Court reverses watchdog decision; doc can work without restrictions as case heard

TORONTO — A doctor accused of sexually abusing a patient will work without restrictions while his case is heard by Ontario’s medical watchdog, a court ruled Monday, reversing a decision by the regulatory body to place constraints on the gastroenterologist’s practice.

The College of Physicians and Surgeons of Ontario imposed temporary restrictions last month on Dr. Robert Fingerote as it probes an allegation that he inappropriately touched a patient’s breasts while listening to her heartbeat.

The college argued the measures were applied as part of its mandate to protect the public.

But Fingerote’s lawyer argued the constraints — which included that the doctor not be alone with patients and signs be posted in his office stating that he is under investigation — were premature given that the case involved only one allegation.

“This is and should be an extraordinary measure,” Jaan Lilles told a panel of three judges on Monday, noting that his client has denied any wrongdoing.

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A lone allegation in an otherwise spotless career should not be enough to restrict a doctor’s practice, Lilles argued.

“If the bar is set here, every physician should have a chaperone from the top,” he said.

A lawyer for the college argued that in such cases — where the allegation of sexual abuse is not historical, not clinical in nature and does not involve a consensual relationship — a lone allegation should be enough to restrict a doctor’s practice while awaiting a hearing from the regulator’s disciplinary committee, which will ultimately decide on the case.

Peter Wardle argued that at this early stage, the college’s inquiries, complaints and reports committee was right to take the patient’s allegation at face value, adding that the strength of her case and the merit of her allegation would be weighed later.

He said the college’s inquiry committee had concluded that if Fingerote allegedly abused one patient, he could have done the same with another. Wardle noted, however, that in the committee’s reasons for placing restrictions on Fingerote’s practice, it specifically said it opted not to temporarily suspend the doctor’s licence.

“They’ve clearly struggled with what to do here,” Wardle said of the inquiry committee.

Justices Edward Then, Fred Myers and Wailan Low, who heard arguments from both sides, ruled in Fingerote’s favour and said written reasons would follow.

Before delivering the oral decision, Myers acknowledged the landscape in which the case takes place.

“We’re in times of heightened public awareness of sexual abuse,” he said, adding that allegations in cases where there is a power imbalance, like a doctor-patient relationship, draw heightened scrutiny.

Nicole Thompson, The Canadian Press