Tribunal rules suspension of doctor for sexual remarks an error
A Montreal gynecologist who said “thank you for the good time” after performing a vaginal exam on a woman about to give birth should not have been provisionally suspended, a tribunal has ruled.
In a Jan. 31 decision, the Tribunal des professions said the Collège des médecins du Québec made errors when in July 2022, it suspended Allan Climan, who has been the subject of multiple complaints regarding sexual comments.
At the time, the council suspended him pending a hearing on guilt, saying it was “concerned for the protection of the public if the respondent continues to practise his profession.” The immediate suspension of a medical professional's licence is an “exceptional measure,” the council said at the time.
Six months later, in January 2023, the council found Climan guilty of making an inappropriate sexual remark (his second such offence), of failing to abide by an order to have a woman present while examining patients, and of not updating the patient's file.
His penalty was imposed in December: a four-year suspension and a $7,500 fine.
Climan remains stricken from the college's roll of members, spokesperson Leslie Labranche told the Gazette.
“The tribunal's decision has no impact for the moment on his removal” because Climan is currently subject to the December suspension, she said.
“However, he is also appealing that decision,” Labranche added.
In March, Climan is expected to file a motion with the Tribunal des professions in an effort to be reinstated pending his appeal of the December suspension.
Climan, who obtained his licence in 1983, has a long record of disciplinary investigations. The council said that from 1989 to 2020, he was the subject of 11 such investigations.
In 2019, Climan was fined $2,500 and stripped of his licence for two years for making “vulgar and inappropriate” sexual remarks while examining a patient. Among other things, he told her: “You have a great little body, I can't wait to examine you and I'm sure you have a beautiful vagina.”
When he returned to work in August 2021, he was under orders to have a female chaperone present when examining patients.
The latest case occurred in April 2022, involving a woman who was about to give birth at the Jewish General Hospital. After one examination, a nurse reported hearing Climan say “thank you for the good time” as he removed his medical gloves. The patient told investigators she didn't hear the statement.
Climan has said it wasn't a sexual comment. He told the disciplinary council he uttered the words after he realized the patient had “the biggest pelvis I have ever seen.” That appeared to show the woman was not going to have a problem delivering her baby, he said.
The Tribunal des professions' 26-page ruling was a split decision.
Two judges, Érick Vanchestein and Jean Asselin, said Climan's provisional suspension should be voided. A third judge, Julie Veilleux, said the appeal should be denied.
In the majority decision, penned by Vanchestein, the tribunal said the disciplinary council made several errors.
For example, it “erroneously dismissed expert evidence without having analyzed its probative value,” the decision said, referring to one of Climan's expert witnesses — obstetrician Dawn Johansson.
The tribunal also found the disciplinary council failed to show that the provisional suspension was needed to protect the public.
Climan's recent “professional profile” can “rightly be questioned,” the decision said. “However, he is always presumed innocent of the alleged infractions and provisional (suspension) must not prematurely sanction a professional.”
In her dissenting opinion, Veilleux said the disciplinary council rightly found that Climan's record, including warning letters, justified its view that he should be suspended to protect the public.
“It goes without saying that if the same comments had been made by a professional without a history of the same nature and/or at a time other than immediately after a gynecological examination, the council could have considered that, at first glance, the comments were neither abusive nor of a sexual nature,” Veilleux wrote.