Canada: Physician Sexual Assault – What Are A Victim's Options?

Last Updated: September 2 2019
Article by Jordan D. Assaraf

In the wake of changing norms and greater understandings surrounding sexual violence, there have been several recent high-profile claims of sexual assault against physicians – including Allan Gordon, a neurologist and director of the Wasser Pain Management Centre at Mount Sinai Hospital. Dr. Gordon has been accused of sexually assaulting several women in the course of his medical practice.

Trust is at the core of the intimate doctor-patient relationship, and public trust in physicians is vital to the integrity of the healthcare systems. When a doctor sexually abuses a patient, both the individual trust surrounding the particular relationship, and the public trust in the medical profession, are seriously violated. The harm done to the individual patient can be life-altering, and can have enduring effects.

Options for pursuing the justice a victim deserves.

In the event of a sexual assault by a doctor, a patient has several paths of recourse. She or he may make a complaint to the College of Physicians and Surgeons, which could ultimately result in professional sanctions for the doctor, including the loss of the license to practice medicine. The complainant may go to the police, and pursue a criminal charge, or choose to sue the doctor civilly.

In Dr. Gordon's case, the College of Physicians and Surgeons chose to close the cases pertaining to sexual assault, and not publicly acknowledge the allegations. Rather, it accepted Dr. Gordon's plea of "no contest" to the less serious offence of professional misconduct for failing to obtain a patient's "informed consent" for a pelvic exam. There was no admission of guilt, but 73-year-old Dr. Gordon agreed to resign and to never reapply for a medical license in Ontario or in any other jurisdiction.

In the College complaints process, the patient is not a party to the proceedings. Rather, she or he is merely a witness who can testify as part of the evidence-gathering process. This is also true of the criminal system. The complainant in a criminal sexual assault trial is also relegated to the role of witness. The case is brought by the Crown against the accused doctor, in the public interest. The victim generally does not have representation, and is not in any decision- making role in terms of the litigation.

By contrast, in the civil system, the complainant is the plaintiff. The plaintiff is represented by his or her own lawyer and brings the suit in his or her own name. The plaintiff has the power to direct the lawyer and make major decisions. In a civil lawsuit, the standard of proof is lower than in a criminal case. While in the criminal context the Crown must prove guilt beyond a reasonable doubt, in a civil case a defendant can be found liable on a balance of probabilities. That is, the plaintiff must prove that the harmful conduct more likely than not took place.

In addition to being a party to the legal proceedings in a civil case, a victim is also central to the legal remedy of such cases. While the criminal system is concerned with the accused's relationship to society, and results in criminal sentencing where the offender may be incarcerated, the civil system is based on the relationship between the two parties – the physician and the patient. As such, the remedy is financial compensation from the defendant to the plaintiff to address the harm caused by the defendant's behaviour. This comes in the form of a damage award that encompasses past and future care costs, loss of income, and pain and suffering caused by the assault.

Life-altring effects for patients who have been mistreated.

The effects of a sexual assault, particular as perpetrated by someone in a position of trust such as a doctor, can be wide-ranging and serious. A victim may require costly psychological or physical treatment. It is not unusual for the victim to have lost income from having to miss work, or to have lost his or her competitive advantage in the market because of disrupted schooling.

The possibility of financial compensation to address some of the tangible consequences of sexual violence means that a civil sexual assault lawsuit can go a long way toward enabling the victim to recover from the wrong committed against her or him. Such is the purpose of tort law – to return the plaintiff, as best as can be done, to the position that she would have been in had the wrong not occurred.

Choosing the option which most benefits the victim's well-being and journey to healing.

In addition to the practical benefits of a civil lawsuit, the centrality of the victim in directing the litigation can in itself be a healing experience. Sexual assault is a violation, an attack on an individual's dignity and autonomy. All forms of sexual violence are characterized by control – the assaulter steals, sometimes through violence, sometime through coercion or exploitation of trust, the victim's control over her or his own body and sexuality. While the litigation process can be gruelling, it can also be an opportunity for victims to regain some of the control, and some of the power, that has been taken from them by the experience of sexual violence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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