reversing and remanding for further findings on whether a physician took advantage of his position in order to induce a patient into a sexual relationship and whether the physician’s failure to refer the patient for counseling was related to their sexual relationship
How later courts described this case
- reversing and remanding for further findings on whether a physician took advantage of his position in order to induce a patient into a sexual relationship and whether the physician’s failure to refer the patient for counseling was related to their sexual relationship
- “We recognize that conduct may be substantially related to a physician’s fitness though the conduct does not relate to the skills needed for the practice of medicine.”
Written by the judges who cited it.
The opinion
NEWSOM, Acting P. J., Dissenting.
In my opinion Business and Professions Code section 726, being entirely unintelligible, is a fortiori void as being unconstitutionally vague, i.e., no reasonable and practical construction can be given its language, and in any event it gives no fair warning of the conduct one might conjecture that it seeks to prohibit.
Thus, as here invoked, the section purports to proscribe sexual relations between a doctor and a patient “which [are] substantially related to the qualifications, functions, or duties of the occupation for which a license was issued . . . .”
As I am of the opinion that sexual relations cannot, under any conceivable circumstances, relate, substantially or otherwise, to any qualification, or function, or duty, of any occupation (licensed or unlicensed), I am forced to my conclusion that, being meaningless, the statute is unconstitutional both on its face and as applied to the present case.
I am opposed to remand for other reasons as well. So far as I can discern, the record contains no evidence which could support the finding we invite the trial court to make concerning Dr. Gromis’s abuse of his professional relationship with his former patient.
My reading of the record compels me to conclude that—legally, at any rate—Dr. Gromis is blameless, that the sexual conduct of the parties was the result of mutual attraction and affection, however misplaced, and that the *601 entire sorry proceeding below is a kind of travesty in which the state has acted principally as the conduit for venting the recriminations of a troubled person. Consequently, for the reasons set forth in Atienza v. Taub (1987) 194 Cal.App.3d 388 [ 239 Cal.Rptr. 454 ], I would reverse.
A petition for a rehearing was denied August 27, 1992, and appellant’s petition for review by the Supreme Court was denied October 16, 1992.