Salvi v. Medical Examining Bd.

• Decision Date: 01 September 2011
• Docket Number: Appeal No. 2010AP1462,Cir. Ct. No. 2009CV5099,Appeal No. 2010AP1071
• Parties: FRANK J. SALVI, PETITIONER-RESPONDENT, v. MEDICAL EXAMINING BOARD, RESPONDENT-APPELLANT.
• Court: Wisconsin Court of Appeals

FRANK J. SALVI, PETITIONER-RESPONDENT,

v.MEDICAL EXAMINING BOARD, RESPONDENT-APPELLANT.

Appeal No. 2010AP1071

Appeal No. 2010AP1462

Cir. Ct. No. 2009CV5099

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

Dated: September 1, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from a judgment and an order of the circuit court for Dane County: JOHN W. MARKSON, Judge. Reversed.

Before Lundsten, P.J., Higginbotham and Sherman, JJ.

¶1 LUNDSTEN, P.J. This appeal involves the Medical Examining Board's decision to sanction Dr. Frank Salvi for the improper sexual touching of four female patients. The circuit court reversed the Board's decision and awarded attorneys' fees and costs to Dr. Salvi. The Board appeals.

¶2 The issues are as follows: (1) whether the Board relied on an incorrect legal test in determining that Dr. Salvi had "sexual contact" with the four women; (2) whether the Board's finding that Dr. Salvi touched intimate body parts of the four women with a sexual purpose is supported by substantial evidence; and (3) whether the Board improperly excluded evidence. We resolve each of these issues in favor of the Board, affirm its decision, and reverse the circuit court.

Background

¶3 In 2004 and 2005, four female patients complained that Dr. Frank Salvi, a physician and pain specialist employed by the University of Wisconsin Medical School and the University of Wisconsin Hospital and Clinics, touched them on intimate body parts during examinations under circumstances indicating that his purpose was sexual.

¶4 The complaints led to a proceeding before the UW Hospital's Corrective Action Peer Review Committee. The Committee conducted an investigation and made findings in 2006. The Committee found that, although Dr. Salvi had engaged in some "unacceptable" non-medical touching of the patients' legs that must "cease" and that he "failed to give adequate warning to the patients about what he was going to do and failed to explain the reasons for the touching," all of the non-leg touching the women complained about was medically "justified" and "was not intended for purposes other than the assessment of the patient." As further discussed below, the Peer Review Committee, in essence, accepted Dr. Salvi's version of the events and concluded that the women misinterpreted Dr. Salvi's actions because of his failure to adequately explain what he was doing.

¶5 In July 2007, the Division of Enforcement of the Department of Regulation and Licensing (DOE) brought an action against Dr. Salvi, including charges that he sexually touched the four patients in violation of WIS. ADMIN. CODE § Med 10.02(2)(z) and (zd), which prohibits "[v]iolating ... any law ... the circumstances of which substantially relate to the circumstances of the practice of medicine" and "[e]ngaging in inappropriate sexual contact, exposure, gratification, or other sexual behavior with or in the presence of a patient."

¶6 Following extensive discovery, an evidentiary hearing was held in 2008. The hearing spanned four days and is recorded in over 800 pages of transcript. Following the hearing, the DOE attorney argued that the evidence showed that Dr. Salvi violated various administrative code provisions, including the prohibition on violating "any law" by committing fourth-degree sexual assault as defined in WIS. STAT. § 940.225(3m) (2003-04).¹

¶7 On June 1, 2009, eleven months after receiving the final post-hearing brief, the administrative law judge issued a proposed decision. Dr. Salvi filed objections to the proposed decision, and the DOE attorney responded. On September 16, 2009, two months after the DOE's response was filed, the Board adopted, without change, the findings and analysis in the proposed decision. The Board did, however, decline to adopt the administrative law judge's recommendation that Dr. Salvi's medical license be revoked. Instead, the Board suspended Dr. Salvi's license and imposed limitations.

¶8 Although the Board's decision lacks clarity in several respects, it is clear that the Board primarily based its disciplinary decision on a finding that Dr. Salvi touched intimate body parts of the four women with a sexual purpose, thereby engaging in prohibited "sexual contact."

¶9 On October 8, 2009, Dr. Salvi filed a petition for judicial review in the circuit court. On December 18, 2009, the circuit court stayed the imposition of discipline and costs imposed on Dr. Salvi. On March 16, 2010, the circuit court delivered an oral ruling reversing the Board's decision. The circuit court concluded, among other things, that the Board applied an incorrect legal test when finding that Dr. Salvi had "sexual contact" with the women, that the Board erroneously excluded evidence, and that the Board's findings were not supported by substantial evidence. A written decision incorporating the court's oral ruling was issued March 25, 2010.

¶10 On May 14, 2010, the circuit court ruled orally that the Board was liable for attorneys' fees and costs under WIS. STAT. § 814.245(3). The court determined that Dr. Salvi was, in the words of the statute, a "prevailing party" and that the Board was not "substantially justified in taking its position." The court awarded $153,476 in attorneys' fees and $20,161 in costs.

¶11 The Board appeals.

Discussion

¶12 Dr. Salvi challenges the decision of a state agency, the Medical Examining Board. The parties agree that the scope of our review is the same as the circuit court's and that we review the decision of the agency, not that of the circuit court. See Zip Sort, Inc. v. DOR, 2001 WI App 185, ¶11, 247 Wis. 2d 295,634 N.W.2d 99. Accordingly, although Dr. Salvi is the respondent on appeal, it remains his task to persuade us that the Board erred, and we frame our discussion in terms of Dr. Salvi's challenges to the Board's decision.

¶13 Dr. Salvi argues that the Board's decision must be reversed for three reasons: (1) the Board relied on an incorrect legal test in determining that Dr. Salvi had "sexual contact" with the four women; (2) the Board's finding that Dr. Salvi touched intimate body parts of the four women with a sexual purpose is not supported by substantial evidence; and (3) the Board improperly excluded evidence, namely, findings made by a peer review committee and an expert's opinion that patients, like those here, who suffer from fibromyalgia and chronic pain are more likely than other patients to misinterpret a doctor's touch. We address and reject each argument.

I. Whether The Board Relied On An Incorrect Definition of "Sexual Contact"

¶14 DOE alleged that Dr. Salvi touched an intimate body part of each female patient for a sexual, rather than medical, purpose. A central issue for the Board to resolve was whether Dr. Salvi had "sexual contact" with the women as that term is used in the criminal sexual assault statute. "Sexual contact" includes "[i]ntentional touching by the ... defendant ... of the complainant's ... intimate parts" "for the purpose of ... sexually arousing or gratifying the defendant." WIS. STAT. § 940.225(5)(b)1. (2003-04). The term "intimate parts" includes "the breast, ... anus, groin, ... vagina or pubic mound of a human being." WIS. STAT. § 939.22(19).

¶15 We agree with Dr. Salvi that, in keeping with the above statutory definition, in determining whether he had "sexual contact" with the four patients, the applicable test was whether he touched intimate parts of his patients "for thepurpose of ... sexually arousing or gratifying" himself. Dr. Salvi complains that the Board failed to apply this test and instead used a "you know it when you see it" test that depended on the subjective beliefs of the female patients. We disagree.

¶16 We first observe that Dr. Salvi does not support his argument with an analysis of the Board's decision. Instead, Dr. Salvi points to arguments made by the DOE attorney. For example, Dr. Salvi quotes the following exchange before the administrative law judge:

[Salvi's attorney]: What is sexual contact, just so we know what the definition is?

[DOE attorney]: It's just like the Supreme Court said about pornography. You know it when you see it. You know it when you feel it.

Similarly, Dr. Salvi points to an exchange between the circuit court and the DOE attorney:

THE COURT: ... I saw the Board decision. They certainly cite the criminal statute. Is there some different definition of sexual contact that the Board uses? And if so, what is it?

[DOE attorney]: I don't believe that there is anything codified. I don't think that there's any prior decisions that specifically set out what sexual contact is. I believe they have gone by the "you know it when you see it" kind of definition.

We agree with Dr. Salvi that it would be error for the Board to apply a test that does not include a definition of what constitutes "sexual contact." If the DOE attorney meant to assert that the Board could simply apply a "you know it whenyou see it" test, she was plainly wrong.² But the question is not whether the DOE attorney advocated for an incorrect test. Rather, the question is whether the Board applied an incorrect test. We conclude that it did not.

¶17 We have reviewed the approximately 50 pages of transcript— containing often confusing questions, answers, and arguments—leading up to the DOE attorney's "you know it when you see it" statement. In these pages, at least three topics are intermingled—the admissibility of the Peer Review Committee findings, whether DOE must prove "sexual contact" as defined in the criminal statutes, and whether touching a non-intimate body part (a leg) fits the definition of "sexual contact." Dr. Salvi's attorney argued, persuasively, that DOE must supply proof that...