Mistrial declared after doctor's attorneys delve into medical records of witness

By JOHN MUNFORD
jmunford@TheCitizenNews.com

The trial against a local doctor accused of committing sexual battery against a patient last year ground to a halt Wednesday morning.

Attorneys for both sides agreed with a decision by State Court Judge Fletcher Sams to declared a mistrial in the case against Dr. Orlando Cano, who is accused of one misdemeanor count each of sexual battery and reckless conduct.

The mistrial came after attorneys clashed over the questioning of a witness the state presented who claimed she too was inappropriately touched by Cano. Defense attorney Lynne Borsuk questioned the witness about her medical history when State Court Solicitor Steve Harris objected, saying the woman's medical records can not be made public until a separate hearing on the matter, according to Georgia law.

With a total of 10 such witnesses scheduled to testify for the state, officials agreed it would cause a lengthy delay for the trial, especially since each witness would be allowed to have an attorney present to represent their interests.

The court must also review the documents to determine if they should be admitted to the trial, Sams noted.

"The problem here is the defense has made all those decisions on its own without court approval of access to those medical files," Sams said.

Sams said he wanted to make sure the witnesses' rights were protected in addition to those of Dr. Cano.

"I am doing my very best to protect Dr. Cano's rights, but these patients have rights, too," sams said. "These aren't the state's records or Dr. Cano's records. These are the patients' records."

A hearing on the matter should have been scheduled before the trial, Sams said. Harris said he was unaware the defense would ask questions about the witnesses' medical records.

Borsuk argued that the medical information was necessary to present information on what precautions Dr. Cano took during medical examinations.

The victim, Cindy Head, testified Monday that Dr. Cano did not wear medical gloves or use a light while he was conducting the physical exam. A local gynecologist later testified that the gloves are necessary to protect the patient and physician and the light is necessary to be able to see the location to collect a sample for a pap smear test.

Cano also faces a separate trial on four misdemeanor counts of sexual battery for improperly touching several employees; Harris said that trial might take place before this one is re-tried.

Harris and Borsuk indicated they were both upset by the development that halted the trial.

"I am so upset and frustrated," Harris said.

Borsuk, who earlier characterized the criminal charges against Cano as "one disgruntled patient and her complaint snowballing out of control," said Cano vigorously maintains his innocence in the case.