PHOTO: Navi, left, Elizabeth Adamou, centre, and Candice Jones, right, each complained to the College of Physicians and Surgeons of Ontario (CPSO) about Dr. David Gerber more than a year ago. (Albert Leung/CBC)
Three Ontario women are speaking out after making complaints regarding their former gynecologist to the College of Physicians and Surgeons of Ontario. They say that long delays, intimidating legal demands, mischaracterization of complaints, and a lack of communication have left them wondering if the college is acting to protect patients, or the doctors they are supposed to regulate.
Each of the three former patients filed their complaints with the College of Physicians and Surgeons of Ontario (CPSO) more than a year ago, and as they’ve waited for investigations to conclude and hearing dates to be set, more patients have come forward with their own complaints about the same physician.
In late December 2021, the CPSO disclosed that Dr. David Gerber of Meridia Medical in midtown Toronto would face complaints from 10 patients at a disciplinary hearing, up from the six previously announced in 2020.
The college alleges that Gerber “engaged in disgraceful, dishonourable or unprofessional conduct,” including but not limited to his communication, failing to explain what an examination would involve, failing to obtain informed consent and failing to demonstrate adequate sensitivity.
Howard Winkler, Gerber’s lawyer, told CBC News that “two leading independent medical experts have carefully reviewed each complaint and the related medical records. Both experts agree that the care Dr. Gerber provided met or exceeded every clinical standard and did not deviate from the usual and expected practice.”
The CPSO will not comment on any specific complaint or hearing. CBC News previously reported that the college had expected to hold the hearing in 2021, however a date has not yet been set.
‘My civic duty to warn other women’
Navi, who asked CBC News not to publish her last name for fear of online harassment, alleges that her complaint against Gerber constitutes a sexual boundary violation, as defined by the CPSO.
The college says a boundary violation occurs when a physician does not establish or maintain the limits of a professional relationship with their patient. Sexual boundary violations can include a variety of activities, including failing to obtain consent before conducting an examination.
Navi is among the 10 patients listed in the college’s notice of hearing, and says the fact that the college is not pursuing her complaint as a sexual boundary violation has shaken her faith in the system.
“I’m doing this as my civic duty to warn other women,” she said. “There is no protection available to us. And the protection that does say that it’s there, it’s not functioning. It’s broken.”
The three women interviewed for this story each want their complaints pursued as sexual boundary violations. CBC News does not know the details of all 10 complaints referred for a disciplinary hearing.
Winkler, Gerber’s lawyer, says that the allegation the doctor committed a sexual boundary violation is false. He wrote that “the CPSO, after careful investigation which included the review of the complainants’ medical charts, the interview of the complainants, the interview of nurses and others and having obtained numerous expert reports,” determined that complaints of sexual boundary violations did not warrant a referral for a disciplinary hearing.
‘The only reason is to intimidate’
Candice Jones, who complained about Gerber in January 2021, is not among the 10 patients listed in the college’s notice of hearing. She’s waited 14 months for the college to deal with her complaint.
Ten months after filing her complaint, she received an 11-page letter from the CPSO demanding “a complete copy,” of any communications she had “with anyone in relation to Dr. Gerber.” Should she not comply within seven days she could face a fine of $25,000 or be found in contempt of court, according to the document.
Jones said the request made her feel overwhelmed, and that she was unsure how to comply with such broad requirements while also maintaining a semblance of privacy.
“Am I going to share all the details of how what has happened to me has impacted my life and the conversations I’ve had with other people?” she asked.
“It’s hard to not get completely defensive and just feel like I’m the one under investigation,” Jones said.
“They’ve had months, over a year to ask for this information, and all of a sudden it’s of immediate importance,” said Elizabeth Adamou, whose complaint about Gerber was one of the original six referred for a disciplinary hearing in 2020.
She received a similar request to Jones’ in August 2021, though hers had no mention of legal consequences.
“I think when they demand it in that manner, it makes you think that the only reason is to intimidate,” she said.
‘Let’s be realistic’
The way the CPSO handles patient-complainants has been criticized before. In the last 31 years, three independent inquiries have examined how colleges that regulate health professionals in Ontario treat some complainants. Each has highlighted an imbalance in the power wielded by patients and physicians.
Those who make a complaint to the CPSO participate in the process as a witness, not a plaintiff.
That means they do not get their own lawyer, and have very limited access to information about how or if things are moving forward.
Physicians, on the other hand, get broad access to information, the way a defendant would in a trial. Their legal representation is provided by the largely publicly funded Canadian Medical Protective Association, which hires lawyers from some of the top firms in the nation.
“Let’s be realistic about who actually can move inside the guts of this system, and be able to influence it in a way that’s going to produce the best possible outcomes,” said Sen. Marilou McPhedran, a lawyer who chaired all three task forces and was named to the senate in 2016.
“It’s not the patients,” she said.
‘It feels intentional’
The legislation that governs the CPSO requires that it deal with a complaint within 150 days of filing, though it does allow for extensions if the patient and physician are properly notified.
After that deadline came and went for Jones without any update from the college, she took it upon herself to contact them and was surprised by what she heard. They had sent her an email, they said, on day 150.
“To be given this statement that ‘oh ya we sent it to you, you know, on the very last day possible,’ when I don’t even have a record of even receiving it, it doesn’t instill a lot of trust and confidence,” Jones said.
‘I’d really like to give them the benefit of the doubt,” she said, “but it feels intentional.”
Jones was told in mid-December that there would soon be a meeting to decide on her case and that she would “receive the Committee decision within eight-to-10 weeks.” The 10 week deadline was February 24.
Similar concerns raised in 2018
On March 17, the college informed Jones that after reviewing her case it would “issue advice to [Gerber]” regarding thoroughly obtaining consent, explaining procedures, preparing patients for pain and discomfort and being sensitive to patients’ expression of pain.
“This is an educational disposition,” it said, “designed to offer the physician some guidance regarding an area of practice in which the Committee has noted concerns, to assist the physician in improving future practice.”
The college has previously engaged with Gerber citing similar concerns: in 2018, it issued him an in-person caution noting “Dr. Gerber has been the subject of several previous complaints to the college raising issues about his communications and painful examinations,” and that he “was also cautioned in writing about ensuring proper communication with patients, including properly explaining the procedures to be performed.”
It went on to say, “The Committee was concerned that despite his previous involvement with the college on these issues, and attempts at remediation, Dr. Gerber was once more the subject of a complaint raising similar concerns.”
‘I don’t have anything to hide’
Much of the correspondence Adamou, one of the original complainants, has received from the college also includes requests for her to not communicate with other complainants.
“In order to maintain the fairness and integrity of the college processes, it is important that you not discuss this proceeding or your evidence with any other witnesses or potential witnesses,” the CPSO wrote to Adamou on Feb. 9.
“I’ve ignored that because I’m 110 per cent confident that I don’t have anything to hide,” Adamou said, adding that isolating witnesses in this way only serves to disadvantage them in a process that is unequal from the outset.
“The [CPSO] website waxes poetically about ‘they’re there to help you,'” Adamou said, “and the reality is no one informs you of your rights whatsoever.” What is provided is, “haphazard, you might not get it at all,” she said.
In some cases, the CPSO offers to pay for three hours of independent legal advice, so complainants can better understand the process. When asked, the CPSO did not answer who is offered this service, or when.
Jones was notified of the program the day before she received the college’s request for her communications, and the deadline to respond within seven days. To be able to clear your schedule and find a lawyer who is immediately available to have that conversation isn’t realistic, Jones said.
“The college tries, in every case, to provide support to every complainant who comes forward,” said Carolyn Silver, lead prosecutor at the CPSO.
“There is always room for improvement,” she said, “We always want to do better.”
Common for witnesses to be told not to speak to each other: CPSO
Without speaking to any case specifically, Silver noted that requests for witnesses not to speak with each other are commonplace, in order to avoid any suggestion that the witnesses have affected each other, or each other’s memories.
“There’s a whole body of case law on that,” she said.
“I have done these hearings for over 20 years now at the college, they’re very difficult cases for complainants. It is not pleasant to be in a hearing,” she said. Being cross-examined, challenged on their memory, and facing suggestions that they are fabricating are all possibilities.
In a January email, Dr. Gerber’s counsel said “the CBC have clearly been conscripted by the malicious efforts of a small number of co-ordinated individuals, intent on destroying the reputation of Dr. Gerber for some perceived wrong towards them.”
The women interviewed for this story deny those allegations.
“Being in touch with [other complainants] enables us to inform each other and let each other know what their rights are,” Adamou said.
“There is no one who understands what I’ve been through like a person who has been through the same thing with the same physician, and there’s many of us out there.”
Complaints and cautions
According to their annual report, the CPSO received 3,483 complaints about physicians in 2020, and had a backlog of 1,104 rolled over from the year prior.
That year they dealt with 3,329 of those complaints, opting to take no action on 34 per cent of them and referring only one per cent for a disciplinary hearing. In less serious instances the college could assign the physician classwork, or take other steps like issuing a formal caution.
There is no record of involvement with the college prior to 2018 on Gerber’s CPSO profile. The college does not disclose how many complaints have been made against Gerber in the last two years, only that 10 have been referred for a hearing.
With files from Albert Leung and Judy Trinh