Doctor’s sexually explicit texts no grounds for dismissal: judge

Rosie Mullaley rmullaley@thetelegram.com
Published on June 14, 2013
Court decision

A St. John’s doctor who sent sexually explicit text messages to a woman minutes before performing surgery didn’t cross any professional lines, a Newfoundland Supreme Court judge has ruled.

As a result, Justice Carl Thompson dismissed an appeal filed by the woman’s then husband, who sought to quash a decision by the College of Physicians and Surgeons to not take any sanctions against Dr. Barry Rose.

Rose — chief of cardiology for Eastern Health — had been exchanging the texts with the woman on Sept. 1 and Sept. 2, 2010.

Rose was scheduled to perform cardiac catheterizations on several patients on those dates, and during a

20-minute break between procedures in a  doctor’s lounge, he exchanged several texts with his lover.

In some of the texts, he said:

“I’m going to see if someone can fill in for me. I’m weak.”

“You’re making it difficult for me to think of the poor lady on the table ... I will be fumbling about.”

“You can’t expect me to concentrate after a text like that.”

Rose also told her that he worried nurses might see his erection through his scrubs.

When James Hynes found the texts on his wife’s phone, he brought the complaint to the College of Physicians and Surgeons in October 2011.

Hynes believed it was conduct unbecoming a doctor and that Rose should be punished.

However, upon review, the college’s complaints authorization committee concluded that while Rose should not have done what he did, none of his patients were harmed. As a result, the committee said there were no reasonable grounds to discipline Rose.

“The committee was disappointed that Dr. Rose made comments in his text messages that were not in keeping with the highest expectation of his profession, and would advise Dr. Rose to refrain from making such comments in the future,” the committee’s decision read.

Rose — who is also an associate professor at Memorial University — was reminded that a senior physician in his position should be an example to others.

However, Hynes wasn’t satisfied with that decision and filed an appeal.

During the hearing on Thursday, Hynes’ lawyer, Randy Piercey said it would be an understatement to say Rose was distracted.

“People’s lives were at stake and he was worried nurses would see his erection,” Piercey said.

Piercey said it’s not the outcome of the surgeries, but the behaviour of the doctor that should be the focus.

“We hold doctors to higher standards,” he said.

The college’s lawyer, Paul Coxworthy, told the judge that the committee used the only objective evidence — whether or not the patients were harmed. Since the procedures were successful, he said, there was no grounds for dismissal.

Rose’s lawyer Peter Browne pointed out the texts between Rose and the woman were private and did not involve one of his patients.

“There was no way anybody was compromised by these texts,” he said.

Browne suggested Hynes had a hidden agenda.

“His motive was to embarrass Dr. Rose.

He’s upset with Dr. Rose and he’s upset with his ex-wife,” he said.

Browne said like other professionals, doctors have their minds on other things beforehand.

“But once they're in there, they put on their game faces,” Browne said.

Browne said it’s not a case of morality. He said there is no objective evidence of misconduct.

Thompson agreed the College’s focus on Rose’s delivery of service “is a justifiable and understandable approach.”

Thompson said since the text messages were private and did not happen during the delivery of care, there was no reason grounds to discipline Rose.

rgillingham@thetelegram.com

Twitter: @TelyCourt