ORIGINAL PROCEEDING in mandate. Timothy M. Frawley, Judge. (Super. Ct. No. 34-2010-80000448)
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
The Medical Board of California (the Board) ordered that petitioner William Joseph Roy, Jr., M.D., be publicly reprimanded, after finding he committed professional misconduct by engaging in sexual relations with a patient.
Roy filed a petition for writ of administrative mandate in the superior court, seeking to overturn the Board's ruling. The court denied the petition for writ of mandate. Exercising its independent judgment on the evidence, the trial court upheld the Board's decision, including its finding that Roy violated Business and Professions Code section 726.*fn1
Roy filed a petition for writ of mandate in this court, seeking to vacate the trial court's decision. We granted an order to show cause and issued an alternative writ.
Two issues are presented for review: (1) whether substantial evidence supports the trial court's finding that Roy willingly allowed a patient to fondle or grope an intimate part of his body for a substantial period of time; and (2) if so, whether the conduct constituted an act of "sexual relations" within the meaning of section 726. We answer "yes" to both questions and therefore deny the petition.
On October 23, 2007, the Executive Director of the Board filed an accusation against Roy charging him with having sexual relations with female patients J.L. and V.H. and committing gross negligence based upon the same conduct.
Roy filed a notice of defense and the case proceeded to a disciplinary hearing before an administrative law judge (ALJ) in October 2008.
The Evidence at the Administrative Hearing
A. Events Prior to May 18
The facts surrounding the events prior to May 18, 2001 (all further unspecified calendar dates are to that year) are largely undisputed. Hence, we draw our factual summary in this section from the trial court's written ruling.
"Dr. Roy is a highly trained Gynecological Oncologist. . . . [¶] . . . [¶] At the time of the incident in this case V.H. was a 35-year-old woman who worked at a bank in Escondido. She was in the process of getting divorced. In its Decision, the [Board] described her as a 'single, bright, attractive, assertive young woman,' and as a 'strong, independent woman who was seeking adventure."
On April 1, V.H. was admitted to the hospital by her primary obstetrician, Dr. Jerome Sinsky. When a CT scan revealed a cystic mass in her mid-pelvis, Sinksy advised her to have it removed and referred her to Roy to perform the surgery. Roy performed the surgery on April 3. The mass turned out not to be malignant and V.H. was instructed to follow up with doctors Roy and Sinksy. On April 24, "Dr. Roy examined V.H. post-operatively and concluded that she was doing well. [He] instructed V.H. to return to his office in four weeks."
On May 8, Dr. Sinsky evaluated V.H. He told her she was recovering well, but instructed her to call Roy's office to determine whether follow-up was necessary. When V.H. telephoned Roy, he began disclosing details about his personal life. He told her it was his birthday, that his car needed repair, and that he was having difficulty obtaining a California driver's license even though he had been a law enforcement officer. V.H. found this "'charming'" and "became 'interested'" in him. She decided to create a pretext to speak with him further. In a phone call, which she initiated, V.H. asked Roy if she could interview him for an English class. Roy agreed, and instructed his nurse to schedule V.H. for the last office appointment on May 18.
Roy examined V.H. in his office on May 18. He prescribed an antibiotic and "instructed [her] to have a B12 level drawn to find out if her surgery had caused a malabsorption of B12." He also told her to continue seeing Dr. Sinsky "for routine ob/gyn care."
After the office visit concluded, V.H. and Roy agreed to meet at P.F. Chang's restaurant for an early dinner. They took separate cars and met at the restaurant between 4:00 and 5:00 p.m. During dinner, V.H. interviewed Roy on a variety of topics, including his personal history, his hobbies and his reasons for becoming a doctor. After dinner, Roy walked V.H. to her car. The plan was for V.H. to drive Roy to the valet area where his car was parked.
What took place next was the subject of conflicting testimony. V.H. testified that, when they got to her car, she thanked Roy, told him she had a nice time and asked if they could "get together" again. Roy declined, telling her that she was his patient, that he "couldn't be having some sort of relationship with [her]," and that he "couldn't trust himself around [her]." V.H. replied that she felt like she was no longer a patient of his, but Roy was not persuaded.
At this point, V.H. and Roy were standing in front of her car. Roy held out his hand to her to shake hands, but "somehow that became like we were hugging each other." The encounter then took on a much different character:
"[BOARD'S ATTORNEY:] And then what happened?
"[V.H.:] And then things took more of a sexual nature.
"[BOARD'S ATTORNEY:] Were you outside the car or inside the car?
"[BOARD'S ATTORNEY:] Did they take more of a sexual nature--did you stay outside?
"[BOARD'S ATTORNEY:] Did you ever get in the car?
"[BOARD'S ATTORNEY:] Did it continue in the car?
"[BOARD'S ATTORNEY:] If you could describe it as heavy petting or ...