Submitted by Stephen M. Boreman on Fri, 06/01/2012
No doctor wants to be contacted by a California Medical Board investigator and questioned about allegations of an inappropriate sexual relationship with a patient, especially if that doctor believes it was the patient, and not the doctor who initiated and engaged in inappropriate contact. The potential professional and personal consequences as well as general fall-out of allegations such as these are just too serious and damaging.
Dr. William Joseph Roy, Jr. M.D., found himself in just those circumstances in 2007, when the Medical Board filed an acccusation charging him with gross negligence in violation of Business and Professions Code section 2234(b) and sexual misconduct in violation of section 726. The conduct alleged occurred in 2001. The filing of the accusation was followed by an administrative hearing in 2008. After the hearing, the Administrative Law Judge found that, while Roy had engaged in "brief" , one-sided, inappropriate sexual contact with a patient, no discipline was warranted. The Medical Board nonadopted the proposed decision, and imposed a Public Reprimand with terms and conditions including enrollment in a Professional Boundaries program and taking an Ethics course. The Board's action led to an unsuccessful Writ of Mandate filed by Roy (to overturn the Board's decision), and finally, a formal judicial appeal. See Roy v. Superior Court,198 Cal. App. 4th 1337 - Cal: Court of Appeal, 3rd Appellate Dist. (2011).
Dr. Roy was a highly trained Gynecological Oncologist. The patient in the case, V.H., was a thirty-five year old female who was referred to Roy for surgery in April of 2001 after a cystic mass was discovered in her midpelvis. At the time, V.H. was going through a divorce. In the subsequent Medical Board administrative proceedings, she was described as "a single, bright, attractive, assertive young woman (who was). . . strong, independent and seeking adventure." Id. Following the surgery, in which it was determined that the mass was benign, the patient's referring gynecologist instructed her to call Dr. Roy to determine whether follow-up was necessary.
When V.H. called Dr. Roy, he discussed details about his personal life, telling her it was his birthday, that his car needed repair, and that he was having difficulty getting a California driver's license even though he had been a law enforcement officer. Id. at 1341. The patient later admitted that, at this point, she found Dr. Roy "charming" and was "interested" in him. Id. She initiated a pretext phone call, asking if she could interview Roy for an English class, in addition to making a follow-up appointment. Roy agreed and an appointment was scheduled as his last appointment of the day for May 18, 2001.
On May 18th Roy saw the patient in his office. He prescribed antibiotics and other routine treatment. He advised V.H. to see her gynecologist for regular OB-GYN care. At the conclusion of the office visit, Roy agreed to meet the V.H. at P.F. Chang's restaurant for an early dinner, so that she could "interview" Roy. They took separate cars to the restaurant.
At dinner, V.H. interviewed Roy about his personal history, hobbies and reasons for becoming a doctor. She had an outline and took notes, lending credence to her pretext of an interview for a class. Following the meal, Roy walked with V.H. to her car. V.H. thanked Roy for the "nice time" and asked whether they could get together again. Roy declined, saying because she was his patient, he could not "be having some sort of relationship with [her]," and that he "couldn't trust himself around [her]." Id. at 1341. V.H. said she did not feel like she was still his patient, but Roy was not persuaded. Id.
Roy testified that he then held out his hand to say goodbye, but the handshake became an embrace that turned sexual in nature. At this point, the two were standing outside the patient's car. V.H. began to touch Roy in the area of his groin. Roy was not touching V.H. in the same way, but at no point did he tell V.H. to stop. After about forty-five minutes of hugging and V.H. groping, they got into V.H.'s car and continued the physical touching, with V.H. performing the sexual touching, including touching Roy's penis through his clothing. The total period of hugging and touching was approximately one hour, with about fifteen minutes occuring in the car. As they said goodbye, Roy said they could never see or speak to each other again because "she was a patient." Id. at 1343.
Thereafter, in July and August of 2001, Roy continued to communicate with V.H. about her lab results. Then, from approximately September of 2001 to September 2002, Roy and V.H. engaged in a relationship that involved phone calls, phone sex, oral sex and heavy petting but not intercourse. V.H. loaned Roy $37,500, which he repaid. During this latter period, experts later agreed that V.H. was no longer Roy's patient. At issue, however, was the sexual encounter of May 18, 2001, at which time Roy considered V.H. his patient (although an expert presented by Roy argued she was no longer under his care and not a patient).
In 2007, based on complaints from another former patient and love interest of Roy's (J.L.) as well as V.H., the Medical Board filed an accusation charging Roy with gross negligence and sexual misconduct, in violation of Business and Professions Code sections 2234 (b) and 726 respectively, based on his awareness that V.H. was his patient and that sexual contact had occurred on May 18, 2001, which he did not seek to terminate. At an administrative hearing, the Board maintained through expert testimony that V.H. was Roy's patient at the time of the May 18th encounter. Roy presented expert testimony that argued V.H. was no longer a patient at that time (despite Roy's contrary statements) because she was not under his active medical care. Id. at 1344. Roy and V.H. both testified, presenting somewhat differing versions of events, but the basic facts remained essentially unchanged.
The Administrative Law Judge found that V.H. was in fact a patient at the time of the dinner and encounter afterward on May 18th, and that V.H. and Roy had engaged in "heavy petting" during which V.H. touched Roy's penis "through his pants." Id. at 1345. However, the ALJ found that discipline was "unwarranted". The ALJ reasoned that the encounter was 'relatively brief" and that Roy had not solicited the sexual touching and that it was"one-sided". Id. at 1345. The ALJ ruled that "[p]hysicians should not be held accountable for the unilateral sexual misconduct of their patients." Id.
At this point, we should probably step back and think about how the average California physician would perceive these circumstances before the appellate court's decision in Roy v. Superior Court. While most physicians would likely agree that having sexual contact with a patient is wrong and can land them in trouble with the Medical Board, many would also conclude that aggressive sexual conduct by a patient that is not reciprocated by the physician would not be grounds for discipline, (notwithstanding the Board's stated policy on its website that the physician is always deemed to be in a superior position of authority to the patient and that all sexual conduct with a patient is proscribed, regardless of who initiates the conduct).
The Medical Board filed a notice of nonadoption of the ALJ's proposed decision and found good cause to impose discipline under both section 2234 (gross negligence) and 726 (sexual misconduct with patient). The board ordered a Public Reprimand be imposed, along with an order for Roy to take a course in Ethics and to participate in a "Professional Boundaries Program". Following a request for reconsideration from Roy, the Board reaffirmed its decision.
Roy then petitioned for a Writ of Mandamus in Superior Court to vacate the Board's decision as an "abuse of discretion" and because the decision was "unsupported by the weight of the evidence." Id. at 1345. The trial court denied Roy's petition, finding after independent review of the record that Roy's conduct constituted "sexual relations" with a patient within the meaning of Section 726 of the Code. The court agreed with the Board that Roy had "permitted" V.H. to sexually grope him, and that it was not done without his consent (as Roy had testified). The court noted that Roy did not tell V.H. to stop. However, the court did find that the charge of gross negligence was not substantiated, and therefore struck that charge (leaving the finding of Sexual Misconduct with Patient under Section 726 intact. The court also found that the Board would likely impose the same penalty if the case were remanded, so no order to remand the ase back to the Board was issued. Roy then appealed the Superior Court's decision to the Third District Court of Appeals, seeking a stay and Writ of Mandate to overturn the Board's decision.
The appellate court first noted that under Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, the trial court's duty to review an administrative law decision like the Board's requires it to exercise independent judgment on the facts. See Bixby v. Pierno (1971) 4 Cal.3d 130, 143-146; Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 789.
After the trial court issued its decision, the role of the appellate court was to independently decide the issues of law (with the factual review of the trial court record left intact). Griffiths, supra, at pp. 767-768. At issue in Roy's appeal was whether his conduct with V.H. constituted "sexual abuse, misconduct, or relations with a patient" under Section 726. Roy argued that the court's decision below was unsupported by substantial evidence sufficient to support the Medical Board's decision. In a substantial evidence challenge, the appellate court considers all the evidence "in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in su pport of the [findings]." Roy v. Superior Court, at 1348. Thus, a physician in Roy's shoes faced an uphill battle on appeal.
The appellate court took Roy's pre-May 18th telephone conversation, in which he discussed aspects of his personal life as evidence of his unprofessional, personal interest in V.H., and her pretext call requesting an interview with Roy for an English class, as evidence of her interest in a personal relationship with Roy. The court found that in the parking lot encounter between Roy and V.H., Roy was aware of his inappropriate interest as well as hers, was aware that V.H. was a patient, and that "Roy's attempt to resist temptation failed." Id. The court noted that "substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577. The court found that substantial evidence had been presented as to Roy's sexual misconduct with a patient. Id., at 1349.
The court then engaged in a lengthy discussion of legislative intent regarding Section 726 and the meaning of "sexual relations" under that section. Roy argued that "unilateral, unreciprocated sexual fondling" (i.e., one-sided) by a patient does not constitute "sexual relations" by a physician under Section 726. The appellate court, however, found that sexual relations includes "sexual intercourse, or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse." Id. at 1352, rejecting Roy's hypothesis. The court ruled that "The term applies, without qualification, to any intentional touching of an intimate body part of another for a sexual purpose." (Emphasis added.) Id. at 1353. Thus, to be disciplined, a physician need not be the giver of sexual contact or gratification but can be the mere recipient in order for Section 726 Sexual Misconduct with a patient to apply. The court noted that the prohibition against sexual relationships with patients dates back over one thousand years to the Hippocratic Oath." (Note, "Calling Dr. Love": The Physician-Patient Sexual Relationship as Grounds for Medical Malpractice—Society Pays While the Doctor and Patient Play (1999-2000), 14 J.L. & Health 321, 324-325, fns. omitted.) Id. at 1353.
Section 726 of the Business and Professions Code cited above was amended in 1993. At that time the author (Senator Dan Boatwright) wrote in a letter urging the Governor to sign the legislation, "The problems with sexual contact between a physician and patient, whether it is consensual or not, are obvious. First, it exploits the patient's emotional and physical trust. Second, it causes the physician to lose his or her objective judgment, which can lead to inadequate medical care for the patient." (Sen. Daniel E. Boatwright, sponsor of Sen. Bill. No. 743 (1993-1994 Reg. Sess.), letter to Governor Wilson, Sept. 9, 1993.)
In its recommendation that the Governor sign the bill, the Department of Consumer Affairs referred to a study indicating 9 percent of physicians were still having sex with their patients and concluded, "Current laws regarding sexual misconduct are not working as a deterrence to exploitation of patients." (Dept. of Consumer Affairs, Enrolled Bill Rep. on Sen. Bill No. 743 (1993-1994 Reg. Sess.) Sept. 17, 1993, p. 2.). Id. at 1353.
In 1996 the Medical Board adopted a policy on physician sexual misconduct with patients which states: "It is the policy of the Medical Board of California that a medical practitioner who engages in sexual activity with a current patient is guilty of unprofessional conduct." The Board also published a lengthy explanation for the policy on its website, and indicated its intent to aggresively pursue Sexual Misconduct/exploitation allegations. In addition, the website includes a staff article as well as guidelines from Medical Board physician experts on how to avoid sexual misconduct issues.
In 2011 the appellate court in Roy v. Superior Court has now said that "Through section 726, the Legislature decided that the only way to stop physicians from engaging in these unethical practices was to ban "any act of sexual abuse, misconduct, or relations" between physician and patient. (§ 726, emphasis and italics added.) The idea that a physician could, with legal impunity, receive sexual favors from a patient as long as he does not return them would, in our view, create a loophole in the statute that the Legislature could neither have imagined nor intended." Id. at 1354.
The court also stated, "We agree with the trial court that the statutory definition of "sexual relations" found in the closely related attorney discipline statute, section 6106.9, is a useful metric for assessing liability under section 726. Subdivision (d) of section 6106.9 defines the term "`sexual relations'" to mean either sexual intercourse or "the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse." This definition does not distinguish between the touching of a client by an attorney or the reverse situation, nor does it specify whose sexual desires need to be aroused or gratified. The term applies, without qualification, to any intentional touching of an intimate body part of another for a sexual purpose. (emphasis added) Id. at 1337. Thus, the court adopted an extremely broad definition of sexual relations in order for Section 726 to apply.
The court concluded, "For the foregoing reasons, we reject the idea that Roy was exempt from discipline under section 726 unless he was the giver and not merely the recipient of sexually intimate contact with his patient." Id. at 1353. The court denied Roy's request for a Writ of Mandate, letting stand the Board's imposition of discipline, including the finding of Gross Negligence under Section 2234(b) (which the Superior Court had struck) in addition to violation of Section 726.
According the the Medical Board, accusations charging violation(s) of sections 726 or 729 result in surrender or revocation of a medical license or at least suspension with a significant term of probation imposed more often than other charges. In a Medical Board publication entitled “The Seven Deadly Sins (2006): (See www.mbc.ca.gov/licensee/sexual_misconduct.html) Deputy Chief of Enforcement Laura Sweet states: “It does not matter that the patient is willing. It does not matter if the patient flirts. It is the physician's responsibility, as the professional, to take whatever measures are necessary to prevent a sexual relationship from occurring.” Based on the Board's published statements on physician sexual misconduct, it is safe to assume that complaints of sexual misconduct by a physician will be given "strict scrutiny" by Medical Board investigators, and a broad interpretation of culpability under Business and Professions Code Section 726 applied.
For a physician facing a Medical Board allegation of sexual misconduct, the experience carries with it not only the threat of professional consequences, but the nature of the charge(s) also makes it personally embarassing and potentially damaging to the physician's personal life in terms of family or significant others. All the more reason for the physician to consult experienced counsel early on in the case of a Board investigation, in order to develop a legal strategy to mitigate the harm and potential career damage. If the physician is innocent and the charges false or malicious, evidence to that effect must be marshalled. If, on the other hand, legal review suggests some culpability, steps can be taken to demonstrate the physician's recognition and assumption of responsibility for the behavior in question, as well as possible means of remediation. This means that the physician vulnerable to a charge of sexual misconduct will need to develop a plan to demonstrate personal insight into the nature of the violation and his or her own ability to prevent future violations in order to blunt the Board's likely pursuit of serious disciplinary consequences. This can be accomplished a number of ways.
"Sexual activity" and "sexual relations" are pretty broad terms, as we learned in the impeachment proceedings against President Clinton. In that case and in Roy, "sexual relations" were a matter of interpretation. In Roy, however, we see that the California courts will tend to side with the Medical Board's broad proscription against any and all sexual contact with a patient, regardless of how it is initiated, by whom, and whether or not there was consent by the physician. How can a physician ensure that he or she will not be perceived, let alone charged in an accusation, with having violated the law with respect to sexual misconduct or exploitation?
First, physicians must realize they are in a fish-bowl when it comes to personal relationships with patients, and avoid situations where misperceptions might occur. Non-professional contact or meetings with patients, unless brief and purely accidental, should be avoided, even where the patient appears to be making a reasonable request, e.g., to interview the physician for a college English paper.
Second, physicians should avoid discussing their personal lives or problems with patients. This is a professional boundary issue. Such conversations may be perceived by the patient as a segway into a more personal relationship than doctor-patient. Given that physicians are presumably held in esteem and respected as authorities by patients, revealing personal details or problems may give the impression that the physician wants a more personal, intimate relationship with the patient than is actually intended. Finally, the physician should at all times keep physical patient contact to a strictly professional norm. Giving the patients privacy relative to physical examinations and having female staff present for intimate examinations of female patients by a male physician (or vice-versa) should be standard practice.
What should the physician who has erred and already fallen into potentially harmful and/or inappropriate sexual conduct with a patient do to mitigate the harm and potential consequences with the Medical Board? Is he or she supposed to just wait for "the other shoe to drop" with the filing of a Medical Board accusation, or are there proactive steps that can be taken to mitigate the harm?
Initially, the physician must discontinue the inappropriate patient contact and/or relationship. This may be emotionally difficult and may also invite retalliation by a patient who views him or herself as being rejected. It will also likely involve communicating to some degree with the physician to whom the patient is to be referred for continued medical treatment. However, the longer inappropirate patient contact continues, the more likely professional consequences such as a Medical Board investigation may occur. Staff and others, including friends and relatives of the patient, have eyes and ears as well as telephones and computers with which to file complaints, by name or anonymously.
Secondly, the physician should consider establishing a record of therapeutic action taken to gain insight into his or her risky behavior and to later demonstrate to the Medical Board, if necessary, the sincere desire to avoid the traps of sexual misconduct. Finding a competent therapist and engaging in a pattern of treatment in which the sexual misconduct issue is addressed may be helpful to establish evidence of pre-accusation insight and rehabilitative effort.
Finally, the physician might consider voluntarily enrolling in a Professional Boundaries program, again to demonstrate knowledge and insight into why avoiding such conduct in the future is important for the physician as well as patients, and taking an Ethics course recognized by the Medical Board.
These steps, taken by a physician vulnerable to a charge of having violated Section 726 of the Code , might be enough to allow him or her to avoid formal discipline at the investigative stage, or alternatively, may provide a means of mitigating a potential revocation case, instead enabling the physician (and his or her attorney) to more effectively bargain with the Medical Board for a short of suspension, probation, or outright revocation, (i.e., a Public Reprimand).
Each case of alleged sexual misconduct with a patient is unique. The more egregious the physician's behavior in a sexual misconduct or exploitation case, the more likely the Board will seek serious consequences. Dr. Roy faced only a Public Reprimand, not suspension, probation or revocation. He was not asked to surrender his license, most likely because of the evidence he provided that the patient initiated and engaged in much if not all of the sexual conduct in question. According to the decision in Roy, he acquiesced to a patient's sexual overtures when he had a duty to say "stop" and "no". However, physicians need to consider that even a Public Reprimand remains on their record permanently. So it is better still to avoid the circumstances that might lead to such consequences.
We cannot say for sure, but had Dr. Roy voluntarily enrolled in a Professional Boundaries program and taken an Ethics Course at the outset of the Board's investigation and even before the filing of the accusation, it is possible he might have avoided the Board's decision, the court battle, and the ultimate loss. No doubt it was an expensive lesson. What we do know after Roy v. Superior Court is that the Medical Board is determined to pursue Sexual Misconduct matters aggressively, and that, so far, the courts have sided with the Board.
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