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Secret tape of doctor’s interaction with patient was proper, court finds

An Ohio doctor charged with sexual misconduct after one of his patients secretly taped him making inappropriate sexual comments lost his appeal of discipline charges on September 27, when a Court of Appeals in Columbus ruled that the evidence from the camera was properly authenticated and did not violate his due process rights (Larry Lee Smith v. State Medical Board of Ohio).

When a female patient of Larry Lee Smith, a doctor of osteopathy, complained to local police that Smith had plied her with drugs in order to make sexual advances, law enforcement officials outfitted her with a hidden camera and sent her back to Smith’s offices. The patient, who had sought Smith’s treatment for a drug addiction, visited and recorded Smith on three occasions, capturing the doctor on tape making inappropriate sexual comments suggestive of a sexual relationship between the two.

After Smith was convicted on a criminal controlled-substance charge, professional charges soon followed and a hearing was set for February 2011.

Law books and gavelDuring the discipline process, Smith failed on several occasions to appear for important dates. He skipped the first day of his hearing, and although his attorney pleaded that inclement weather had kept Smith from appearing, the officer in charge of the hearing refused to postpone, noting that three witnesses had traveled from the same area as Smith without issue.

When Smith’s attorney attempted to contact his client to participate by phone, Smith did not answer. The next day, Smith failed to show again; nor had his attorney heard from him. During this process, the physician also skipped a mandated mental health evaluation without explanation.

The board revoked Smith’s license in May 2011 for the substantive charges, and again in July for skipping the mental evaluation, and Smith appealed.

Before the Court of Appeals, he argued that the surreptitious recordings of his incriminating statements were a violation of his due process rights, that the hearing officer had improperly proceeded without his participation during the hearings he had skipped, and that the board improperly ordered him to undergo the mental health evaluation which gave rise to the second ground for revoking his license.

The court did not accept his arguments. The camera, it ruled, was not a violation of his rights, and the evidence it contained had been properly authenticated during the discipline proceedings. The hearing officer, also, had acted legitimately in deciding not to postpone Smith’s hearing after he was a no-show. Judge John Connor, in his opinion for the court, wrote that Smith “cannot establish deprivation of due process based upon his own failure to communicate with counsel and make himself available despite counsel’s repeated attempts to contact him.”

Finally, Connor noted in affirming the board’s decision to revoke Smith’s license, under the circumstances ordering a mental health evaluation was a reasonable action for the board to take.