A Barrie dermatologist was given his medical licence back Tuesday, after a court overturned findings that he committed professional misconduct by rubbing his large belly against female patients without warning.
Dr. Rodion Kunynetz had originally been found guilty in 2017 of professional misconduct by a panel of the College of Physicians and Surgeons of Ontario’s discipline committee for rubbing his “abdominal fat pad” against two patients without warning, apology or excuse. The panel also found he sexually abused a patient by touching her breasts without clinical justification. As a result, his licence was revoked.
Those findings were overturned by a three-judge panel at Divisional Court in a ruling released Tuesday. The judges took issue with the fact that the original college allegation against Kunynetz was that he had rubbed his genitals against the two patients, but that it was not proven.
This despite the fact Kunynetz underwent two examinations with urology experts — one hired by the defence, the other by the college — to chemically induce erections in Kunynetz and then simulate patient examinations to determine if indeed his penis could be felt against a patient’s leg.
After conflicting results from the two experts and after consulting photographic evidence from one of the procedures, the discipline panel could only conclude “that the impossibility of contact between the doctor’s penis and a patient’s skin (through clothing) was not established,” according to its 2017 decision.
The discipline panel instead found that there was evidence that there had been contact between the patients “and that part of Dr. Kunynetz’s lower abdomen at the level of his pelvis, and that the patients were distressed by this,” according to the 2017 discipline decision.
But as the judges pointed out in their ruling Tuesday, rubbing his belly against patients had never been an allegation levelled at Kunynetz by the college at his discipline hearing, and he had not been given the opportunity to mount a defence against it.
“The appellant takes the position that the committee punished him for being obese,” says the ruling by Justices Frances Kiteley, Robert Del Frate and Helen Rady.
“The question of disgraceful, dishonourable or unprofessional conduct by allowing contact between his abdominal fat pad and Patients C and D was never raised in the particulars of the allegations, in cross-examination or in closing submissions,” the judges wrote. “It surfaced only in the reasons for decision dated March 21, 2017. The appellant met the case as it was alleged. He had no opportunity to meet a significantly different allegation.”
The court also overturned the finding that he sexually abused a patient by touching her breasts without clinical justification; the judges concluded the discipline panel came to that conclusion through faulty analysis of the credibility and reliability of the evidence.
“We are disappointed that the court chose to overturn our discipline tribunal’s decision, however we respect the judicial process in Ontario,” the college said in a statement. “As always, we will continue to fulfil our mandate of serving in the public interest.”
Kunynetz’s lawyer did not immediately return the Star’s request for comment.
The court did uphold findings of professional misconduct against Kunynetz for moving or removing the clothing of two patients without adequate warning, as well as for twice breaching an order by the college that he could only see female patients with a chaperone present.
As a result of its findings, the court overturned the college penalty that Kunynetz’s licence be revoked. The judges noted that the usual course of action is to send the case back to the college’s discipline panel for a fresh hearing. But they noted that a new hearing would take months if not longer and that everyone involved, as well as the public, “share an interest in finality.”
The judges noted that Kunynetz has been off the job since October 2015, when he was initially suspended by the college pending the outcome of his discipline hearing, totalling 45 months. They found it’s unlikely a discipline panel would impose a suspension greater than that for the remaining findings that were upheld by the court.
Finally, the judges also took note of the impact the case has had on Kunynetz’s family, highlighting Kunynetz’s wife’s testimony at his penalty hearing before the discipline panel.
“She described the press reports as a ‘constant bombardment of ugliness.’ In the end, the appellant has been vindicated of all of the serious allegations. He and his family ought to be able to see a light at the end of the tunnel,” the judges wrote.
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Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant