Bash v. Board of Medical Practice

• Decision Date: 04 December 1989
• Citation: 579 A.2d 1145
• Parties: Dr. Nicholas P. BASH, Respondent-Below/Appellant. v. The BOARD OF MEDICAL PRACTICE, Complainant-Below/Appellee. . Submitted:
• Court: Delaware Superior Court

Page 1145

579 A.2d 1145

Dr. Nicholas P. BASH, Respondent-Below/Appellant. v. The BOARD OF MEDICAL PRACTICE, Complainant-Below/Appellee.

Superior Court of Delaware,

New Castle County.

Submitted: Dec. 4, 1989.

Decided: Dec. 22, 1989.

Upon Appeal From a Decision and Order of the Board of Medical Practice.

Richard R. Wier, Jr., Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for respondent-below appellant.

Malcolm S. Cobin, for Bd. of Medical Practice and Ann Marie Johnson, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del.

OPINION

BARRON, Judge.

This case comes before the Court by way of an appeal from a Decision and Order (Order) of the Board of Medical Practice (the Board) dated March 23, 1989. ¹ Pursuant to that Order, Dr. Nicholas P. Bash, a Wilmington psychiatrist, was temporarily suspended from the practice of medicine for a minimum period of one (1) year. The Order of the Board further provided that Dr. Bash may apply for reinstatement of his license at the end of the one (1) year period. If reinstated, however, his license will carry a permanent restriction prohibiting him from treating female patients. The factual scenario which led to the Board's action is summarized below.

I.

In late 1987 and early 1988, the Board received three complaints from three different women each of whom at one time or another received psychiatric treatment from Dr. Bash. These complaints alleged that during the course of their treatment, Dr. Bash had improper sexual contact with each of the complainants. The Board is authorized to investigate complaints of unprofessional conduct. ² An investigation into these allegations was conducted by an Investigation Committee (the Committee) appointed by the Board pursuant to 24 Del.C., § 1732(b). ³ As a result of its investigation, in July, 1988 the Committee filed a complaint with the Board alleging:

1. Dr. Bash induced one of the complainants, (MWN), to have sexual intercourse with him during the course of a therapy session conducted in 1971;

2. Dr. Bash approached another complainant, (MSD), and gave her a firm kiss on the mouth at the end of a therapy session also conducted in 1971;

3. Dr. Bash inappropriately touched the breasts of the third complainant, (GC), at the end of a therapy session conducted in 1987. ⁴

Following its investigation, the Committee requested that the Board hold a hearing to determine whether Dr. Bash's license to practice medicine should be suspended or revoked ⁵ for conduct falling within the parameters of 24 Del.C., § 1731(b)(3) and (11) and Section 15 of the Delaware Board of Medical Practice Rules and Regulations. ⁶ The complaint specifically concluded that Dr. Bash was guilty of "dishonorable or unethical conduct involving the exploitation of the doctor/patient relationship for sexual gratification" and "gross misconduct, negligence and/or incompetence in the practice of psychiatry by virtue of his failure to properly treat" the three complainants.

II.

Pursuant to 24 Del.C., § 1734, ⁷ a three member Hearing Panel (the Panel) was designated by the Board to conduct hearings with respect to the allegations contained in the complaint. Hearings before the Panel were held on October 24 and November 21, 1988, during which the Panel received documentary evidence and heard sworn testimony from witnesses including the complainants, Dr. Bash and Drs. Broudy and DeCherney, both practicing psychiatrists. On January 18, 1989, the Panel issued its opinion with respect to the issues set forth in the complaint of the Committee including findings of fact and conclusions of law as required by 24 Del.C., § 1734(a).

In its opinion, the Panel concluded that the evidence presented at the hearing supported a finding that Dr. Bash had, in fact, committed the acts alleged in the complaint filed by the Committee. As to MWN, the Panel found that a relationship between Dr. Bash and MWN did in fact develop and progress over time which ultimately led to sexual intercourse between the two during the 1971 therapy session. ⁸ The Panel further found that Dr. Bash's act of having sexual intercourse with MWN was unethical conduct and that the continued treatment of MWN by Dr. Bash, once intercourse occurred, was unethical and harmful to MWN. ⁹ As to MSD, the Panel found that Dr. Bash did kiss her on the mouth in an inappropriate manner. The Panel further found that Dr. Bash's explanation that her accusations were the result of a sexual fantasy resulting from a toxic amount of Ritalin in her system was not credible. As to GC, the Panel found that Dr. Bash did grab GC's breasts as alleged. The Panel found as not credible Dr. Bash's explanation that he did not grab GC's breasts but rather was attempting to push her away as she approached to embrace him.

Based upon its findings of fact, the Panel concluded that Dr. Bash was guilty of unethical conduct likely to deceive, defraud and harm the public in violation of 24 Del.C., § 1731(b)(3) as a result of his sexual relationship with MWN. The Panel further concluded that the relationship also constituted an exploitation of the doctor/patient privilege for sexual gratification in violation of Section 15 of the Board's Rules and Regulations and that Dr. Bash's failure to refer MWN after the sexual encounter constituted unethical conduct likely to harm the public, also in violation of 24 Del.C., § 1731(b)(3). As to MSD and GC, the Panel concluded that Dr. Bash's conduct toward those complainants constituted unethical conduct likely to harm the public, in violation of 24 Del.C., § 1731(b)(3). ¹⁰ As a result of its findings of fact and conclusions of law, the Panel recommended that the Board revoke Dr. Bash's license to practice medicine in Delaware. ¹¹

III.

On March 14, 1989, a formal hearing was held before the full Board excluding the members comprising the Committee and the Panel, at which time the Board made its own conclusions of law and a determination of the disciplinary action to be taken against Dr. Bash. As required under 24 Del.C., § 1734, the findings of fact contained in the opinion of the Panel were adopted by the Board and incorporated into its Order issued under date of March 23, 1989. In addition, the Board specifically adopted and incorporated into its Order those conclusions of law found by the Panel which held that Dr. Bash's conduct with respect to each of the three complainants was in violation of 24 Del.C., § 1731(b)(3) and Section 15 of the Board's Rules and Regulations. The Board also concluded, contrary to the findings of the Panel, that Dr. Bash's conduct with respect to each of the three complainants also constituted gross misconduct in the practice of medicine in violation of 24 Del.C., § 1731(b)(11). On this basis, the Board held that Dr. Bash could not continue to safely practice medicine and imposed the license suspension set forth in its Order. On May 8, 1989, Dr. Bash filed this appeal from the Board's Order.

In support of his appeal, Dr. Bash sets forth numerous contentions, the proper resolution of any of which would, in his view, justify this Court's reversal of the Order of the Board. Because these issues involve important substantive and procedural questions of law relating to this case and future proceedings before the Board, the Court will, within the permissible scope of review, address each of these issues in the order in which they have been presented by Dr. Bash.

IV.

In pertinent part, 24 Del.C., § 1736(a) provides that an appeal from an Order of the Board shall be made in the same manner as provided by the Superior Court Civil Rules for appeals from commissions, boards and agencies. The appeal shall be on the record without a trial de novo. 29 Del.C., § 10142(c). Under the well-established standard and scope of review imposed on this Court by statute and case law, the Court's duty is to examine the record and determine if there is substantial evidence to support the findings and conclusions of the Board. If such evidence exists and the Board has made no error of law, its decision must be affirmed. Mooney v. Benson Management Co., Del.Super., 451 A.2d 839 (1982), citing 29 Del.C., § 10142; Air Mod Corp. v. Newton, Del.Supr., 215 A.2d 434 (1965). Substantial evidence is more than a scintilla and less than a preponderance. Olney v. Cooch, Del.Supr., 425 A.2d 610 (1981).

A. Sufficiency of the Record

The first issue upon which this appeal is based centers upon the legal sufficiency of the factual record as set forth in the Board's Order. Dr. Bash asserts that the Board's decision "is premised upon no clear statement of facts and prevents Dr. Bash and this Court from knowing what facts the Board relied upon in punishing him." In the Court's view, the recitation of facts contained in the Panel's opinion under the heading "finding of fact" is clearly sufficient to support the Board's decision. The critical factual questions in this case were whether Dr. Bash had inappropriate sexual contact with the complainants as alleged in the complaint and whether it was unethical to continue to treat MWN after she and Dr. Bash engaged in sexual intercourse. The act of sexual intercourse with MWN was admitted by Dr. Bash at the Panel hearing. With regard to MSD and GC, the Panel, after hearing evidence on two separate occasions found that Dr. Bash "did kiss MSD on the mouth in an inappropriate manner" and "did in fact grab GC's breasts as alleged, ..."

As required under 24 Del.C., § 1734, the Board adopted the findings of fact contained in the Panel's opinion and incorporated those findings into its Order. A copy of the Panel's opinion, which included the findings of fact, was attached to the Board's Order. It is abundantly clear to the Court that the findings of fact relied upon by the Board in its Order were those set forth in the opinion of the Panel. It is equally clear that those facts were supported by substantial evidence and were sufficient to support the Board's Order and...