A McMaster medical resident has won a grievance for wrongful termination against Hamilton's two hospital systems despite engaging in "unethical and unprofessional" sexual activity with a drunk, semi-conscious medical student that led to criminal charges.

An Ontario Labour Arbitration Awards panel upheld the grievance against Hamilton Health Sciences and St. Joseph's Healthcare by Dr. Amitabh Chauhan, who is attempting to re-enter the residency program after losing, then regaining, his certificate to practice medicine.

Chauhan and another doctor, Suganthan Kayilasanathan, were found not guilty after a lengthy trial in 2014 of drugging the woman and sexually assaulting her in a Toronto hotel room after a night of heavy partying in February 2011. Chauhan was also found not guilty in a separate incident of drugging and sexually assaulting an ex-girlfriend in 2003.

As a medical resident, Chauhan was both a student of McMaster University and an employee of the city's two hospital systems, Hamilton Health Sciences and St. Joseph's Healthcare.

At the time of his arrest in 2011, Chauhan had only completed seven months of his five-year residency program in plastic surgery.

When Chauhan won reinstatement as a doctor and attempted to resume his residency several years later, the two hospital systems refused to allow him to rejoin as an employee in the residency program, so Chauhan filed a grievance.

The labour arbitration panel has left it to Chauhan and the hospitals to try to find a resolution — including the possibility Chauhan will return to work as a plastic surgery resident in Hamilton's hospitals.

HHS and St. Joe's issued a joint statement to The Spectator: "We are reviewing the decision and determining next steps."

Through his lawyer, Chauhan declined to comment while the case is still being resolved.

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There are two opposing versions of what happened in a downtown Toronto hotel room in the early hours of Feb. 13, 2011, based on published coverage of the trial.

At the time, P.W. was a 23-year-old medical student. Her identity is protected by a publication ban.

She had finished a rotation in general surgery and had an interest in plastic surgery. She had known Chauhan for a number of months and reached out to him for career advice. She also knew he was married with two young children.

Chauhan, now 41, began mentoring her and there was some discussion of doing a research paper together.

He suggested she join him in Toronto for drinks on the evening of Feb. 12, 2011, a Saturday. She arrived at a hotel bar to discover Chauhan, along with Kayilasanathan, his friend from childhood.

The drinking commenced and the versions of what happened parted ways.

P.W. alleged she was drugged at some point during the night and then sexually assaulted by the two men in the early morning hours in a hotel room at the downtown Sheraton Centre.

Chauhan testified it was P.W. who initiated the sexual activity, it was consensual, and besides, Chauhan told court, he was "completely drunk" and "physiologically, it wasn't going to happen."

After a high-profile 44-day trial, the judge sided with Chauhan, finding him not guilty of the charges against P.W.

The judge also found Chauhan not guilty of drugging and sexually assaulting an ex-girlfriend in 2003. She had come forward after reading about the charges laid in 2011.

Cleared of the criminal charges, Chauhan's next fight was to restore his medical career.

After he was charged, the College of Physicians and Surgeons of Ontario (CPSO) revoked Chauhan's medical certificate.

In October 2015, according to the labour arbitration decision, the CPSO denied Chauhan's request to be reinstated. After reviewing evidence from the criminal trial, a psychiatric report and a risk assessment report, the college didn't believe Chauhan "would practise medicine with decency, integrity and honesty."

Chauhan appealed to the Health Professions Appeal and Review Board, and HPARB overruled the college, ordering it to reinstate Chauhan's medical certificate.

The college tried a second time to discipline Chauhan in 2017 but abandoned the hearing when P.W. refused to testify because of the trauma she suffered from the "gruelling" cross-examination she endured during the criminal trial.

With his medical certificate reinstated, Chauhan then tried to re-enter McMaster's residency program.

Before McMaster allowed that, according to the decision, the university commissioned a risk assessment report of Chauhan from a third-party company. Chauhan refused to be interviewed by the company.

After a review of the evidence, the company's report came to some conclusions:

• At the very least, Chauhan had "a history of 'problematic sexual behaviour,' a history that 'raises serious questions regarding his judgment, attitudes and insight.'"

• There was no evidence Chauhan had taken steps to reassure McMaster "that he does not pose a risk for encountering similar problems again."

• There was no evidence "he has made plans to deal with the stress and negative reactions from others he is likely to encounter upon return to the residency program."

However, Chauhan's lawyer provided McMaster with a psychiatrist's report — with Chauhan's co-operation, this time — which rated his risk "lower than the general population."

Chauhan, the psychiatrist stated, "is a disciplined, cautious, altruistic individual" who "appears to be the antithesis of an at-risk person."

"He has learnt from the circumstances that predisposed him to the allegations resulting in his criminal charges," the psychiatrist reported. "He has since made an adjustment to his lifestyle that minimizes any risk or repetition of such allegations."

Chauhan's lawyer also presented McMaster with a report from a second psychiatrist — Dr. John Bradford, a faculty member in McMaster's Department of Psychiatry and Behavioural Neuorsciences.

Bradford never examined Chauhan. Yet he concluded Chauhan would have no difficulty reintegrating into the residency program and "I do not see any behavioural difficulties."

Chauhan's spouse is a psychiatrist, a faculty member in McMaster's psychiatry department and a colleague of Bradford.

Bradford did not respond to a request for comment.

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On Oct. 21, 2018, McMaster informed Chauhan he was eligible to return to the residency program.

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That left the two Hamilton hospital systems — the places where Chauhan would actually have to work.

The hospitals made it clear they didn't want Chauhan back, according to the labour arbitration decision.

HHS and St. Joe's put together a joint committee of four senior doctors and two human resource professionals to consider Chauhan's request to return to work.

The committee decided it would not be in "the best interests of patients, staff or the hospitals for Dr. Chauhan to be reappointed to the residency."

Being found not guilty at the criminal trial was by no means an exoneration of Chauhan's conduct and judgment, the committee noted.

Engaging in sexual activity with a medical student he was mentoring was "unethical," "unprofessional" and "unacceptable," the committee added.

"The hospitals took the position that by his conduct and behaviour, Dr. Chauhan was the sole author of his misfortune," the labour decision states.

The committee was troubled that Chauhan knew there was a power imbalance between him and the medical student but minimized the importance of it, betraying a "sense of entitlement that demonstrates a lack of insight."

What's more, the Hamilton hospitals had received a letter from 16 residents in the plastic surgery program who stated they were concerned about Chauhan's conduct and his possible reinstatement in the program.

The hospitals feared concerns and legal liabilities could arise once staff and patients became aware of Chauhan's "troubled history and questionable behaviour." The hospitals expressed particular concern about female patients and staff members.

"Many female employees — not just among the residents, fellows and medical students, but women working across classifications within the hospitals — would not wish to work with Dr. Chauhan," according to the hospitals.

The Professional Association of Residents of Ontario (PARO), which represented Chauhan, told his labour arbitration hearing the case was straightforward.

Chauhan was acquitted of the charges, he wasn't the direct supervisor of P.W., his medical certificate had been restored, and McMaster had agreed to let him back in the residency program.

The hospitals were the only roadblock and, according to the head of PARO, this was the first case he'd heard of where teaching hospitals were refusing to employ a resident who had met all the requirements from the university and the CPSO.

Chauhan, PARO stated, was committed to regaining the trust and confidence of the hospitals.

"He has learned from his mistakes," the labour decision noted, "regretted the shame and stigma his actions brought upon his wife and children, made changes to his lifestyle, and was 'committed not to make such mistakes again.'"

That was good enough for the labour arbitration panel. It decided there was no just cause to terminate Chauhan's employment as a medical resident.

In its reasons, the arbitration panel leaned heavily on the findings of the judge in Chauhan's criminal trial, stating "it is not surprising" the judge found Chauhan not guilty.

No mention was made in the reasons of the fact Chauhan had engaged in sexual activity with a student he was mentoring.

The decision left it to the hospitals and Chauhan to work out a solution, and if they can't, the matter will return to the arbitration panel.

sbuist@thespec.com

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