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

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Rosie Mullaley
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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

Organizations: College of Physicians

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Recent comments

  • Ind. Rtns. & Compliance
    September 14, 2013 - 08:00

    Mr. Hynes should be more concerned about his own morality and alleged criminal activity and control his emotional outbursts and jealousy over his ex-wife. There is a reason why she left him, and it shows here.

  • CHRIS
    June 29, 2013 - 12:36

    This would almost be funny if it weren't so sad. I mean, everyone gets so upset when Wikileaks says Obama's reading our emails, but when some jealous ex airs a good doctor's private life (in which he did nothing wrong--he sent some texts for chrissake), people are more concerned with the content of the messages than the fact that no one but the recipient should be reading them, since he sent them on his private cell phone and on his own time. Can we talk about something worthwhile please, like maybe all the lives Barry has saved in his exemplary career?

  • kayla
    June 19, 2013 - 08:18

    @Just Saying...what could he possible have done to harm the patients exactly? Really? And, technically, he was on his own time. It was his break. Mr. Hynes is butthurt that his wife stepped outside the marriage - fair enough - I'd be mad too. But this is nothing more than an attempt on Mr. Hynes' part to air dirty laundry. A little high school if you ask me. All he has accomplished is making himself look like a child.

  • SAM
    June 18, 2013 - 09:45

    May I suggest you cover something that is newsworthy instead of a man's private life with his girlfriend. The monumental task of bringing artificial hearts to Newfoundland, accomplished by Dr. Rose this year, have already saved lives. Saving lives matter and what Dr. Rose does on his own time is insignificant in comparison. Overlooking news stories with value is plain ignorance and a pathetic reflection of the media.

  • TS
    June 15, 2013 - 19:25

    The college doesn't think that there might be something ethically wrong with having a third party conversation about the patient on the operating table in the context of one's own sexual activities, erections and so on?

  • Jewel
    June 15, 2013 - 17:31

    This story is hilarious...definitely my laugh for the day! For 'crissake', leave the surgeon alone. What he does on his 20-minute break is his business. I'm just glad he has a sense of humour : ) On a more serious note though, could you angle the Live Webcam on the Western Star website a little to the right so that I can get a look at the sky over the BEAUTIFUL Bay of Islands instead of boring Main Street??? LOL : )

  • Oh My
    June 15, 2013 - 07:01

    This is a new way for a jealous husband to lash out. LOL

  • Dee
    June 15, 2013 - 06:54

    Honestly this is silly. His sex life has absolutely nothing to do with his ability to perform his job. This is a smear campaign born out of jealousy and reading about it is 2mins of my life I wish I had back.

  • Moms
    June 15, 2013 - 03:46

    I feel this very private situation has been publicly aired because of the desire for revenge by Mr. Hynes, which makes him look bad, too. Further, I think society needs to reconsider our values when a private affair is made public for the whole world, but publication bans and government secrecy laws keep us from knowing details that we really should know.

  • kL
    June 14, 2013 - 16:48

    Jealousy gets ya no where!! ..Seriously what more did the doctor do that anyone else of us dont do..send sexy texts...WOW.. Hes human...Its not like he was texting while he was stitching up his patients...The husband needs to worry more about why his wife is now his ex then what texts she got..We spend nights watching tv shows about sexy doctors and nurses having a affair on all those shows but if a doctor sends a sexy text the world stops and hes unfit ......its the 21century!!!

  • JUST SAYING
    June 14, 2013 - 12:20

    "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". WHAT WOULD THE COMMITTEE SAY IF A PATIENT HAD BEEN HARMED? WOULD THEY HAVE SWEPT THAT UNDER THE RUG? NO EXCUSES HERE, ROSE WAS WAY OUT OF LINE. THESE TEXTS SHOULD HAVE BEEN DONE ON HIS OWN TIME. NOT WHEN HE WAS BEING PAID TO ACT LIKE A DOCTOR AND NOT A SEX CRAZED IDIOT.

  • JP
    June 14, 2013 - 12:13

    Reading this I can't help but think that Mr. Hynes has to move on and forget what happened. Jealousy gets you know where. As upsetting as it would be to discover your spouse being unfaithful, there comes a time that you have to forget about the past and enjoy the present. Having this much public attention brought to Mr. Hynes ex-wife and Dr. Rose should give both a wake up call that their actions didn't just hurt Mr. Hynes, but embarrassed them and their families greatly. Good luck to Mr. Hynes...now move on and enjoy life!

    • john
      June 14, 2013 - 13:52

      very professional Barry....not....guess you should have been smarter on where and to whom u text...hats off to Mr. Hynes for exposing such unprofessional conduct. unfortunatley Barry your co workers have to live with this in a public setting as now when someone comes to the cath lab that story will be hanging over their heads....