Gromis v. Medical Board, A054514

CourtCalifornia Court of Appeals
Citation8 Cal.App.4th 589,10 Cal.Rptr.2d 452
Docket NumberNo. A054514,A054514
PartiesMichael William GROMIS, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent.
Decision Date30 July 1992

[8 Cal.App.4th 591] W. Scott Quinlan, Roger T. Nuttall, Nuttall, Berman & Associates, Fresno, for Michael W. Gromis, M.D.

Daniel E. Lungren, Atty. Gen., Joel S. Primes, Supervising Deputy Atty. Gen., Sacramento, for Medical Bd. of California.

DOSSEE, Associate Justice.

In this administrative mandamus action, the question is whether the Medical Board of California (Medical Board) may discipline a physician who dated and engaged in consensual sexual activity with a patient.

PROCEDURAL HISTORY

In June 1989, an accusation was filed by the Board of Medical Quality Assurance charging Michael William Gromis, M.D., with unprofessional conduct in that he engaged in sexual activity with a patient, in violation of section 726 of the Business and Professions Code. 1 The matter was heard by an administrative law judge (ALJ) from the Office of Administrative Hearings, who concluded that cause for discipline had been established and ordered Dr. Gromis's license to practice medicine revoked, with the revocation stayed, and Dr. Gromis placed on probation for five years and suspended from the practice of medicine for ninety days. The Division of Medical Quality of the (newly named) Medical Board declined to adopt the ALJ's proposed decision and heard additional arguments. In the end, however, the division adopted the ALJ's decision but reduced the period of suspension to 60 days.

Dr. Gromis then filed a petition for writ of mandate seeking to set aside the order of the Medical Board. The trial court reviewed the administrative [8 Cal.App.4th 592] record and, exercising its independent judgment, denied the petition. Dr. Gromis (hereafter plaintiff) appeals.

FACTS

In administrative mandamus proceedings, the trial court exercises its independent judgment on the evidence before it, while the appellate court merely reviews the record as a whole to determine whether the trial court's findings are supported by substantial evidence. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135, 181 Cal.Rptr. 732, 642 P.2d 792; Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412, 210 Cal.Rptr. 509.) On appeal, the record is viewed in the light most favorable to the respondent, indulging all reasonable inferences and resolving all conflicts in support of the judgment. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052, 236 Cal.Rptr. 526.) In light of these principles, we summarize the facts.

Dr. Gromis is a physician practicing family and internal medicine. Tina M. had been a patient of Dr. Gromis since 1986. She considered him her primary care physician and went to him for advice and treatment of various physical ailments (e.g., stomach problems, eye irritation, sinus problems, ear infection). During the events at issue, Ms. M. was 41. She had completed two years of college and worked as a law librarian.

In November 1987, Ms. M., during an office visit, told Dr. Gromis she was emotionally distressed from marital problems. On January 14, 1988, Ms. M. and Dr. Gromis mutually agreed to meet for lunch. He initiated the date, and she agreed. At lunch, Ms. M. again mentioned her marital difficulties, and Dr. Gromis told Ms. M. about his own marriage. Soon thereafter, the two met again for lunch. Ms. M. asked Dr. Gromis if she should see another doctor for her emotional problems, but he replied that doctors made too much of anxiety syndrome and that was not her problem.

A few days later, on January 21, Ms. M. agreed to meet Dr. Gromis at his home. She parked her car in his garage, and he came out to meet her. They walked into the house, and Dr. Gromis immediately whisked her off her feet and carried her into the bedroom, where they had sexual intercourse.

A week later, on January 28, the two arranged to meet at a hotel during the lunch hour. When Ms. M. arrived at the room, Dr. Gromis immediately tried to undress her, but Ms. M. protested that she had to leave. Dr. Gromis invited her to come back to the room after work, but Ms.

M. declined. She had decided not to see him socially any more

[8 Cal.App.4th 593] She still considered him her physician, however, and a few days later, on February 1, 1988, she visited his office for a sore throat. During the visit, Dr. Gromis mentioned he was going to Switzerland and said that if she had been single, he would have asked her to go with him. At the end of the examination, he lifted her from the table, kissed her on the cheek and put her on the floor.

A few weeks later, on February 20, after Dr. Gromis returned from his trip, Ms. M. agreed to meet him at a motel, where they had intercourse. Ms. M. asked Dr. Gromis if she should see another physician, but he replied that it wasn't necessary. Then he added that he could treat her for anything above the waist, and she should see another physician for anything below the waist. Later that day, Ms. M. met Dr. Gromis and his children at the Chinese Festival.

On February 23, 1988, Ms. M. visited Dr. Gromis in his office for a cyst on her lip. Dr. Gromis referred her to another doctor, who removed the cyst surgically. The next day, Ms. M. fell down some stairs at work and injured her hip and leg. On February 25, she went to Dr. Gromis for an examination; he referred her to a radiologist. About this time, Ms. M.'s husband became suspicious, so they stopped seeing each other although they continued to speak on the phone.

On March 18, 1988, Ms. M. decorated Dr. Gromis's office with a banner for his 40th birthday. Three days later, the two met for a walk in the park. At one point, Dr. Gromis pushed Ms. M. up against the restroom building and lifted her dress. Ms. M. resisted, and they walked back to the car.

A few days later, in a telephone conversation, Ms. M. ended the social relationship. 2 She testified that afterward she "felt worse than when I had started [the relationship], because ... the anxiety was just more than I could control, and I was under a lot of stress." About a year later, she sought psychological counseling.

Defense

Dr. Gromis's medical assistants, who customarily enter the patient's symptoms and complaints onto the patient's chart in preparation for the doctor's examination, testified that Ms. M. did not complain of emotional problems. Dr. Gromis testified that Ms. M. did not mention emotional problems during her office visits. Nor did she ever ask for a referral to a psychiatrist or psychologist. If she had asked, he would have referred her.

[8 Cal.App.4th 594] Dr. Gromis testified that when Ms. M. visited him at his house, he told her it would be best for her to find another primary care doctor. Although he would treat friends or family for minor problems, he did not want the responsibility of treating a close friend in a crisis.

Several defense medical witnesses testified that Dr. Gromis is a well qualified, competent physician. They also testified that it is appropriate for physicians to become friends with their patients, and they were unaware of any blanket prohibition against dating or sexual activity with a patient.

Rebuttal

Two expert witnesses testified that it is unethical and below the standard of medical care for a physician to engage in sexual relations with a patient. 3 In their view, the standard of care requires the physician to terminate the doctor-patient relationship before entering a social relationship. One of the experts based his opinion on his own interpretations of A.M.A. rules and section

726 of the Business and Professions Code. The other based his opinion on his experience and "vague impression of the law." He had not read section 726
DISCUSSION

The disciplinary proceedings were grounded on section 726 of the Business and Professions Code, which provides that "The commission of any act of sexual abuse, misconduct, or relations with a patient, client, or customer which is substantially related to the qualifications, functions, or duties of the occupation for which a license was issued constitutes unprofessional conduct and grounds for disciplinary action...."

As plaintiff points out, the statute does not bar all sexual relations with a patient--only activity which is "substantially related to the qualifications, functions, or duties of the occupation." 4 Indeed, constitutional considerations require that a statute "bar a person from practicing a lawful profession only for reasons related to his fitness or competence to practice that profession." (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, 139 Cal.Rptr. 620, 566 P.2d 254; accord, Arneson v. Fox (1980) 28 Cal.3d 440, 448, 170 Cal.Rptr. 778, 621 P.2d 817.) "Accordingly, standards for excluding persons from engaging in such commercial activities must bear some reasonable relation to their qualifications to engage in those activities." (Id., at p. 448, 170 Cal.Rptr. 778, 621 P.2d 817; see also Morrison v. State Board of Education (1969) 1 Cal.3d 214, 234-235, 82 Cal.Rptr. 175, 461 P.2d 375.) 5

An annotation in American Law Reports has compiled the cases involving disciplinary proceedings against physicians and dentists on account of sexual activity with a patient. (Annot. (1988) 59 A.L.R.4th 1104.) Of course, nonconsensual sexual advances or touching have been upheld as a ground for discipline. (Id., at pp. 1124-1130.) Consensual sexual activity, too, has been found a legitimate basis for discipline when the sexual activity occurred under guise of treatment, as part of a physical examination, during psychiatric treatment or in exchange for drugs.

In California, the case law is sparse. The cases have primarily involved psychotherapists who engaged in sexual...

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