014, considering that the first and second biopsies were inconclusive.

The panel of the College of Physicians and Surgeons of Ontario accepted the evidence of the following witnesses: the doctor; the expert witness he brought in to offer evidence on the impacts of anesthetic medications such as midazolam and fentanyl on memory, recall and perception; the patient; and the patient’s fiancé at the time.

The panel found that, based on the totality of the evidence, the College of Physicians and Surgeons of Ontario had not proven on a balance of probabilities that the doctor had touched the patient’s breast as described and had not proven the allegation of professional misconduct through sexual abuse and through disgraceful, dishonourable or unprofessional conduct.

The panel concluded that the patient was a credible witness to the extent that she honestly believed that the doctor had touched her breast but was not reliable given that there were numerous inconsistencies in her testimony and an inability on her part to recall or to correctly recall many of the day’s events. According to the panel, the patient’s testimony at times stated that she had no memory of the events, while at other times provided unclear or inaccurate recollections regarding what happened before, during and after the events in the procedure room.

The panel determined that the patient, even before she was administered midazolam, failed to recall any other events except when she described going to the procedure room and lying face-down on the procedure table with her left arm extended for a certain length of time before the doctor cleansed her back.

The panel accepted that midazolam has known effects on memory, recall and perception, according to the evidence of the expert witness, and that this medication may have compounded or augmented the underlying deficit in the patient’s memory or her ability to remember certain occurrences. However, the totality of the inconsistencies affected the panel’s findings regarding the patient’s ability to remember and to recall the events and thus her reliability as a witness.

The panel acknowledged that during the process the patient’s breast was likely touched. She had testified that her breast was touched thrice, which the panel found consistent with the procedure of putting on or removing three ECG stickers and/or leads from the patient’s chest, including under her left breast.

The panel therefore decided that this was a case where the patient mistook who had touched her chest and the purpose for such and misinterpreted the day’s events, and not a case in which the patient had imagined or hallucinated events that did not happen.