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Unsolicited receiving of sexual favors is still sexual misconduct

May/June 2011 A finding that a physician committed professional misconduct by engaging in sexual relations with a patient did not require that the physician instigate or return sexual favors, the Court of Appeal of California, Third Appellate District, said in an August 31 ruling

(William Joseph Roy, Jr., v. The Superior Court of Sacramento County).

Denying the physician’s petition to vacate a trial court’s decision, the court said the state medical board’s findings “were not based on speculation or conjecture, but on reasonable inferences derived from the entire body of evidence in the administrative record.”

The case involved a gynecological oncologist, William Roy, who was accused in 2007 of having sexual relations with two female patients. After an evidentiary hearing, the administrative law judge found that discipline was unwarranted, that the sexual contact in one case was relatively brief, unsolicited, and one-sided, and that “physicians cannot be held accountable for the unilateral sexual conduct of their patients.”

The board rejected the ALJ’s decision, finding there was good cause to impose discipline, and ordering a public reprimand of Roy, plus requiring him to take a course in ethics and participate in the “Professional Boundaries Program.”

In his appeal, Roy argued that he was exempt from discipline under state law unless he was the giver and not merely the recipient of sexually intimate contact with his patient. But a trial court agreed with the board that the conduct between the patient and Roy constituted “sexual relations.”

The appeals court also agreed, rejecting Roy’s claim that a unilateral, unreciprocated sexual fondling of a physician by a patient does not fall within the definition of “sexual relations,” which is defined in state law 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 … specify whose sexual desires need to be aroused or gratified,” the court pointed out.

In fact, the law was tightened in 1993 after a study by the state Department of Consumer Affairs indicated that 9 percent of physicians were still having sex with their patients, the court noted.

“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. 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.”