On September 13, 2019, on the basis of uncontested facts and a plea of no contest, the Discipline Committee found that Dr. Rodion Andrew Kunynetz committed an act of professional misconduct, in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
Dr. Kunynetz received his medical degree from the University of Toronto in 1977 and completed his residency at the University of Ottawa. He was certified as a dermatologist by the Royal College of Physicians andvSurgeons in 1982. For many years, he acted as an assessor in dermatology for the College of Physicians and Surgeons of Ontario. Dr. Kunynetz carried on private practice in dermatology in the Barrie community from 1983 onwards. He serviced patients not only in the Barrie and Simcoe County area, but also from Collingwood, Midland, Penetanguishene, North Bay and Sudbury.
At the relevant times, Dr. Kunynetz maintained a very busy office practice. He generally saw 65 to 70 OHIP patients per day, as well as 12-15 patients per day participating in clinical trials. He typically worked from 7:15 a.m. until 6 or 6:30 p.m. Patients typically experienced long waits in the waiting room before seeing the doctor. Accordingly, Dr. Kunynetz had a very busy practice with a large number of patients he saw daily. He developed an abrupt communication style in the course of examining patients.
Dr. Kunynetz does not contest that, in respect of multiple patients, he engaged in disgraceful, dishonourable or unprofessional conduct in that he moved or removed their clothing, in the course of clinical examinations, without providing adequate warning or explanation of what he was doing, and without obtaining adequate consent from the patients. The conduct included pulling up patients’ shirts, moving brassieres and underwear. As a result of this conduct, Dr. Kunynetz’ patients were left feeling upset and uncomfortable.
Dr. Kunynetz admits that, at the time of the misconduct in question, he had previously been provided with material from the College as a result of another patient complaint, emphasizing the importance of explaining to a patient ahead of time the nature and reason for any portion of a physical examination, particularly if the actions are relevant to, or involve, sensitive parts of the body. Dr. Kunynetz received the material from the College in 2009. Four of the eight patient encounters occurred following his receipt of the material.
- the plea of no contest pertains to eight patients, seen in different appointments between 1996 and 2015;
- Each of the patients was referred to Dr. Kunynetz for the examination of skin lesions (including mole checks for certain patients), which necessitated a dermatological examination of their skin. The patients were aware that their skin was to be examined;
- In the course of clinical examinations of the patients, Dr. Kunynetz moved clothing to visualize and examine their skin. Dr. Kunynetz had a medical reason to examine the skin underneath the clothing;
- Dr. Kunynetz does not contest that, prior to moving patients’ clothing, he should have provided a more adequate explanation as to the nature of the examinations and how he intended to conduct them, to avoid any surprise, misunderstanding or patient distress, and to ensure adequate consent.
FACTS ON PENALTY
Dr. Kunynetz has already been the subject of a lengthy College discipline hearing which addressed, amongst other things, allegations of moving clothing without adequate warning, allegations that are similar to the facts in this case.
The Prior Hearing – 2015 Notice of Hearing
In July 2015, the Inquiries, Complaints and Reports Committee (“ICRC”) referred allegations of sexual abuse with respect to four patients to the Discipline Committee. The principle allegation, in relation to two patients, was that Dr. Kunynetz had engaged in sexual abuse by rubbing or pressing his genitals against them during dermatology examinations. The 2015 Notice of Hearing also alleged that Dr. Kunynetz had engaged in sexual abuse by inappropriately touching a third patient’s breasts. Finally, the Notice of Hearing alleged sexual abuse or disgraceful, dishonourable or unprofessional conduct, for three of the four patients, in failing to provide appropriate privacy to patients, and in moving clothing without adequate warning and consent.
In September 2015, the ICRC referred an additional allegation of breach of an interim order to the Discipline Committee. The ICRC imposed an interim suspension of Dr. Kunynetz’s certificate of registration effective October 1, 2015. Dr. Kunynetz remained suspended on an interim basis during the liability and penalty phases of the hearing, i.e. from October 1, 2015 through to February 20, 2018.
The liability hearing on all of the above-described allegations proceeded over 37 days from January 6, 2016 through to July 12, 2016.
With respect to the eight patients described in the current case, two testified as similar fact witnesses at the first discipline hearing and gave evidence regarding (among other things) how Dr. Kunynetz moved their clothing during skin examinations. At the time of the first hearing, all of the current complainants had complained to the College. The complaints of the current complainants were ultimately referred to discipline in Notice of Hearing dated April 28th and December 18th, 2017.
The Discipline Committee released its reasons on March 21, 2017. The panel dismissed all of the allegations of sexual abuse, with the exception of a finding that Dr. Kunynetz had engaged in sexual abuse of one patient by touching her breasts during the course of a dermatological examination. The panel also found that Dr. Kunynetz engaged in disgraceful, dishonourable or unprofessional conduct by moving patients’ clothing without adequate warning or explanation and by allowing his abdomen to touch two patients. Finally, the panel found that Dr. Kunynetz breached an interim order of the ICRC
With respect to the allegations of moving patients’ clothing, the Discipline Committee found as follows:
Dr. Kunynetz said that he commonly moved or shifted items of clothing such as bra straps to view the skin beneath, or lifted clothing that obscured a portion of the skin that needed to be inspected. He said that he usually gave the patient a reason for this, but he also admitted that his explanations were brief and often occurred during the displacement of clothing. The Committee concludes that the removal of clothing occurred during the process of a clinical examination, and that Dr. Kunynetz was justified in needing to examine the skin underneath the clothing. Thus the context in which this occurred was not one in which "viewed in the light of all the circumstances, the sexual or carnal content of the assault (or actions) was visible to a reasonable observer." Thus, Dr. Kunynetz's actions do not meet the test articulated by the Supreme Court of Canada in R. v Chase (1087) 2 S.C.R. 293 with respect to sexual assault. The Committee finds that Dr. Kunynetz's actions in moving clothing does not constitute behaviour of a sexual nature and is therefore not sexual abuse.
The material that had been provided to Dr. Kunynetz by the College investigator emphasized the importance of explaining to a patient ahead of time the nature and reason for any portion of a physical examination. While this may not constitute formal seeking of consent in the way in which this term is usually used, the process of explanation demands that the physician take reasonable steps to ensure that the patient comprehends why something is being done, particularly if the actions are relevant to, or involve, sensitive parts of the body. This was clearly not done before the shifting of clothing performed by Dr. Kunynetz.
The Committee finds that the absence of adequate warning or explanation to Patients A and D by Dr. Kunynetz before moving or removing their clothing, constitutes conduct that would be reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
The penalty hearing proceeded over four days in July and August, 2017. In reasons released on February 20, 2018, the Discipline Committee revoked Dr. Kunynetz’s certificate of registration.
The Discipline Committee found that the mandatory revocation provisions of the Health Professions Procedural Code applied retrospectively to the finding of sexual abuse.
Dr. Kunynetz appealed the findings and penalty to the Divisional Court. In a judgment dated July 23, 2019, the Divisional Court quashed the sexual abuse finding made by the Discipline Committee and quashed the finding of disgraceful, dishonourable or unprofessional conduct based on Dr. Kunynetz allowing his abdomen to touch patients. The Divisional Court upheld the Discipline Committee’s finding of disgraceful, dishonourable or unprofessional conduct in moving patients’ clothing without adequate warning or explanation as well as the finding that Dr. Kunynetz breached the interim order.
In the circumstances, the Divisional Court did not refer the matter back to the Discipline Committee for a further hearing on penalty, but instead quashed the revocation order and the reprimand, and held that no further suspension should be imposed, noting that Dr. Kunynetz had been vindicated of all of the serious allegations. The Court reasoned as follows:
[153] As indicated above, the Court is dismissing the allegation of sexual abuse of Patient B and dismissing the finding of professional misconduct with respect to Patients C and D. The usual remedy, when an appeal of a decision of an administrative decision maker is granted, is to remit the matter to the decision maker for re-determination of the issue of liability or for re- determination of penalty of the remaining findings. That respects the legislative policy to leave such decisions to the administrative body.
[154] The following are unique circumstances of this case that warrant the unusual remedy set out below:
(a) The Notice of Hearing originated in July 2015 which is four years ago. Assuming the same five members are available, sending it back for a fresh penalty hearing on the remaining findings will likely take at least six months. Sending it back for a fresh liability hearing before a new panel on the allegations involving Patient B will likely take much longer. The single allegation involving Patient B occurred in August 2008, eleven years ago.
(b) The Appellant, the College, the complainants and the public all share an interest in finality. It would be unfair to the witnesses to have to participate in another hearing on the merits of the allegation of sexual abuse with respect to Patient B, particularly because she made the original complaint in 2008 and since then has been involved in both the College proceedings and the criminal proceedings. The evidence of witnesses has likely deteriorated over that lengthy period and, as a result, the prospects of the College providing “clear, convincing and cogent evidence” are dim.
(c) The Appellant was under suspension from October 1, 2015 to February 20, 2018 when the penalty decision was released. Since then he has been subject to the revocation order. The period of suspension of almost 28 months and the 17 month period of revocation totals 45 months. We consider it unlikely that a penalty greater than 28 months or 45 months will be imposed with respect to the remaining findings of removal of clothing without warning or consent and two breaches of an interim order.
(d) Other than the original complaint from Patient B, the Appellant had no prior record of discipline which is a mitigating factor in assessing penalty.
(e) In her evidence during the hearing as to penalty, the Appellant’s wife described the enormous toll that the proceeding had had on the Appellant personally and professionally as well as on her and their children. 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.
(f) The College has a vested interest in sustaining the “usual remedy” that matters of liability and penalty are sent back. The outcome of substitution in this case is exceptional.
(g) The College has a vested interest in sustaining the “usual remedy” that matters of liability and penalty are sent.
As set out in the judgment of the Divisional Court, Dr. Kunynetz was suspended for approximately 28 months under former s.37 of the Health Professions Procedural Code, and was also subject to a period of revocation for 17 months, for a total of 45 months.
The Current Interim Suspension Order
Although the Order of the Divisional Court reinstated Dr. Kunynetz’s certificate of registration as of July 23, 2019, Dr. Kunynetz remained subject to an interim suspension of his certificate of registration, imposed by the ICRC on June 8, 2017, under section 25.4 of the Code, in respect of this hearing.
Remedial Work Undertaken by Dr. Kunynetz
In June 2016, Dr. Kunynetz completed the Understanding Boundaries and Managing Risks Inherent in Doctor-Patient Relationships course at Western University.
DISPOSITION
The Discipline Committee ordered that:
- Dr. Kunynetz attend before the panel to be reprimanded.
- Dr. Kunynetz pay costs to the College in the amount of $6,000.00 within thirty (30) days of the date of this Order
Terms and conditions imposed on certificate by: Inquiries, Complaints and Reports Committee
