Law Times

Law Times • OcTOber 23, 2017 Page 5 www.lawtimesnews.com 'Usually, it's an uphill battle' Legal fight over penalty for doctor back to court BY GABRIELLE GIRODAY Law Times A prominent case of a doctor disciplined for improperly sexually touching his patients has been granted leave to the Ontario Court of Appeal to be heard Nov. 27. The move comes after the province introduced changes to penalties doctors face if they are found to be sexually abusing pa- tients, after public outcry about the circumstances of the case. In College of Physicians and Surgeons of Ontario v. Peirovy, the regulatory body for medical doctors appealed the penalty imposed on a walk- in clinic doctor, Javad Peirovy, after six female patients com- plained of inappropriate sexual touching during medical exam- inations in 2009 and 2010. In 2015, a discipline com- mittee for the college found that Peirovy had sexually abused four patients and it suspended his licence for six months. The committee ordered Peirovy to take additional train- ing, pay $64,000 toward therapy for the victims and another $35,000 toward costs. However, the college disagreed, saying Peirovy's licence should have been revoked. Miles Obradovich, owner of Obradovich Law, said via email that the issue at the centre of the appeal "is whether the para- mount principle of protection of the public in the context of reduced tolerance for sexual in- teraction by doctors with their patients warrants a departure from the range of penalty previ- ously given for this type of be- haviour." He added, "The recent pas- sage of the Protecting Patients Act, 2017, S.O. 2017, c.11, which increases penalties for this type of behaviour signals a change in what may be considered an ap- propriate penalty." According to the 2017 rul- ing, the committee "dismissed the inference that the pattern of behaviour indicated predatory intent or uncontrollable deviant urges, and therefore a serious aggravating factor." However, Justice James Ramsay of the Ontario Supe- rior Court of Justice Divisional Court disagreed and pointed out problems with the commit- tee's findings. "First, the number of of- fences was itself aggravating, without predatory intent and deviant sexual urges. Second, in view of the finding on the liabil- ity phase that the Respondent deliberately touched the four complainants in a way that an objective observer would find to be sexual and in accepting the complainants' evidence that the touching was, to them, 'bla- tantly sexual' there is no line of analysis that could reasonably lead the tribunal to conclude that the Respondent's awkward, unskilled and non-empathic manner was a factor in under- standing his abusive behaviour or that it could reasonably infer that he was genuinely and com- pletely unaware of the ways in which his behaviour in relation to his patients was in fact abu- sive," said the ruling. Ramsay then allowed the col- lege's appeal, nixed the penalty imposed by the committee and sent it back to the committee again regarding a revised pen- alty. "Public confidence in the profession is not a 'shifting standard.' Rather I think that community tolerance for sexual abuse by doctors has lessened," said the decision. "The public's confidence in the medical profession de- mands more from the disciplin- ary process than recent sexual abuse discipline cases suggest. In the case of sexual touching of breasts of multiple female patients under pretense of a medical exam, I would expect the Committee to be debating whether to revoke the member's registration or impose a suspen- sion measured in years, as op- posed to months." A spokeswoman for the Col- lege confirmed that the matter is scheduled to be heard at the Court of Appeal for Ontario on Nov. 27. "While the Divisional Court commented that it would expect the Discipline Committee to be debating a suspension measured in years as opposed to months, legislative change has overtaken the Court's comments," said a factum filed on Sept. 15. "On May 30, 2017, the Pro- tecting Patients Act, 2017, was enacted. Revocation is now stat- utorily mandated for any physi- cian who engages in touching of a sexual nature of a patient's breasts, as the Appellant did to four of his patients." The factum states that the decision does not ref lect a zero- tolerance approach for sexual abuse by doctors and hurts pub- lic confidence in the profession. Gary Srebrolow, partner at Blaney McMurtry LLP and chairman of the health law group at the firm, says the way cases like Peirovy's are being treated is changing, pursuant to Bill 87. "I think [the courts are] go- ing, 'You know what? That's a change that's coming . . . just be- cause this case happened before the law came into effect, we're not waiting for the law.'" Srebrolow says Peirovy's case is unique. "Usually, it's an uphill battle because you have this discipline panel. They're independent, but they're aligned with the college and usually, if anything, these panels are more difficult on members," he says. LT NEWS Gary Srebrolow says the way the public views the discipline of doctors who sexu- ally abuse patients is changing. Visit our new website to find the latest in Ontario legal news, opinion, videos and expert commentary. Find the legal content you're looking for faster with enhanced navigation. A FRESH NEW LOOK www.lawtimesnews.com Join our 55,000 monthly visitors and read respected content on any device. Untitled-5 1 2017-10-18 10:26 AM

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