A Toronto pediatrician who has faced sexual misconduct allegations three times dating back to 1979 is still practising while awaiting his latest College of Physicians and Surgeons penalty hearing in January.
He pleaded no-contest in 2003 to allegations of inappropriately touching a 17-year-old patient’s breasts and genitals. The College suspended him for nine months and put restrictions on his licence, allowing him to see female patients only with a chaperone present.
In 2008, he faced a similar allegation relating to a 9-year-old patient, but a disciplinary committee ruled the allegation had not been proven. A criminal charge was laid in the matter and later withdrawn.
In that case, the college’s disciplinary committee this year found Noriega “inappropriately rubbed the clitoris of a teenage female patient during a medical appointment,” according to the Nov. 3 decision posted on the College’s website.
A criminal charge was also laid in the case, but later dropped.
Noriega successfully appealed the ruling. The Court found the hearing didn’t have a “critical examination” of his denial and reversed the decision to revoke Noriega’s licence. It directed he practise with the gender restrictions previously imposed on him by the College.
In addition to these sexual abuse and impropriety findings, Noriega was also suspended for six months in 2013 because the College said he did not always have the required female chaperone from July 2009 to February 2010 and misled a college investigator.
He has been back on the job since February.
That Noriega is still practising after violating the restriction on his licence is “unbelievable,” said medical malpractice lawyer Amani Oakley.
“There’s a very valid reason for the College to suspend his licence until the hearing.”
Noriega, who is also appealing the latest college decision, did not respond to multiple messages from the Star requesting comment.
His penalty hearing will still be held Jan. 7. After a disciplinary action is handed down, Noriega can file appeal documents with the Ontario Divisional Court, College spokesperson Kathryn Clarke wrote in an email.
“Dr. Noriega is appealing on the grounds that the Discipline Committee erred in its consideration of the evidence and erred in law,” Clarke said.
Noriega is one of 20 doctors in Ontario who currently have a gender-based restriction on their licence.
Ontario Health Minister Dr. Eric Hoskins recently ordered a review of the decades-old legislation, involving all 23 of the province’s regulatory colleges, as a result of the Star’s investigation of sexual abuse by doctors.
In the new hearing into the 1979 case held this spring, Noriega again denied allegations that he rubbed his 15-year-old patient’s clitoris until she orgasmed. His counsel argued that the allegation was “highly improbable” given the involvement of medical students and nurses in the practice, according to the disciplinary committee’s decision document.
The committee, however, decided that evidence presented supports that Noriega “would have had the opportunity to assault the (patient) in the manner in which she alleges.” On a balance of probabilities, the committee accepted the allegations of sexual impropriety against Noriega.
In the decision document published by the committee, it states the patient who brought the complaint testified that she started seeing Noriega in 1978 at a clinic in a hospital. She grew up in a neighbourhood she described as “pretty rough” with a single mother suffering from a mental illness, leaving her to care for her younger sibling often, according the disciplinary decision document. It also states she said she was sexually abused by her stepfather for five years and disclosed this abuse to Noriega.
The document states the patient testified that the abuse at the hands of Noriega happened after he said he needed to check if she was sexually active.
“She knew what was happening was wrong but did not say anything because he was the doctor,” the document reads.
After that incident, she did not return to the clinic but kept a package of birth control prescribed to her by Noriega in case she decided to pursue a complaint in the future, according to the document.
The patient didn’t tell anyone what happened because she “felt embarrassed and did not think she would be believed,” reads the summary of her testimony in the decision document.
Clarke explained that this hearing looked into a finding of “sexual impropriety” rather than “sexual abuse” because the incident occurred when doctors were regulated under the Health Disciplines Act. This act gave disciplinary committees the discretion to revoke a a medical licence, but had no mandatory revocation requirement like those that exist now.
“Zero tolerance” of sexual abuse by health professionals was introduced in 1994. The Regulated Health Professionals Act calls for mandatory revocation of a licence for certain sexual acts with patients. Those acts include sexual intercourse, oral to genital contact, genital to genital contact, genital to anal contact and masturbation.
Medical malpractice lawyer Wendy Mandel Moore says “general legal principles” are why the old legislation would be used to guide this disciplinary matter, since Noriega is entitled to be judged by the laws that governed behaviour at the time the behaviour occurred.
“Of course, the doctor would have known that it’s inappropriate behaviour to do that to a 15-year-old child, and by today’s standards it sounds egregious that he wouldn’t be disciplined by the removal of his licence,” said Moore.
“I think physicians are provided far too much protection under the College system.”
With files from Theresa Boyle, Tim Alamenciak, Laura Armstrong
Sadiya Ansari can be reached at 416-869-4348 or at firstname.lastname@example.org