Production order issued over hospital records for complaint that doctor sexually touched nurse

In College of Physicians and Surgeons of Ontario v. Luthra, 2026 ONPSDT 30, the complainant nurse worked at a hospital with a registrant of the College of Physicians and Surgeons of Ontario. 

The complainant alleged that: 

• The physician made sexual remarks, put his hand down her pants, and touched her vagina over her underwear while they were both in a patient’s room after she administered medication 
• She was wearing a mask but no gown during the incident 

The physician denied the allegations. The college referred the matter to the tribunal. 

Motion for third-party records

In a motion for the production of third-party records, the physician sought the hospital records of the now deceased patient, who was supposedly present during the alleged assault. Given the patient’s death, the physician provided notice of this motion to his child.

The physician alleged that the records, which could help narrow down the relevant timeline, were likely relevant because: 

• The complainant would have been wearing a gown over the waistband of her pants because the patient’s room was under contact precautions requiring full personal protective equipment 
• The complainant, who initially suggested that the incident happened the month following the patient’s death, gave contradictory and/or shifting accounts of when it occurred 
• While the complainant claimed that the patient was comatose or unresponsive, the patient was not comatose and would likely have reacted if the incident had happened in his presence 

Given the significance of these factual questions to his defence, the physician asserted that producing the records would serve the interests of justice because his interest in defending himself against the serious allegations outweighed the patient’s privacy interests. 

The college countered that the records, which concerned collateral issues, were not likely relevant. 

Alternatively, if the records satisfied the likely relevance threshold, the college argued that permitting the tribunal to review or produce them would not serve the interests of justice because the patient’s privacy interests outweighed the records’ value. 

Hospital records found likely relevant

In granting the production order, the Ontario Physicians and Surgeons Discipline Tribunal found the records likely relevant and potentially of high probative value. The tribunal concluded that producing and reviewing the records would serve the interests of justice. 

In reaching this conclusion, the tribunal pointed to: 

• the records’ relevance to the most serious allegation and the credibility and reliability of the complainant’s evidence about it 
• the weak concerns regarding privacy, dignity, and stereotyping, given that patients could reasonably expect the use of their records in litigation 

Section 42.2 applied

Given the provision’s text and context and the secondary purpose of protecting patient privacy, the Ontario tribunal ruled that s. 42.2 of the Health Professions Procedural Code, Schedule 2 to Ontario’s Regulated Health Professions Act, 1991, applied to any request for third-party records, as long as there was a reasonable expectation of privacy. 

The tribunal held that the s. 42.2 analysis applied here due to a reasonable expectation of privacy in the medical records. The tribunal noted that the parties did not argue that the patient’s death impacted the analysis. 

The tribunal saw clear and case-specific information that went beyond the types of prohibited speculation identified in s. 42.2. 

Production did not pertain to collateral issues

The Ontario tribunal rejected the college’s argument that the requested production concerned collateral evidence.

The tribunal explained that the physician sought evidence-in-chief regarding the incident itself, specifically its timing, the mental state of another person present in the room, and the complainant’s attire. 

The tribunal added that evidence would not necessarily be inadmissible or irrelevant merely because it concerned collateral matters. 

Previous disciplinary matters

Here are some other recent disciplinary decisions involving medical and dental professionals in Ontario. 

The Ontario Divisional Court issued a June 12 decision affirming disciplinary decisions to revoke the licence of a dentist and impose a $451,461.61 cost award against him, based on its findings that he had sex with two employees while they were his patients. 

The Royal College of Dental Surgeons of Ontario’s Discipline Committee made a Jan. 30 decision holding that permanently removing a former dentist found guilty of sexual assault from the practice of dentistry would meet the regulator’s obligation to protect the public. 

According to a decision dated May 7, 2025, a registrant admitted before the Ontario Physicians and Surgeons Discipline Tribunal that his acts of repeatedly following 12 girls with his vehicle and publicly masturbating in the line of sight of an adult woman amounted to professional misconduct.

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