It is clear that without Yelland's "expert" opinion — arrived at without finding physical corroboration for children's outrageous claims — that the judges who indicted the Klassens and Kvellos and who convicted Ross, Ross and White might have reached different verdicts. Experts who give false testimony put courts and expertise in disrepute.
Days after a Saskatoon doctor was cleared of allegations of misconduct in connection with the Klassen malicious prosecution case, the doctor and the College of Physician and Surgeons of Saskatchewan were slapped with a lawsuit Thursday.
Richard Klassen, one of the 12 people wrongly accused of sexual and ritualistic abuse of three children in the early 1990s, filed a statement of claim with the Court of Queen's Bench against Dr. Joel Yelland and the college, citing negligent behaviour.
Yelland, the former president of the Saskatchewan Medical Association (SMA), examined the children involved in the case. His reports were used to corroborate the child abuse allegations against Klassen and his family.
A complaint laid by Klassen with the SMA was dismissed more than a week ago when Yelland was cleared of all allegations.
According to the statement of claim, Klassen alleges Yelland "deliberately encouraged the children . . . to continue to make up stories of sexual abuse and further that he purposely and negligently supplied the prosecution with corroborated testimony that the defendant knew or should have known to be false."
Klassen alleges Yelland helped "the prosecution obtain a conviction against Klassen while knowing this false report (prepared in 1991) could or would likely help seal the conviction."
The college is "vicariously liable" for Yelland's actions, Klassen claims.
Klassen said he suffered emotional stress, anxiety, depression and humiliation, among other things.
He is seeking damages including punitive and exemplary damages of at least $500,000. He is also asking general and special damages to be proven at trial.
In 1990, Klassen and 11 other people were charged with dozens of counts of child sexual abuse. The charges were stayed on the eve of their trial and they sued justice officials for malicious prosecution.
The case went to trial in late 2003 and the judge ruled in their favour. The province agreed to pay $1.5 million to the 12 plaintiffs as a settlement last June.
A former president of the Saskatchewan Medical Association (SMA) has been cleared of allegations of misconduct in connection with the Klassen malicious prosecution case.
The complaint against Dr. Joel Yelland, SMA president in 2003, was laid by Richard Klassen. Klassen and 11 other members of his family were falsely accused of abusing three of his brother's foster children in the early 1990s.
Klassen was highly critical of Yelland's examination of the children, which was used to corroborate the child abuse allegations against Klassen and his family.
The judge at the Klassen's successful malicious prosecution lawsuit against justice officials last year was also critical of Yelland's work, saying he made statements of fact based solely on unsubstantiated allegations of the children rather than on physical examinations.
Justice George Baynton said Yelland's judgment was clouded by the large number of abuse cases he'd handled in the past and it "blinded him."
However, the College of Physicians and Surgeons of Saskatchewan has ruled there is no evidence that Yelland committed misconduct in the case.
It ruled that Yelland's conduct "is not such a departure from acceptable medical standards."
Yelland's writings about the care he provided were "quite appropriate for the circumstances described," the college ruled.
Yelland could not be reached for comment Friday.
In 1990, Klassen and the other 11 people were charged with dozens of counts of child sexual abuse. The charges were stayed on the eve of their trial, but many of their lives were ruined by the allegations and charges.
They sued justice officials for malicious prosecution, and the case went to trial in late 2003. Baynton ruled in their favour in a scathing judgment, which found that Saskatoon police officer Brian Dueck, therapist Carol Bunko-Ruys and prosecutor Matthew Miazga maliciously prosecuted the group.
The province agreed to pay $1.5 million to the 12 plaintiffs as a settlement last June.
REGINA - An unprofessional conduct complaint filed against a prominent Saskatchewan physician for examinations he conducted 14 years ago has drastically reduced the number of doctors who are willing to work on sexual assault cases.
The complaint is being considered for evidence by an out-of-province physician with a report expected in late September.
Meanwhile, a Saskatoon colleague of the doctor is angry the complaint even exists and offers suggestions on how other physicians can protect themselves while doing this type of work.
The College of Physicians and Surgeons of Saskatchewan received a complaint in February against Dr. Joel Yelland, who was completing his 2003/04 term as president of the Saskatchewan Medical Association (SMA).
In 1990 and 1991, Dr. Yelland conducted physical examinations for the provincial department of social services of three foster children to detect signs of sexual abuse. Those examinations were part of an investigation of 12 individuals who were accused of heinous sexual abuse. Those accusations eventually proved to be unfounded. The children later admitted they had invented their stories and the brother was found to be abusing his two sisters.
The wrongly accused 12 individuals sued for malicious prosecution and won a December 2003 court case in which Judge George Baynton was very critical of Dr. Yelland's 1990/91 examinations and actions. In February, the individuals received a $1.5 million ex gratia payment from the province, but the province has also appealed the verdict to the Saskatchewan Court of Appeal.
and made statements of fact "based solely on unsubstantiated allegations of the children rather than on his physical examinations."
Lifting statements directly from the judge's 2003 ruling, the complaint also states that Dr. Yelland "ignored the most feasible source of abuse of the girls" and that his role in establishing the Saskatoon Sexual Abuse of Children Protocol and the volume of patient referrals he received from social services "clouded his professional judgment and blinded him to any other conclusion" than one that was consistent with the information given by the children.
The complaint also alleges Dr. Yelland provided opinions without reviewing the children's medical histories, which would have disclosed information that could have altered his opinion.
On March 4, the college sent a letter to Dr. Yelland asking him to respond to the complaints. A copy of that letter was also sent to Klassen as part of the college's mandate to keep complainants informed of the process. Klassen showed the letter to the Saskatoon Star-Phoenix, which ran an article saying the college was conducting a disciplinary investigation of the doctor.
In an interview with the Medical Post, Dr. Yelland expressed his frustration and annoyance on several fronts. "These children disclosed abuse at the hands of the Klassen family and we're required by law to report on what they've told us," he said. "This is a very important issue. We're obligated by law, especially with child and sexual abuse, to document what the history and physical findings are and conclusions that we have based on that. And if it does turn out it was a false allegation on the part of the complainant, we are not in a position to make that judgment as physicians," said Dr. Yelland.
Dr. Yelland was particularly angered by Judge Baynton's comments about him being "blinded" by his work with the sexual abuse protocol at the time.
"Nothing could be further from the truth," said Dr. Yelland. "He is blatantly wrong on that issue. If he was not a judge, he would be sued for that statement. I would have very just grounds for doing it (suing), but the judicial process protects judges themselves from that type of lawsuit for libel and slander."
Dr. Yelland was also concerned that Klassen took the college's letter to the media to suggest that disciplinary action was forthcoming when an investigation was only in the preliminary stages.
Bryan Salte, associate registrar of the college who authored the letter, also expressed disappointment with Klassen's actions.
"We would have hoped that complainants generally, including Mr. Klassen, wouldn't have used that information to go to the media at the investigative stage when there's been no decision made on whether the complaint is justified or not justified," Salte told the Medical Post. "Having said that, there's no way that we can prevent complainants from doing that."
Salte said a formal investigation committee can only be appointed in Saskatchewan if there are reasonable grounds to believe a physician may be guilty of unprofessional conduct. "We've sent it off to a person with expertise, somebody outside the province, with expertise in the investigation of child sexual abuse issues." That person will consider the complaint and suggest in late September whether a preliminary inquiry committee should be struck or not.
Dr. Yelland told the Medical Post the complaint has been stressful for him, when he was president of the SMA, but "extremely stressful for any physician in this situation."
He said he fears the publicity in the case and the high-profile court decision will have "a major impact on the way physicians are going to handle any child abuse or child sex abuse cases."
Refusing these cases
Dr. Anne McKenna, a Saskatoon pediatrician and assistant professor of pediatrics at the University of Saskatchewan, has seen physicians' responses change over the last decade.
"I'm having a great many physicians in this province absolutely refusing to do any kind of examination for the police and social services," said Dr. McKenna, who has worked on child sexual assault cases for more than 20 years.
"Nobody wants to do it anymore-including me, by the way. I'm fed up with it. I'm tired of having complaints made to the college," she said. "I'm tired of the judicial system. It never lets you get a straight sentence out. I'm frustrated, fed up and I really don't want to do it anymore."
In the last five years, Dr. McKenna has had 10 or 12 complaints filed against herself, which she said are directly attributable to sexual abuse consultations.
"I almost have a form letter I sign now," she said. "They're a nuisance. They don't make you feel good and certainly the kind of exposure that Joel got in the Star-Phoenix has had a very, very negative effect on physicians in this province. It's very much affecting sexual abuse victims because all of a sudden everybody's afraid of it, and these kids don't have anyone to speak for them. That's a terrible thing."
Dr. McKenna is convinced that Dr. Yelland did nothing wrong. "He put in a history which he obtained but I don't think he made any inferences."
Dr. Noel Doig, a former chairman of the SMA's medical advisory committee and of the college's discipline committee, said specific comments on physician conduct by a judge are rare and not necessarily accurate. "When I was chairman of the discipline committee, we did occasionally have some sort of pithy comments on things from judges. Usually as a rule, they don't make specific comments about either the motives or actions of the parties who are not the direct parties to whatever's going on," he said.
"I feel very unhappy for Dr. Yelland, who's a very careful physician," said Dr. Doig. "It appears that he has been judged: if the comments are made that he did something wrong. That is really a judgment that maybe a lot of people don't have the expertise to make."
Dr. McKenna said physicians can protect themselves against liability in sexual assault examinations by taking some simple steps.
"What doctors need to know is they are not the judge, they are not the jury and they are not the investigator. To protect themselves, often they don't even need to do a history . . . in sexual abuse cases. I will often talk to someone who comes in. I write things like, 'The foster parent alleges that. . . .' I don't ever get a history from the child or from the adult who alleges the complaint. All you have to do for sexual abuse, you have to look for physical signs. The rest of it is all part of the investigation of the police and social services," said Dr. McKenna.
"All any physician needs to do is say, 'the hymen is intact' or 'the hymen is not intact.' (Or) 'there is evidence of significant injury.' . . . But we describe the injuries only. We can also describe, and I do, the demeanor of the child. I've had children get totally hysterical (as the examination progresses). . . . All I'm doing is reporting the facts and that's how I cover myself," said Dr. McKenna.
The SMA would not make any official comment on the complaint while it is in process. Marcus Davies, the association's communications director, told the Medical Post there are educational materials available to help physicians navigate in the legal world. The Canadian Medical Protective Association has guidelines for doctors appearing as expert witnesses in a trial and the association prepared a document a couple years ago along with the college of physicians and Law Society of Saskatchewan on medical-legal interaction.
"It covers a whole range of things: complaints by doctors against lawyers and other aspects, who is an expert, fee for expert witnesses, preparing medical legal reports," said Davies.
The Ontario Medical Association prepared a similar fact sheet and information for its members in 1999.
Don't shy away from work
Dr. Michael Paré, a general practitioner psychotherapist in Ontario who writes a Medical Post column on boundaries, said physicians should not shy away from doing good work in their area of expertise for fear they could open themselves to complaints. "There's no way to avoid complaints against you at some level in medicine," he said. "If you tried to avoid all complaints you wouldn't be a good doctor."
Dr. Paré said physicians sometimes get into trouble when they go out of their area of expertise, which is happening with doctors in psychotherapy.
"A complaint against somebody does not mean they've done anything wrong, and that may be especially true about complaints in medicine. It has to be proven," he said.
An external expert is reviewing a complaint against the outgoing president of the College of Physicians and Surgeons of Saskatchewan for his role in the Klassen malicious prosecution case.
The governing council of the organization, which licenses physicians in Saskatchewan, will consider the opinion when it decides whether to strike a committee to formally investigate the complaint against Dr. Joel Yelland, said registrar Dr. Dennis Kendall.
The complaint was brought earlier this year by Richard Klassen after he and 11 extended family members won a malicious prosecution lawsuit late last year.
Klassen and the others were charged, tried and acquitted of horrendous sexual abuses against three foster children in the early 1990s. Years later, the children admitted they had invented the stories. The children actually were sexually abused by their birth parents and the two girls by their brother.
Relying upon the trial judge's 300-page written decision, Klassen alleged that Yelland's medical reports about the children lacked objective evidence and bolstered the prosecution's shaky case against the accused.
Klassen also alleged Yelland's professional judgment was clouded by his involvement in establishing a protocol for professionals dealing with cases of child sexual abuse and by his relationship with Social Services, which referred a large number of cases to him.
The college wants a peer of Yelland's to give an opinion on whether his decision-making process and conclusions were reasonable considering medical standards of the time, Kendall said.
"There's a limited number of people in the country who have expertise in this area and are peers of the physician who then would be in a similar position to say, in this year, based on the information that was at hand, this is how I would have handled the situation.
"The practise of medicine obviously evolves over time as evidence about appropriate practises changes, so when considerable time has elapsed between when an event occurred and when decisions were subsequently made, one has to try and judge it in the context of what was the approach to practise by peers at that time?
"We have provided to the external reviewer all of the relevant information and that person then has to look at it and try and think in the context of what the state of knowledge was at that time," he said.
Kendall hopes the report will be ready for the council sometime in September.
Klassen is away on holiday and could not be reached for comment Thursday.
The College of Physicians and Surgeons of Saskatchewan is conducting a disciplinary investigation of the doctor whose medical reports were used to bolster the malicious prosecution of Richard Klassen and 11 others.
Klassen said this week the college, which licenses doctors, sent him a copy of a letter it sent to Dr. Joel Yelland, the president of the Saskatchewan Medical Association. The letter informs Yelland of Klassen's February complaint against him for unprofessional conduct.
"They're taking it seriously. I'm happy," Klassen said Wednesday.
Klassen and 11 extended family members won the malicious prosecution lawsuit against Saskatoon police Supt. Brian Dueck, Crown prosecutor Matt Miazga and social worker Carol Bunko-Ruys, following a lengthy trial last year.
All plaintiffs had been charged, tried and acquitted in the 1990s, on charges of committing heinous sexual abuses against three foster children. Years later the children admitted they had invented the stories. The children were actually sexually abused by their birth parents and the girls by their brother.
In his December 2003 decision, Justice George Baynton outlined the role of Yelland, a family physician who often performed examinations of children at the request of social workers investigating possible cases of sexual and physical abuse.
Yelland examined the children, Michael, 10, and his twin sisters, Michelle and Kathy Ross, 8, in 1990 and again in 1991.
The college informed Yelland in a March 4 letter that the complaint against him includes six allegations arising out of Baynton's decision.
It alleges Yelland testified at a preliminary hearing that there was no more evidence of sexual abuse in 1991 than there had been in 1990, despite substantial indication of increased symptoms between the two examinations.
It alleges Yelland based his medical reports more on the subjective history told to him than on his own professional, objective observations gleaned from his examinations of the children.
It alleges that in his 1991 medical reports, Yelland made statements of fact based solely on unsubstantiated allegations of the children, rather than on his physical examinations.
He ignored the most feasible source of abuse of the girls, it alleges.
As well, Yelland's role in establishing the Saskatoon sexual abuse of children protocol, and the volume of patient referrals he received from Social Services, clouded his professional judgment and blinded him to any other conclusion than one that was consistent with the information given by the children, the letter states.
Yelland's belief in the guilt of the accused was irrational, considering it was based on information provided by children who had named many other people besides them, the complaint alleges.
It also alleges Yelland provided opinions without reviewing the children's medical histories, which would have disclosed information which could have altered his opinion.
"As interpreted by the courts, this means the physician must have done something that is such a departure from acceptable medical practice that no reasonable physician would have done (what he did)," the letter states.
It suggested Yelland contact the Canadian Medical Protective Association, which might be able to provide him with legal counsel.
Yelland declined to comment when contacted Wednesday.
College registrar Dr. Dennis Kendal said he cannot discuss on-going disciplinary matters but did outline how the process works.
The college is obligated to respond to every complaint with an informal investigation, in which administration gathers facts and recommends to the college council or its executive committee whether the complaint merits a formal investigation.
If so, a formal investigation is conducted by a special preliminary inquiry committee, which reports to the council with an opinion on whether there has been unprofessional conduct.
The entire governing council decides whether to lay a formal charge under the Medical Professions Act. If so, a standing discipline committee hears the evidence and decides if the charge is proven.
If it is, the matter returns to the entire governing council, which sets a penalty.
The mildest penalty for professional misconduct is a formal reprimand that remains on the doctor's record for life.
Penalties increase through fines and periods of suspension up to revoking of the physician's licence, Kendal said.
The entire process can take many months.