Tag: sexual relations with a patient

Disciplinary Action, Investigation, Medical Board, Misdemeanor conviction, physicians, State Medical Board of Ohio

Admissions to Board Investigator Can Be Used Against Physician in Criminal Trial

On December 15, 2020, the Ohio Supreme Court ruled 6-1 that a physician’s admissions made to an Ohio Medical Board investigator can be used against the physician in his criminal trial.

In 2017, three patients accused Dr. James Gideon of inappropriate touching during office visits.  Gideon told Bluffton police he did not inappropriately touch any patients.  Subsequently, however, an Ohio Medical Board investigator made an unannounced visit to Gideon’s office.  Gideon, who was aware of the Ohio Medical Board legal requirement to cooperate with and provide truthful answers to the investigator, admitted to “touching certain areas on the patients and succumbing to temptation”. The investigator provided these admission to Bluffton police.

Gideon was charged with three misdemeanor counts of sexual imposition.  At trial, he argued that the statements he made to the investigator should be suppressed based on the Fifth Amendment protection from being forced to incriminate himself.

The trial court did not suppress Gideon’s incriminating statements because it found that Gideon voluntarily made the statements to the investigator.  Gideon was found guilty in all three cases and was sentenced to 180 days in jail.

On appeal, the appeals court ruled that the trial court should have suppressed the incriminating statements because his statements were not voluntary.

Upon review, the Ohio Supreme Court reviewed that the Fifth Amendment to the U.S. Constitution includes the right to remain silent where a person’s replies might be used against the person in future criminal proceedings.

The Ohio Supreme Court held that, in order to determine that Gideon’s statements were coerced in violation of his Fifth Amendment rights, Gideon had to demonstrate that (i) he subjectively believed that failure to cooperate with the investigator would lead to the loss of his license, and (ii) his belief that he was being threatened was objectionably reasonable by providing some evidence of pressure beyond merely directing him to cooperate in the investigation.  The Ohio Supreme Court found that Gideon’s belief that he was being threatened was not objectively reasonable under the facts and circumstances of the investigation.

Health care and other professional licensees in Ohio must be aware that information provided to an investigator – whether that is an investigator employed by the Medical Board, Nursing Board, Pharmacy Board, or any other board or agency – can be used against the licensee in a disciplinary action and in a criminal proceeding.  Legal counsel is recommended for any licensee in connection with any Board investigation or disciplinary action.

If you have any questions about this article or the State Medical Board of Ohio, please feel free to contact attorney Beth Collis at (614) 628-6945, or attorney Todd Collis at (614) 628-6962.

State Medical Board of Ohio, Uncategorized

Physicians .. do you need a vacation?

I have written about work/life balance in the past (see “Do You Have Balance in your Life,” April 18, 2012) however, as the holiday season approaches, I think it is important to consider whether this is a good time to suggest taking a break from the hectic pace of your practice. In the news again today, there was a story about how Americans are given less vacation days per year than any other major industrial nation (10 days vs. 30 days for most Europeans) and that Americans rarely use all their vacation days. http://today.msnbc.msn.com/id/3041440/vp/50068545#50068545

Many people think that they are too busy to take a vacation or that if they leave for even a few days they will return to even more work than when they left. In some cases, Americans are afraid that if they do take a few days off their bosses will recognize that they are dispensable and may re-assign their work and their job to others. Despite whatever real or imaginary fears you might have about taking a break from work, the reality is that everyone needs to rest, relax and step back from the stress of their daily lives so that they have the energy to return to the workplace prepared to work. Physicians are no exception. Physicians deal with extremely stressful situations on a daily basis. Failure to take the appropriate breaks from your practice can lead to weight gain, depression, additional stress and poor decision-making.

As noted in previous posts, stress can lead physicians to make poor decisions related to patient care or can lead to them making poor personal decisions such as drinking and driving, committing a boundary violation with a patient, or seeking unacceptable ways to relieve stress such as sharing personal information with patients or “friending” patients on social media sites.  Ultimately, failure to implement appropriate stress management tools, including taking a vacation, can lead to future professional problems.

Whether you choose to stay home for a “staycation” or take that long-awaited trip, give yourself (and your practice) a break. It will do you a world of good.

As always, if you have any questions about the State Medical Board of Ohio or this post, please feel free to call me at (614) 486-3909 or email me at beth@collislaw.com.  My office will be closed from December 24, 2012 to January 3, 2013 to give everyone at CSC a much needed break.

State Medical Board of Ohio, Uncategorized

The Digital Age Brings Down Another Prominent Figure

In the past, I have written about the dangers that participating in social media can present to medical professionals (August 23, 2012 post “Social Media Can be a Dangerous Pastime for Medical Professionals”).  The resignation of General David Petraeus yet again demonstrates that the digital age presents significant perils to those individuals who ignore or attempt to circumvent the appropriate use of such media.

I found it interesting that it has been reported that General Petraeus and Paula Broadwell allegedly wrote emails in “draft”, left the drafts in a draft email folder which they could both access and read, but did not send to each other, thereby attempting to avoid creating a trail of emails.

Engaging in social media creates a trail that can be used by employers, governmental agencies, criminal investigators, and State licensing boards as evidence of wrongdoing.  When a professional, like a physician, engages in email, texting, Facebook, Twitter, or other forms of social media with patients, they risk being determined to have committed a boundary violation with a patient.  A physician may not engage in a personal, sexual, or financial relationship with a patient.

In the past, these relationships were more difficult for employers or governmental agencies to prove because, in many instances, cases came down to a “he said – she said” situation.  However, in the digital age, impermissible relationships are documented in emails, texts, photos, videos, Facebook posts, and Tweets.

It is a violation of the State Medical Board of Ohio’s laws and rules to engage in a personal, sexual, intimate, or financial relationship with a patient.  Such relationships subject a physician to discipline by the Board.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to email me at beth@collislaw.com or call me at 614-486-3909.

State Medical Board of Ohio

Ohio Courts will not reverse Medical Board decisions if the sanction seems too harsh

I recently read of a Medical Board disciplinary matter in the State of Illinois, in which the Illinois Medical Board revoked a physician’s medical license for engaging in a sexual relationship with a patient. Then, the Illinois Appeals court reversed the decision and sent the case back to the Illinois Board to issue an alternative sanction after finding the sanction was “overly severe” given the physician’s conduct. William Joel Kafin v. The Division of Professional Regulation of the Department of Financial and Professional Regulation.   I was struck by this case, as this would never happen in Ohio.

In Ohio, under Ohio Revised Code Chapter 119, decisions of the State Medical Board can be appealed to the Franklin County Courts. The Court will then determine if the decision of the Board was based on reliable, probative and substantial evidence and is in accordance with law. Pons v. Ohio St. Med. Bd., 66 Ohio St.3rd 619, 621. However, case-law exists in Ohio that the Courts will not reverse a decision of the Medical Board purely on the belief that the sanction is too harsh. Henry’s Cafe, Inc. v. Bd. of Liquor Control, (1950), 170 Ohio St.233. Even if the evidence is clear that the Ohio Medical Board imposed a sanction that was different or harsher than was imposed in other similarly situated cases, the Courts still not reverse a Medical Board decision.

The only way to obtain relief from a Medical Board decision by the Courts is to show that the Board based its decision on evidence that was contrary to law or was not reliable, probative or substantial. While it is not unheard of to have a Medical Board decision reversed by the Court, it is certainly an uphill battle.

It is the intent of Ohio administrative procedure law that state agencies be given the authority to regulate others in their profession. Arlen v. State Med. Bd (1980), 61 Ohio St.2d 168. Therefore, if a physician is issued a Notice of Opportunity for Hearing (citation letter), it is important to put your best case forward at the administrative hearing before the Medical Board.  The Court will rarely disturb the final decision of the Medical Board.  Unlike Illinois, Ohio courts will not reverse a Medical Board decision because the Court thinks the sanction is too harsh.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to email me at beth@collislaw.com or call me at (614) 486-3909 or see our firm website at www.collislaw.com.

State Medical Board of Ohio

Social media can be a dangerous pastime for medical professionals

You have probably seen the “news” reports in the past two days of a naked Prince Harry having a good time in Las Vegas. These clandestine photos were obviously taken when Prince Harry believed that  he was in a private setting. However, they were secretly released to the press and quickly went viral to the great embarrassment of the Royal Family.

You may wonder what this has to do with physicians and the medical profession? We are now in a world where virtually everyone is carrying a camera/video camera on their phones with the ability to take and upload photos and videos to the internet and to the world in moments.  Behaviour that professionals may have engaged in that they thought was private may now be published to the world.

I have not seen a case yet where the Ohio Medical Board uses video footage of a physician “acting badly” as evidence of impairment or inability to practice medicine, however, in my opinion it is just a matter of time. Physicians need to be aware that the Medical Board can take an action against a physician for their conduct, even if it is not related to the practice of medicine. You do not need to be “falling down drunk” at work to be disciplined by the Medical Board. A photo or video of you clearly impaired at a bar taken at 2am when you are scheduled for surgery at 7am could serve as the basis for discipline.

Social media can also be evidence of a boundary violation with a patient. Do you “friend” patients on Facebook? Do you have photos of yourself and a patient taken in social settings? These could all constitute boundary violations with patients.

Social media can be a wonderful tool to reconnect with old friends and to share photos with family members and friends. But, it can also lead to trouble for professionals if not used wisely. As physicians, your conduct needs to be professional 24/7.

As always, if you have any questions about this post or about the State Medical Board in general, please feel to contact me at 614-486-3909 or email me at beth@collislaw.com.

State Medical Board of Ohio, Uncategorized

Physician/patient relationship = power imbalance

The State Medical Board of Ohio addressed two cases at its March meeting concerning the physician-patient relationship.  http://www.med.ohio.gov/pdf/Agenda/Agenda%20-2012/03-12agenda.pdf

In one case, the Medical Board suspended the license of a physician for 180 days after a hearing based on the finding that the physician had engaged in a sexual relationship with an indigent patient after providing the patient with “free” medical care and “free” medicine. From the physician’s perspective, she honestly believed that she was providing a medical service to the patient that he could not otherwise afford and that she should not then be “punished” for providing this care.   The physician did not comprehend that having a personal (read: sexual) relationship with the patient violated the physician/patient relationship.  Regardless of the fact that the medical care provided to the patient without charge, a physician-patient relationship was created.  The Board suspended the physician’s license for 180 days for the boundary violation.

In the second case, the State’s attorney offered for Board approval a Consent Agreement  for a physician who had engaged in a sexual relationship with a patient, which proposed to impose no active suspension on the physician’s license. The rationale given by the State’s attorney for no suspension was the fact that the patient was also the corporate attorney for the medical practice and therefore the legal staff did not believe that there was the same imbalance of power between the physician and the patient that usually leads to physician discipline. The state’s attorney argued that the physician and attorney/patient were on a more even footing.  The state’s attorney argued there was no imbalance of power and consequently no suspension should be imposed on the physician’s license.

The Board members did not agree with this argument. In a rarely seen move by the Board, the proposed Consent Agreement, was rejected by the Board.  While this is a very unusual fact pattern, it clearly shows the Board believes strongly about the inherent imbalance of power in a physician-patient relationship.

As always, if you have any questions about this post or about the medical board in general, please feel free to call me at 614-486-3909 or email me at beth@collislaw.com.