The Committee considered the allegations of each complainant separately. The Committee was not requested to and did not rely on the application of similar fact evidence to reach its decision.
The Committee considered:
• Is the testimony of each of the complainants credible? If not, the allegation regarding that complainant must be dismissed.
• Are the facts presented by each complainant in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in the place and under the conditions present when the allegations took place? In other words, does the testimony "hang together" and make sense?
• Is Dr. Deluco's testimony credible? If the panel believes the testimony of Dr. Deluco in respect to his denial of an allegation, then that allegation must be dismissed.
• Has the College persuaded the Committee, on the balance of probabilities, on the totality of the evidence, to the Bernstein standard of proof, that the events took place as alleged? A discipline hearing is not a credibility contest. Even if the member is disbelieved, this burden of proof must be met.
• The standard in Bernstein requires that proof of the allegations must be clear and convincing and based upon cogent evidence accepted by the Committee.
(b) Summary of the Evidence
The Committee heard the testimony of patient B, patient A, patient E, patient D and Detective Sergeant L on behalf of the College.
The Committee heard the testimony of Dr. Deluco for the defence. Multiple exhibits were filed including the clinical records of each of the above patients, photographs of Dr. Deluco's office, tapes of the messages left on the phone of patient B, maps of Sault Ste Marie, and an agreed statement of facts which included the notice of hearing and the decision and reasons of the Discipline Committee regarding allegations against Dr. Deluco heard by a different panel.
The hearing took place in two separated periods of time.
The Committee had the benefit of the transcripts of the first part of the hearing and reviewed these transcripts in their entirety prior to the hearing resuming on May 9, 2005.
They were reviewed individually as well as by the entire panel sitting together.
No discussion or deliberations occurred among panel members during the interval between the two parts of the hearing.
Several witnesses described the layout of Dr. Deluco's office.
There was a joint waiting room shared with other physicians on the same floor of the office building.
Dr. Deluco's secretary occupied a desk outside of the door to his examination rooms.
On that door was a posted notice required by the CPSO, following the referral by the Complaints Committee to the Discipline Committee.
There were two examination rooms, almost identical in size, décor and equipment.
Each had an examination table and a chair. There was a private office space as well as an equipment room.
The office is located in downtown Sault Ste. Marie and various maps of the city allowed the panel to locate it in relationship to the hospitals, YMCA, the home of patient B, the contiguous home of her friend, Ms. C [identified as C in the Notice of Hearing], the home of Dr. Deluco, and the home of an additional patient of Dr. Deluco where a house call occurred.
The tapes of phone messages left for patient B by Dr. Deluco were transcribed and there was no disagreement as to their content.
Dates of the messages were not presented, but were determined by the Committee based on the evidence presented.
(c) Testimony
Patient B
Patient B was a patient of Dr. Deluco over a period of time that spanned her multiple residences in Sault Ste. Marie.
Her first visit was in October 1980, and the last visit noted on Dr. Deluco's medical chart was in January 2001.
The period during which the allegations took place was following her return to Sault Ste Marie in February 2000.
During this period of residence, she saw Dr. Deluco as a patient from March 2000 to her last visit in January 2001.
There are two additional notes in April 2001 in her chart concerning non-visit, non-medical issues.
Patient B had seen Dr. Deluco over the span of the doctor-patient relationship for a variety of complaints including Chlamydia infections, genital herpes, urinary tract infections, gynecological issues, depression, and back pain.
There were various treatments for these illnesses.
She testified that she has four children, the youngest two accompanying her to Sault Ste. Marie from another part of Ontario during this last period of residency.
On her return to Sault Ste. Marie, she first resided in a woman's shelter, next in an apartment, and then in a townhouse.
She had not remembered if and for how long she stayed at a friend's house (Ms. C, referred to on occasion in Dr. Deluco's testimony and records as "C"), located next door to her final residential townhouse, for some period of time between the shelter where she stayed for six weeks and the apartment.
She indicated that she might have stayed there for a short period.
The exact period of time at each place was unknown, but was approximated by seasons and refreshed by notes in the chart.
Her youngest son, G, under the age of 12 at the time of the alleged events, was also a patient of Dr. Deluco, with his main illness being asthma.
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