Mazzone, Judge, dissenting:
The facts of this case are
troubling. A psychiatrist admits to having had sexual relations over a six
year period with a disturbed teenage patient who he was treating and counseling,
yet excuses his activities with defenses of: 1) there exist no ethical guidelines
which prevent one from having sexual relations with a purported “former”
patient, and 2) there existed no physician-patient relationship at the time
of the sexual incidents. Despite an overwhelming record, relatively undisputed
findings of fact of the Hearing Examiner, an admission by the psychiatrist,
and findings of prima facie misconduct by this Court in State ex
rel. Deleno H. Webb, M.D. v. West Virginia Board of Medicine, 203 W.Va.
234, 506 S.E.2d 830 (1998), the majority adopts these erroneous defenses in
rendering an opinion that may very well create a double standard in which
a physician can be held liable for malpractice as result of a relationship,
but yet cannot be disciplined for conduct that also arises out of the same
physician-patient relationship. Because I believe the decision of the Board
of Medicine was neither clearly wrong nor otherwise prejudicial to the substantial
rights of the Appellee, I must respectfully dissent.
I.
Reversal Only Warranted Where Clear Error Exists
The law that guides a circuit
court's review of an appealed administrative order is the same standard that
guides this Court's review. Martin v. Randolph County Bd. of Educ.,
195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (“This Court reviews decisions
of the circuit under the same standard as that by which the circuit [court]
reviews the decision of the ALJ . . . . We review de novo the conclusions
of law and application of law to the facts.”). Hence, in consideration
of an appealed administrative ruling, this Court has held:
“
' “Upon judicial review of a contested case under the West Virginia Administrative
Procedure[s] Act, Chapter 29A, Article 5, Section 4(g), the circuit court
may affirm the order or decision of the agency or remand the case for further proceedings. The
circuit court shall reverse, vacate or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences, conclusions, decisions
or order are '(1) In violation of constitutional or statutory provisions;
or (2) In excess of the statutory authority or jurisdiction of the agency;
or (3) Made upon unlawful procedures; or (4) Affected by other error of law;
or (5) Clearly wrong in view of the reliable, probative and substantial evidence
on the whole record; or (6) Arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.' “Syl. Pt.
2, Shepherdstown Volunteer Fire Department v. Human Rights Commission,
172 W.Va. 627, 309 S.E.2d 342 (1983). 'Syllabus Point 1, St. Mary's Hospital
v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d
805 (1987).” Syllabus Point 1, HCCRA v. Boone Memorial Hospital,
196 W.Va. 326, 472 S.E.2d 411 (1996).
Syl. Pt. 1, Clark v. West Virginia Bd. of Med., 203 W.Va. 394, 508
S.E.2d 111 (1998).
See also Healy v. West Virginia Bd. of Med., 203 W.Va. 52,
506 S.E.2d 89 (1998); Modi v. West Virginia Bd. of Med., 195 W.Va.
230, 465 S.E.2d 230 (1995).
In the case sub judice,
the circuit court, sitting as an appellate court, determined that the order
of the Board of Medicine was clearly wrong in view of the reliable, probative
and substantial evidence on the whole record. “In cases where the circuit
court has amended the result before the administrative agency, this Court
reviews the final order of the circuit court and the ultimate disposition
by it of an administrative law case under an abuse of discretion standard and reviews questions of
law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W.Va.
588, 474 S.E.2d 518 (1996).
Although counsel for the
Appellee strenuously asserts that the Board of Medicine's findings of fact
are rubber-stamped findings of the hearing examiner, the result nonetheless
remains that the findings of fact must be given some deference. Indeed, appellate
courts reviewing the facts may very well disagree as to their inferences or
their conclusions, as has been done in the case sub judice. However,
in consideration of whether an administrative ruling should be disturbed on
appeal, this Court has observed that:
[t]his standard does not
entitle a reviewing court to reverse the finder of fact simply because it
may have decided the case differently. Anderson v. Bessemer City, 470
U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). “ 'In
applying the clearly erroneous standard to the findings of a [lower tribunal]
sitting without a jury, appellate courts must constantly have in mind that
their function is not to decide factual issues de novo.' ” 470 U.S. at
573, 105 S.Ct. at 1571, 84 L.Ed.2d at 528, quoting Zenith Radio Corp. v.
Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d
129, 148 (1969). Indeed, if the lower tribunal's conclusion is plausible when
viewing the evidence in its entirety, the appellate court may not reverse
even if it would have weighed the evidence differently if it had been the
trier of fact. 470 U.S. at 573-74, 105 S.Ct. at 1511, 84 L.Ed.2d at 528. Moreover, we must afford the lower tribunal's findings great weight
in this case because the factual determinations largely are based on witness
credibility.
Board of Educ. of County of Mercer v. Wirt, 192 W.Va. 568, 578, 453
S.E.2d 402, 412 (1994). Similarly,
Under
the clearly erroneous standard, if the findings of fact and the inferences
drawn by a family law master are supported by substantial evidence, such findings
and inferences may not be overturned even if a circuit court may be inclined
to make different findings or draw contrary inferences.
Syl. Pt. 3, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d
841 (1995).
The circuit court, majority,
and I clearly have differing inferences and application of the facts to the
law. However, despite my disagreement with the legal analysis of the majority,
the record in this case supports the findings of fact and should not be so
readily cast aside. As with many cases, especially those involving purported
he- said/she-said evidence, the appellate court must rely upon the lower tribunal's
factual determinations as the fact finder is in the best situation to make
credibility assessments.
Notwithstanding this, I
do not believe the facts of this case support a finding that the relationship
between Dr. Webb and Ms. D. was terminated by the letter transfer. First,
Ms. D.'s, perception as to the existence of the relationship should be given
greater weight and consideration. According to the evidence, the Appellee
unilaterally dictated a letter “transferring” Ms. D. from his care
and placed her in the care of his partner in the same office. The record does
not reflect that any discussion took place between the Appellee and Ms. D.
wherein he informed her that the relationship needed to terminate. While such
a conversation is presumed, the record is not clear as to whether Dr. Webb
actually advised Ms. D. that she needed to seek another therapist outside
of his practice group. To be clear, I am not suggesting that a physician needs
approval from the patient prior to termination of the relationship. Rather,
a conscientious physician who desires to avoid the legal pitfalls associated
with “abandonment” of a patient or malpractice should desire to
clearly express the termination of their relationship.
Further, the record does not
support a finding that Ms. D. was even aware of the termination of the relationship.
(See footnote 3) After the “transfer,”
she remained in the same practice group of therapists. When the Appellee's partner was away
or unavailable, the Appellee took over her treatment.
(See footnote 4) This is reflected by the
February 1978 hospitalization. Aside from any argument that a relationship
could be imputed upon the Appellee under an Agency theory, the Appellee did
not take an active affirmative step to clearly terminate the relationship.
Rather, he allowed himself to be placed in situations where he would be called
upon to treat and care for Ms. D. in non-emergency situations.
Given the factual record
in this case and consideration being given to the delicate mental state of
a troubled teenaged girl who is having sexual relations with her “former”
therapist, it is a logical conclusion that a reasonable person in the shoes
of Ms. D. would believe that a physician-patient relationship still existed
after the alleged transfer, assuming that the letter “transfer”
was in and of itself enough.
Hence, remand back to the
Board of Medicine for further consideration with regard to these factual issues
would be a reasoned approach. The record in this case supports the notion
that a factual issue existed with regard to whether the Appellee terminated
their physician-patient relationship. In the case sub judice, the hearing examiner was the trier of fact and determined that the relationship had
not terminated. These findings of the Hearing examiner, as the trier of fact,
must be given deference. The conclusion of the circuit court that the sexual
relationship began after the termination of the relationship was in error
and constituted an abuse of discretion that warrants this Court's reversal
and re-institution of the Board's recommended sanctions.
It
is generally recognized that sexual intimacy with a patient, induced by a
marriage or other counselor, is a form of malpractice permitting recovery
of damages for emotional distress and other harm resulting from the malpractice.
The basis of the malpractice is the trust relationship that arises from such
counseling services which are designed to improve the mental and emotional
well being of the patient. In such a situation, it is recognized that the
patient may become emotionally dependent on the counselor and be easily manipulated
by an unscrupulous counselor.
Indeed, the factual findings of this case clearly support the conclusion that
a trust relationship existed between the Appellee and Ms. D.
Whether
a trust relationship exists in therapist counseling depends on two primary
factors, together with any other relevant circumstances. First, the therapy
must have been conducted over a sufficient period of time to establish a trust
relationship. Second, there must be some reasonable semblance of actual therapy
sessions.
Syl. Pt. 4, Sisson v. Seneca Mental Health/Mental Retardation Council,
Inc., 185 W.Va. 33, 404 S.E.2d 425 (1991).
Not surprisingly, recognition
of this liability even appears in this Court's first opinion in this case.
In footnote 4 of State ex rel. Deleno H. Webb, M.D. v. West Virginia Board
of Medicine, 203 W.Va. at 238, 506 S.E.2d at 834, the majority astutely
noted:
Dr.
Webb claimed that he began having sex with Ms. D., not in 1975 when she first
became his patient, but in 1977, after he "transferred" her
to another doctor in the same practice group. However, the record
shows that over a several-year-long period after the alleged transfer, Dr.
Webb prescribed medicine for Ms. D., gave orders at hospitals regarding her
care, and otherwise took responsibility for her medical care. During this
period of time, Dr. Webb admitted to having sex with Ms. D.
Given
this strong prima facie evidence of misconduct, in the form of an
admission by Dr. Webb, the examiner was clearly justified in finding that
any prejudice from delay in the Ms. D. case was de minimis. See generally,
Pons v. Ohio State Medical Board, 66 Ohio St.3d 619, 614 N.E.2d 748 (1993), for
a case involving similar alleged physician misconduct.
As
to Dr. Webb's role in causing any delay, Dr. Adams, Ms. D.'s treating physician
in 1992 (when Ms. D. made her complaint to the Board about Dr. Webb), testified
how Dr. Webb used his physician status to exercise psychological dominance
in his relationship with Ms. D., and explained how this dominance precluded
Ms. D. from fully appreciating both the wrongfulness of Dr. Webb's conduct
and the need to report Dr. Webb's conduct to protect other vulnerable patients.
(Emphasis Added).
In four years, the factual
findings of the hearing examiner have borne out further support for the above
proposition. However, this proposition is now being silenced by the majority's
belief that no physician-patient relationship existed. Today's majority may
very well set a precedent where one may be liable for malpractice, yet free
of any discipline. Should this Court recognize a relationship for purposes
of civil malpractice, but find no relationship for disciplinary action? The
result of today's majority opinion may be interpreted to mean that a physician
who has sexual relations with a patient, while still involved in a trust relationship
with that the patient, can not be disciplined for ethical violations, despite
the fact that he/she can be held liable for medical malpractice as a result
of this same trust relationship.
Finally, it must not be forgotten
that the standard of review in this case is de novo with respect to conclusions
of law and application of law to the facts. Because I believe the Board's conclusions
of law are properly supported by the facts of this case, as well as established
case law, the administrative ruling and sanctions of the Board of Medicine should
have been upheld.
For
all the forgoing reasons, I respectfully dissent. I am authorized to state
that Chief Justice Davis joins me in this dissenting opinion.
Footnote: 1
by a psychotherapist, 41 S.D.L. Rev. 574 (1996);
Physician-patient sexual conduct: the battle between the state and the medical
profession, 50 Wash.& Lee L. Rev. 1725 (1993).
Footnote: 3
Dr. Staunton testified that
while the Physician's Code of Ethics did not address the issue of sexual relations
with a former patient, each case must be decided according to whether this
behavior could have a deleterious effect on the former patient. Similarly,
Dr. Schoener testified that such cases should be resolved on the basis of
whether there was an exploitation of the therapeutic relationship. Dr. Schoener
also testified that if the former patient still remains a tie to the therapist
or still relates to the doctor as a therapist it is not clear that therapy
ended. Moreover, he stated that it was entirely the physician's responsibility
to prevent sexual relations from occurring between the psychiatrist and his
patient.
Pundy, 570 N.E.2d. at 464. In addition, the Illinois Appellate Court further
cited the conclusion of the Board which is very applicable to the case sub
judice:
“What
is right is that a patient should not be harmed by a doctor. That principle
applies whether formal termination has occurred or not. An obligation attaches
once he or she comes under the care of a physician that does not disappear
until there has been a proper ending to that relationship.
“As
has been noted above, a special measure of dependence arises, indeed may even
be encouraged in many cases, from the psychiatrist/patient relationship--no
matter how brief or supportive-- that finds its genesis in the emotional vulnerability
of the patient. At best, Dr. Pundy was not fully conscious of this patient's
vulnerability, and this insensitivity to her condition led in ways clearly
detrimental to her welfare.”
Id.
Footnote: 4