Pons v. Ohio State Med. Bd.

OPINIONS OF THE SUPREME COURT OF OHIO

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Pons, Appellee, v. Ohio State Medical Board, Appellant.

[Cite as Pons v. Ohio State Med. Bd. (1993), Ohio

St.3d .]

Physicians -- State Medical Board -- Disciplinary proceeding --

When reviewing medical board's order, courts must accord

due deference to board's interpretation of technical and

ethical requirements of its profession.

When reviewing a medical board's order, courts must accord due

deference to the board's interpretation of the technical

and ethical requirements of its profession.

(No. 92-115 -- Submitted March 16, 1993 -- Decided July 7,

1993.)

Appeal from the Court of Appeals for Franklin County, No.

91AP-746.

In 1970, appellee, Pablo A. Pons, M.D., became licensed to

practice medicine in Ohio. Since then, he has specialized in

obstetrics and gynecology. On November 9, 1989, appellant,

Ohio State Medical Board ("board"), notified Dr. Pons that it

proposed to take disciplinary action against him for violations

of R.C. 4731.22(B)(6) (a departure from, or failure to conform,

to minimal standards of care) and former R.C. 4731.22(B)(15)

and its successor former R.C. 4731.22(B)(14)1 (violations of

medical ethics) in his treatment of a woman referred to as

"Patient 1."

On January 30, 1990, a hearing was held before a hearing

officer with regard to the board's allegations. The testimony

and exhibits received at this proceeding and as noted in the

findings of fact, revealed that Dr. Pons was the treating

physician of Patient 1 from around 1973 to March 26, 1984.

Sometime in 1976, Dr. Pons began a sexual and emotional

relationship with her. This relationship lasted until 1983.

Dr. Pons first saw Patient 1 in 1973, when he had been

called as a consult by her family physician to perform a

therapeutic abortion for her. In large part, the medical

indication for the abortion was Patient 1's severe anxiety,

anxiety which arose from the birth of a previous child with

Down's Syndrome. Dr. Pons was aware of this previous history

of psychiatric problems, including Patient 1's treatment and

subsequent hospitalization for these problems.

Prior to the beginning of their sexual relationship, Dr.

Pons continued to treat Patient 1 for periods of depression and

anxiety. At one point, in 1975, Dr. Pons counseled Patient 1

and her husband regarding their marital difficulties.

From 1974 to March 1984, Dr. Pons served as Patient 1's

exclusive physician. He treated her for all her gynecological

problems. He also provided non-gynecological medical care,

such as treatment for back pain (severe enough to warrant

hospitalization), and the removal of a mole or cyst from

Patient 1's shoulder because Patient 1 refused to see other

physicians.

When Patient 1 became pregnant with his child in 1983, Dr.

Pons ended his sexual relationship with her, yet continued to

professionally treat her throughout the pregnancy, serving as

her attending obstetrician at the birth. Dr. Pons terminated

his professional relationship with Patient 1 in March 1984. At

this time, Patient 1 was exhibiting severe depression and Dr.

Pons recommended psychiatric treatment.

Expert medical testimony was also provided. The expert

witness, Dr. George P. Leicht, opined that Dr. Pons' overall

care departed from the minimum standards of care of similar

practitioners under the same or similar circumstances because

the sexual relationship placed Dr. Pons in a very compromising

position in which, as an objective individual, he would have

difficulty in rendering appropriate guidance and care.

In addition, Dr. Leicht believed Dr. Pons violated several

provisions of the American Medical Association Principles of

Medical Ethics for his failure to deal objectively and honestly

with the patient and exhibiting a lack of respect for her

dignity. Also, Dr. Pons failed to adhere to ethical principles

when he neglected to seek a consultation regarding Patient 1's

apparent psychiatric problems.

After hearing this evidence, the hearing examiner

concluded that Dr. Pons had violated R.C. 4731.22(B)(6), (14)

and (15). He filed his report and recommendations to that

effect. After considerable discussion, the board approved and

confirmed the findings of fact and conclusions of law, yet

adopted an amended order. The board's order revoked Dr. Pons'

certificate to practice medicine and surgery, stayed the

revocation, and indefinitely suspended his certificate for not

less than one year, subject to conditions.2

Pursuant to R.C. 119.12, Dr. Pons filed an administrative

appeal to the Franklin County Common Pleas Court. The common

pleas court affirmed, finding that the board's order was

supported by reliable, probative and substantial evidence, and

was in accordance with law. Upon further appeal, the court of

appeals vacated the judgment of the common pleas court and

remanded the cause to the board with instructions that the

finding as to violations of R.C. 4731.22(B) be reversed and the

disciplinary action dismissed.

The cause is now before this court pursuant to the

allowance of a motion to certify the record.

Porter, Wright, Morris & Arthur, William M. Todd and

Terri-Lynne B. Smiles, for appellee.

Lee I. Fisher, Attorney General, Susan C. Walker and Diane

M. Weaver, Assistant Attorneys General, for appellant.

Katrina Miller English, urging reversal for amicus curiae,

Ohio State Medical Association.

David Orentlicher, urging reversal for amicus curiae,

American Medical Association.

David Goldberger and Robin Thomas, urging reversal for

amici curiae, Ohio National Organization for Women, Citizen

Action, Committee Against Sexual Harassment, Ohio Coalition on

Sexual Assault, Project Woman, Senator Linda Furney, and

Representative Raymond Miller.

Francis E. Sweeney, Sr., J. In an appeal from a medical

board's order, a reviewing trial court is bound to uphold the

order if it is supported by reliable, probative, and

substantial evidence, and is in accordance with law. R.C.

119.12; In re Williams (1991), 60 Ohio St.3d 85, 86, 573 N.E.2d

638, 639. The appellate court's review is even more limited

than that of the trial court. While it is incumbent on the

trial court to examine the evidence, this is not a function of

the appellate court. The appellate court is to determine only

if the trial court has abused its discretion, i.e., being not

merely an error of judgment, but perversity of will, passion,

prejudice, partiality, or moral delinquency. Absent an abuse

of discretion on the part of the trial court, a court of

appeals may not substitute its judgment for those of the

medical board or a trial court. Instead, the appellate court

must affirm the trial court's judgment. Lorain City School

Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio

St.3d 257, 260-261, 533 N.E.2d 264, 266. See, also, Rossford

Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn.

(1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240, 1241.

Moreover, when reviewing a medical board's order, courts

must accord due deference to the board's interpretation of the

technical and ethical requirements of its profession. The

policy reason for this was noted in Arlen v. State (1980), 61

Ohio St.2d 168, 173, 15 O.O.3d 190, 194, 399 N.E.2d 1251,

1254-1255: "'* * * The purpose of the General Assembly in

providing for administrative hearings in particular fields was

to facilitate such matters by placing the decision on facts

with boards or commissions composed of [people] equipped with

the necessary knowledge and experience pertaining to a

particular field. * * *'" (Quoting Farrand v. State Med. Bd.

[1949], 151 Ohio St. 222, 224, 39 O.O. 41, 42, 85 N.E.2d 113,

114.)

Thus, the narrow issue before us today is to determine

whether the appellate court correctly determined that the trial

court abused its discretion in affirming the board's decision.

For the following reasons, we hold that it did not.

Accordingly, we reverse its decision.

I

The board concluded that the acts, conduct, and/or

omissions of Dr. Pons fell below the minimum standards of care

in violation of R.C. 4731.22(B)(6): "A departure from, or the

failure to conform to, minimal standards of care of similar

practitioners under the same or similar circumstances, whether

or not actual injury to a patient is established." The board

never alleged that Dr. Pons' surgical skills were remiss or

that he lacked basic medical knowledge. However, the board

felt that the care a doctor renders to a patient includes more

than just procedures performed or medications prescribed. The

overall care consists of the entire treatment relationship

between the physician and patient.

In finding that Dr. Pons' overall care of Patient 1 was

deficient, the board specifically found that Dr. Pons exhibited

extremely poor medical judgment by entering into an emotional

and sexual relationship with Patient 1 when he had reason to

believe she was in a vulnerable, unstable, emotional state.

The basis of this belief was that the sexual relationship began

after Dr. Pons had received over one year's worth of complaints

from Patient 1 of depression, anxiety, and marital discord.

Additionally, he knew of her previous psychiatric

hospitalization, he had prescribed anti-depressants for her,

and he had counseled Patient 1 and her husband for their

marital difficulties. Dr. Pons knew, or should have known,

that Patient 1 placed a great deal of trust in him, and that by

entering into an emotional relationship with her this was

likely to be detrimental to Patient 1's already unstable

condition. In doing so, Dr. Pons was not acting in Patient 1's

best interest.

Also, the board determined that Dr. Pons failed to

maintain the level of objectivity that minimal standards of

care dictate by advising Patient 1 on various forms of birth

control while engaging in a sexual relationship with her, thus

serving his own personal desire that she not become pregnant

with his child. In addition, he lacked objectivity when he

failed to insist she see specialists for her back pain and

psychiatric care or counseling for her marital problems.

Indeed, the board felt Dr. Pons took personal advantage of the

fact that Patient 1 and her husband were having marital

difficulties, an intimate fact learned through the professional

relationship.

A medical disciplinary proceeding is a special statutory

proceeding conducted by twelve persons, eight of whom are

licensed physicians. R.C. 4731.01. Thus, a majority of the

board members possess the specialized knowledge needed to

determine the acceptable standard of general medical practice.

In re Williams, supra, at 87, 573 N.E.2d at 640. Hence, the

medical board is quite capable of interpreting technical

requirements of the medical field and quite capable of

determining when conduct falls below the minimum standard of

care. Arlen, supra, at 173, 15 O.O.3d at 194, 399 N.E.2d at

1254.

Dr. Pons' testimony, Patient 1's medical records, and the

expert witness' testimony support the board's finding that Dr.

Pons failed to conform to minimal standards of care. The

common pleas court, finding reliable, probative, and

substantial evidence existed in the record, properly upheld the

board's order. The appellate court incorrectly found an abuse

of discretion and improperly substituted its judgment for those

of the board and the trial court on this finding.

II

The board also found Dr. Pons' behavior violated R.C.

4731.22(B)(14) and (15). R.C. 4731.22(B)(14) and (15)

authorize the board to discipline physicians for violations of

ethical standards adopted by national professional

organizations such as those promulgated by the American Medical

Association ("AMA").

The specific provisions Dr. Pons was charged with

violating include Sections 1, 4, 6, and 8 of the AMA Principles

of Medical Ethics in effect until July 1980, and Sections I,

II, and IV of the AMA Principles of Medical Ethics in effect

after July 1980. These provisions require a physician to

provide competent medical service with compassion and respect

for human dignity, deal honestly and objectively with a

patient, uphold the dignity and honor of the medical

profession, seek consultation where appropriate, and safeguard

the public against physicians deficient in moral character.

The board concluded that Dr. Pons' conduct was neither

honorable nor ethical. The board believed that the necessity

of physician objectivity underlies all the enumerated

provisions. Where there is a lack of objectivity there can be

no assurance that the doctor is acting in the patient's best

interest.

In addition, Dr. Pons' conduct was deceitful because he

used information acquired through the relationship to his own

personal advantage. The board felt it was implausible that Dr.

Pons recommended marriage counseling after beginning his sexual

relationship with Patient 1.

The board also believed Dr. Pons was obligated to obtain a

consultation with a mental health specialist or insist that

Patient 1 accept a referral for these problems.

The board also determined Dr. Pons failed to uphold the

dignity and honor of his profession by maintaining this dual

relationship and exploiting Patient 1's trust.

We find the board was well within its statutory authority

and had the discretion to weigh the evidence and make the

decision that Dr. Pons violated the medical profession's Code

of Ethics and would be sanctioned pursuant to R.C.

4731.22(B)(14) and (15). Cf. Leon v. Ohio Bd. of Psychology

(1992), 63 Ohio St.3d 683, 687, 590 N.E.2d 1223, 1226: "It

takes no citation of authority to safely state that sexual

relations between any professional and a client * * * are

universally prohibited by the ethical regulations of

practically every profession."

In view of the foregoing, we uphold the order of the

medical board. Accordingly, the judgment of the court of

appeals is reversed.

Judgment reversed.

Moyer, C.J., A.W. Sweeney, Douglas, Wright and Resnick,

JJ.,concur.

Pfeifer, J., dissents.

FOOTNOTES:

1. Pursuant to amendments to R.C. Chapter 4731, the section

numbers of this provision have changed at least four times

since its enactment in 1967.

2. The hearing officer recommended an indefinite suspension

for not less than two years.

Pfeifer, J., dissenting. I dissent from the majority's

decision. The court of appeals correctly found that the trial

court abused its discretion in affirming the Ohio State Medical

Board's decision to suspend Dr. Pons for one year.

We grant the medical board the power to discipline doctors

in this state, trusting the board more than the courts to be

able to determine what constitutes acceptable medical

practice. While we have granted the board great discretion,

there is a limit to what it can do. We do not require Ohio's

doctors to give up all their due process rights in order to

practice medicine in Ohio. Orders of the board must be

supported by reliable, probative and substantial evidence, and

must be in accordance with the law.

In this case, the board went beyond its statutory

constraints. Dr. Pons had engaged in a consensual sexual

relationship with a patient, and the board found that to be

objectionable. Since there is no prohibition of such activity

in the Ohio Revised Code, the board was forced to become

creative in order to effectively vent its moral outrage. It

did so with all the subtlety of the proverbial

eight-hundred-pound gorilla that it has become.

The board forced square pegs into round holes, first

claiming that Dr. Pons failed to conform to "minimal standards

of care of similar practitioners under the same or similar

circumstances." As it did in so much of the case against Dr.

Pons, the board relied not on facts but on inferences stacked

on top of inferences. There was no testimony from Patient 1.

There was no testimony from any patient who received any

substandard care from Dr. Pons. All of the medical care Dr.

Pons administered to Patient 1 was appropriate and met

applicable medical standards, and the board did not contend

otherwise. Dr. Pons testified that his medical judgment was

not clouded by his personal involvement with Patient 1.

However, the board conclusorily determined that Dr. Pons'

relationship with Patient 1 "clouded Dr. Pons' judgment and

caused him to lose his objectivity." However, there was

nothing in the record or in the history of Dr. Pons' treatment

of Patient 1 which indicated that he actually did use poor

medical judgment. The board's determination raises the

question as to how any doctor could ever treat a family member

or friend without violating R.C. 4731.22(B)(6).

Dr. Pons also supposedly fell below the minimal standards

of care by having a "sexual relationship with a married patient

who he had reason to believe was suffering from psychiatric,

psychological, or emotional problems." Patient 1 was not

"Sybil," as the board would like to portray her. There was

some evidence that she occasionally was depressed and suffered

some anxiety during the course of their affair. There was no

evidence presented that any such problems were serious enough

to merit treatment. What is more interesting is the board's

inclusion of the word "married" in the description of what Dr.

Pons did wrong. Why is it relevant that the patient with whom

Dr. Pons had his relationship was married? Is the board saying

that if Patient 1 had not been married that Dr. Pons' behavior

would have been acceptable? If the board is going to start

suspending adulterous doctors, this nation is going to have a

bigger health care problem than we thought.

The board also found that Dr. Pons' behavior violated R.C.

4731.22(B)(14) and (15) by breaching the AMA's ethical

principles. However, those principles, at the time relevant

herein, did not prohibit consensual sexual relationships

between doctors and their patients. Not until 1991, long after

the board heard this case, did the AMA's Council on Ethical and

Judicial Affairs announce for the first time in an article

entitled "Sexual Misconduct in the Practice of Medicine" (Nov.

20, 1991), 266 J.A.M.A. 2741, 2745, that sexual contact or a

romantic relationship concurrent with the physician-patient

relationship is unethical.

Since there was no prohibition of such activity, the board

again had to twist the law and the facts to suit its decision,

claiming that Pons was deceitful and exhibited a lack of

objectivity, and a lack of dignity in his care of Patient 1.

The majority opinion backs up the board by citing troubling

dicta from Leon v. Ohio Bd. of Psychology (1992), 63 Ohio St.3d

683, 687, 590 N.E.2d 1223, 1226: "It takes no citation of

authority to safely state that sexual relations between any

professional and a client * * * are universally prohibited by

the ethical regulations of practically every profession."

It very well ought to require a citation of authority to

strip a person of his ability to practice his profession. In

Leon, there was a specific Ohio Administrative Code section

prohibiting sexual contact between a psychologist and a

client. Thus, in Leon there was authority for the discipline

given. Here, there was not, and all of the machinations of the

board cannot change that.

I find the board's action to be unlawful and to be based

on no evidence. The trial court therefore abused its

discretion in upholding the board. I would thus affirm the

court of appeals.