Froehlich v. Ohio State Med. Bd.
| Decision Date | 15 March 2016 |
| Docket Number | No. 15AP–666.,15AP–666. |
| Parties | Kurt W. FROEHLICH, M.D., Appellant–Appellant, v. OHIO STATE MEDICAL BOARD, Appellee–Appellee. |
| Court | Ohio Court of Appeals |
Maguire & Schneider, LLP, Karl H. Schneider (argued), Mark R. Meterko, and Britney S. Brouwer, Columbus, for appellant.
Michael DeWine, Attorney General, and Melinda R. Snyder (argued), for appellee.
LUPER SCHUSTER
, J.
{¶ 1} Appellant, Kurt W. Froehlich, M.D., appeals from a decision and entry of the Franklin County Court of Common Pleas affirming the order of appellee, State Medical Board of Ohio (“the board”), permanently revoking Froehlich's license to practice medicine and surgery in Ohio. For the following reasons, we affirm.
{¶ 2} Froehlich is a physician who practices obstetrics and gynecology as a solo practitioner. By notice of opportunity for hearing dated December 11, 2013, the board notified Froehlich that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. In the notice, the board alleged Froehlich engaged in inappropriate sexual contact with two patients in violation of R.C. 4731.22(B)(20)
and Ohio Adm.Code 4731–26–02(A). Additionally, the board alleged Froehlich was found guilty of a misdemeanor in the course of practice in violation of R.C. 4731.22(B)(11). The board alleged these violations also constituted a violation of R.C. 4731.22(B)(6). Froehlich timely requested a hearing in response to the notice.
{¶ 3} At the hearing commencing June 23, 2014, Froehlich testified regarding the allegations contained in the notice. According to Froehlich's testimony, on June 17, 2010, Patient 1 came to his office for an annual checkup and Pap smear
. After he performed the examination and after the chaperone left the room, but while Patient 1 was still in a gown on the examination table, Froehlich testified Patient 1 asked him a question about sexual arousal and the location of the “G-spot.” (June 23, 2014 Tr. Vol. I, 33.) Froehlich explained that the G-spot is “a location in the anterior vaginal wall” consisting of a dense area of nerves, though he agreed there is some dispute in the medical community about whether such an area actually exists. (June 23, 2014 Tr. Vol. I, 34.) Froehlich testified he used his fingers to physically locate Patient 1's G-spot. Froehlich did not document in Patient 1's record either Patient 1's question or his actions in physically locating her G-spot.
{¶ 4} Froehlich testified that he subsequently encountered Patient 1 at the hospital where they both worked. In a call room at the hospital, Froehlich said he again demonstrated for Patient 1 the location of her G-spot and stimulated her to orgasm. Approximately one week later, Froehlich said he had a “sexual relationship” with Patient 1, engaging in sexual intercourse with her at the hospital. (June 23, 2014 Tr. Vol. I, 38.) In his testimony, Froehlich characterized his sexual encounters with Patient 1 as “[p]roblematic,” and he acknowledged he was in a position of authority over Patient 1 because she worked in the labor and delivery area of the hospital. (June 23, 2014 Tr. Vol. I, 41.)
{¶ 5} Patient 2 had been Froehlich's patient since 2007. Froehlich testified he was uncertain whether he helped Patient 2 locate her G-spot during an office visit. However, the board's investigator, Michael W. Staples, testified at the hearing and read from a written statement Froehlich had prepared for Staples in which Froehlich stated he “showed [Patient 2] where her [G-spot] was,” and also “saw her at the hospital and stimulated her to orgasm.” (June 23, 2014 Tr. Vol. I, 233.) Froehlich testified the sexual contact with Patient 2 occurred in an administrative room of the hospital in 2012.
{¶ 6} The board also heard testimony from S.F., a medical assistant who worked in Froehlich's office. S.F. testified that on July 30, 2012, she stopped in Froehlich's office to say goodbye as she was preparing to leave work. According to S.F.'s testimony, Froehlich “stood up and started walking towards [her] and—and said something about how he had wanted [her] since [she] started working there.” (June 23, 2014 Tr. Vol. I, 126.) S.F. said Froehlich then placed his hand on her side and “started rubbing up and down from probably about the breast area down to the hips,” and S.F. said she remembered being “very scared.” (June 23, 2014 Tr. Vol. I, 126.) S.F. said she started to push Froehlich away and attempted to back away from him, but Froehlich “reached around and went up [her] shirt and he got up under [her] bra and had a hand completely on [her] right breast.” (June 23, 2014 Tr. Vol. I, 127.) S.F. testified that she pushed his hand out of her shirt and tried to leave, but Froehlich then put his hand under her pants, one or two inches under her underwear. After she pushed his hand away and again tried to leave, S.F. said Froehlich turned her around, got close to her face and said “[y]ou know, I think it's best that you don't work here anymore.” (June 23, 2014 Tr. Vol. I, 128.)
{¶ 7} S.F. reported the incident to the police and provided a written statement to the police. Froehlich ultimately entered a plea of no contest and was found guilty of assault in violation of R.C. 2903.13
, a first-degree misdemeanor.
{¶ 8} At the hearing, Froehlich testified regarding the incident with S.F., stating he perceived S.F. as being flirtatious during this encounter. Froehlich testified he was standing behind S.F. and put a hand on her hip and another hand on her shoulder, that S.F. leaned back toward him, but that he said either “I can't,” or “[w]e can't.” (June 23, 2014 Tr. Vol. I, 95.) Froehlich testified that S.F. told him he was “a bad boy,” and walked out of the office. (June 23, 2014 Tr. Vol. I, 95.) Froehlich also described several instances before the assault in which he perceived S.F. to behave flirtatiously toward him. Among these instances, Froehlich described a time that he walked in on S.F. using a breast pump to express breast milk and a separate occasion in which he asked S.F. to administer a testosterone
injection to his buttocks.
{¶ 9} Following the hearing, on November 25, 2014, the hearing examiner issued a report and recommendation finding Froehlich's sexual conduct with Patient 1 and Patient 2 violated Ohio Adm.Code 4731–26–02
, R.C. 4731.22(B)(20), and R.C. 4731.22(B)(6). The hearing examiner additionally found Froehlich had been found guilty of a misdemeanor in the course of practice, in violation of R.C. 4731.22(B)(11). Although the hearing examiner recommended a one-year suspension of Froehlich's certificate to practice medicine, he noted that “[g]iven Dr. Froehlich's sexual misconduct with two patients and criminal behavior toward an employee, the Board would be well-justified in permanently revoking Dr. Froehlich's certificate.” (Report and Recommendation, 30.) Froehlich filed objections to the hearing examiner's proposed order.
{¶ 10} At the board's meeting on January 14, 2015, Froehlich and his counsel addressed the board. After discussing the nature of Froehlich's conduct and the appropriate disciplinary action, the board voted to modify the hearing examiner's proposed order and permanently revoke Froehlich's certificate to practice medicine and surgery in Ohio.
{¶ 11} Froehlich's counsel filed a motion for reconsideration, arguing there had not been a proper motion to amend the proposed order. Froehlich's counsel further sought clarification as to whether the amended order included a 30–day wind-down period. In response to Froehlich's motion, the board voted to reconsider the matter. Froehlich suggests the audio recording of the board's meeting demonstrates his counsel was not speaking out of turn, but the audio recording is not a part of our record and, thus, we must rely on the board's minutes. Pursuant to the board's minutes:
Mr. McGovern [Froehlich's counsel] rose and began addressing the Board. Not having been recognized, Mr. Kenney ruled that Mr. McGovern was out of order. Mr. McGovern continued to attempt addressing the Board. At Mr. Kenney's direction, the Ohio State Highway Patrolman present escorted Mr. McGovern from the meeting.
(Excerpt from the Draft Minutes of Jan. 14, 2015 hereinafter “Board's Minutes,” 5.)
{¶ 12} Following the removal of Froehlich's counsel from the meeting, the board made a motion to amend the proposed order. The board voted to include a 30–day wind-down period in the amended order, and the board further voted that Froehlich's objections would not be addressed as part of the reconsideration. With the inclusion of the 30–day wind-down period, the board approved the amended order permanently revoking Froehlich's certificate to practice medicine and surgery in Ohio.
{¶ 13} On February 16, 2015, Froehlich filed an appeal from the board's order to the trial court. Froehlich argued the (1) board's order is invalid due to alleged procedural errors the board made during its January 14, 2015 meeting, (2) the board violated Ohio's open meeting requirement contained in R.C. 121.22, (3)
the board erroneously concluded that his misdemeanor assault conviction occurred in the course of practice, and (4) the board erred in considering conduct not contained in the notice of opportunity for hearing. The trial court concluded reliable, probative, and substantial evidence supported the board's order and that the board's order is in accordance with law and, thus, affirmed the board's order. The trial court journalized its decision in a June 9, 2015 decision and entry. Froehlich timely appeals.
{¶ 14} Froehlich assigns the following errors for our review:
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