Shea v. Board of Medical Examiners

• Decision Date: 19 May 1978
• Citation: 81 Cal.App.3d 564,146 Cal.Rptr. 653
• Parties: Vincent B. SHEA, M.D., Petitioner and Appellant, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Respondent. Civ. 15466.
• Court: California Court of Appeals Court of Appeals

Page 653

146 Cal.Rptr. 653

81 Cal.App.3d 564

Vincent B. SHEA, M.D., Petitioner and Appellant, v. The BOARD OF MEDICAL EXAMINERS of the State of California, Respondent.

Civ. 15466.

Court of Appeal, Third District, California.

May 19, 1978.

Rehearing Denied June 14, 1978.

Hansen & Hansen, Paso Robles, for petitioner and appellant.

Evelle J. Younger, Atty. Gen. by Daniel J. Weston, Deputy Atty. Gen., for respondent.

JANES, Associate Justice.

Petitioner, Vincent B. Shea, M.D., appeals from a judgment denying his petition for a writ of mandate directed to respondent Board of Medical Examiners. ^* On September 29, 1972, an accusation charging unprofessional conduct as defined in Business and Professions Code section 2361 and subdivisions (d) and (e) thereof ¹ was filed against Dr. Shea. It was alleged that Dr. Shea had attempted to hypnotize four patients on separate occasions and while believing them to be under hypnosis, and without solicitation, described to them in lurid and salacious detail sexual foreplay and the act of sexual intercourse. Such conduct was alleged to be an improper course of treatment for the maladies of those patients.

The matter was heard on July 17 and 18, 1973, before a hearing officer for the Office of Administrative Hearings. Dr. Shea appeared in person and by counsel. The hearing officer made findings of fact, and filed a proposed decision recommending six months' suspension, with stay of the suspension for a three-year probationary period. The Board agreed with the proposed decision, except as to the penalty recommended, and on January 13, 1975 issued its own decision finding Dr. Shea guilty of unprofessional conduct within the meaning of section 2361, and found in Dr. Shea's favor on the charged violations of subdivisions (d) and (e). Dr. Shea's Physician's and Surgeon's Certificate was revoked upon condition that he be allowed to resume medical practice after submitting to a psychiatric examination for determination of his emotional ability to practice medicine. Upon resumption of his practice he was to be on probation for 5 years under terms usual and customary in such proceedings.

Dissatisfied with the Board's decision, Dr. Shea filed this mandate proceeding (Code Civ.Proc., § 1094.5) in superior court. The Board filed its return, the matter was heard, and the superior court, expressly exercising its independent judgment, made findings of fact and concluded that Dr. Shea was guilty of unprofessional conduct as charged "in that he undertook to administer treatment without first obtaining an adequate history of the patients concerned, and without adequate explanation of the mode of treatment in advance to the patients, nor was the treatment proper for the malady complained of specifically." The court approved the penalty imposed by the Board, judgment was entered accordingly, and this appeal followed. We stayed enforcement of the order revoking Dr. Shea's Physician's and Surgeon's Certificate pending resolution of the appeal and further order of this court.

Dr. Shea raises numerous contentions and questions on appeal. In essence, he contends that the statute (§ 2361) is vague and indefinite; that he was not accorded proper notice; that his "conduct" is protected by the First Amendment; that there is insufficient evidence to support the Board's decision; that the penalty imposed is excessive; and that he is entitled to a dismissal of the proceeding because the Board did not timely file its decision.

FACTUAL BACKGROUND

Dr. Shea was licensed to practice as a Doctor of Osteopathy in 1950. In 1962, following the merger of osteopathy and allopathy, he was issued a Physician's and Surgeon's Certificate. He took a course in hypnosis in 1970 and read many books on the subject. He also studied the subject of sexual and marital inadequacies and in the late 1950's and early 1960's began to advise people in sexology.

On February 15, 1972, 55-year old Florence Fryer and her 81-year old husband, Harry, visited Dr. Shea's office, Florence suffering from pain in her hip, Harry from a strained back. She had been Dr. Shea's patient for approximately 9 years, Harry 3 to 4 years. Florence was taken to a treatment room where she donned a hospital gown. Heat pads were applied to her hip and Dr. Shea massaged her. He began a conversation, telling her to relax, but did not tell her why she was to relax. She assumed he was going to attempt hypnosis in order to help her quit smoking. Instead, he proceeded graphically to describe in explicit language the acts involved in sexual intercourse. ² During the monologue, Dr. Shea rubbed her back in a "very caressing motion" quite unlike the manner in which he had first massaged her hip.

Florence had not, on that day or at any other time asked for a sexual consultation, nor had she ever told Dr. Shea of sexual problems. No explanation for the sexual language was given by the doctor. She found the experience "shocking" and was in a "highly emotional state" after leaving the office; it took her a week or two to get over the incident.

Harry was treated after Florence. After attending to Harry's back, Dr. Shea, to Harry's surprise, began talking about sex. ³ Like his wife, Harry had made no complaints about his sex life and was not prepared for Dr. Shea's remarks. Although he was angry about the matter, he said nothing to Dr. Shea.

The Fryers' experience triggered an investigation of Dr. Shea. At the request of Ira Sims, an investigator for the Board, special agents Sandra Bending and Elaine Bonini each visited Dr. Shea as a patient.

Bending visited Dr. Shea five times, preparing a written report after each visit. Upon her first visit, April 6, 1972, she told the doctor that her nerves were bad and that she had a pain across her shoulders. He massaged her back, hips, and buttocks, and he asked whether she and her man massaged each other. She told him she was divorced. Dr. Shea talked about how he and his wife learned to be unashamed of their bodies and sex and how they massaged each other. He then suggested that hypnosis might help Bending's nerves and that he could do the treatment.

On her second visit Dr. Shea told Bending that he was going to hypnotize her. After assuring her that she was under hypnosis, he told her to relax, and proceeded with a sexual monologue, again in explicit, lurid detail unnecessary to repeat here even in summary. He concluded with the admonition that when she opened her eyes she would not remember what he had told her, but would want to return to him for further treatments.

On the third visit Dr. Shea again, after purporting to induce a hypnotic state in Bending, talked to her of sexual foreplay and of sexual intercourse in graphic and non-medical terms, concluding with essentially the same admonition used previously.

Dr. Shea's conversation during her fourth visit again after an unsuccessful attempt to induce hypnosis related to a hypothetical vacation trip taken by Bending to a place in the mountains where she and a lover went to a room, took off all their clothes, napped, awoke, and made love. Again he went into an explicit description of the sexual foreplay and sexual intercourse which would take place. Although she was unsure whether her notes reflected the instruction not to remember the details of the conversation, she recalled that she was so advised.

Bending's final visit with the doctor was similar in all respects to her previous sessions, the only distinction being the specific content of the monologue, not its nature or quality. On each of her visits Bending pretended to be under hypnosis, but remained unhypnotized; she was not, in any instance, told that the subject of sex would be broached while she was supposedly under hypnosis.

Elaine Bonini visited Dr. Shea on June 5, 1972. She told him she had a nervous condition and he suggested that hypnosis was sometimes helpful. She at no time mentioned sexual problems or requested any treatment for problems of that nature. On her visit of June 28th she was specifically asked by Dr. Shea whether she had sex problems; she replied "No." Nevertheless, the doctor commenced discussion of a woman patient with such problems who had benefited from his treatment. After learning that Bonini had a 15-year old daughter, Dr. Shea verbally speculated on her daughter's sexual activities, despite the fact that Bonini had not herself raised the subject. Following this one-sided conversation, Dr. Shea "hypnotized" Bonini and delivered a sexually oriented and explicit monologue dealing with a vacation trip she might take with her husband. ⁴ At one point in this "treatment" he told Bonini that she had beautiful breasts and that "he would sure like to play with them, but that was (her) husband's job." She was fully clothed at the time.

Bonini, like the Fryers and Bending, was never actually under hypnosis, nor was she ever informed that Dr. Shea planned to talk about sexually related matters while he believed her to be hypnotized.

Dr. James Hollingsworth, senior psychiatrist at the California Men's Colony in San Luis Obispo, testified that in his opinion Dr. Shea's conduct with the Fryers, Sandra Bending and Elaine Bonini was "unprofessional," based upon Dr. Shea's failure to obtain an adequate history before subjecting the four patients to hypnosis and sex-related treatments, and the lack of a relationship between the treatment and the particular medical complaints involved. He believed the harm engendered by Dr. Shea's conduct was "in the patient-physician relationship . . . the patients are being made quite dependent on (the doctor) with this the way the statements were made to them, and it is violating trust."

Dr. Shea admitted conversations with the Fryers concerning sex, but insisted his remarks were in response to Mr. Fryer's request for help and that he obtained Mrs. Fryer's consent beforehand. He conceded that Sandra Bending's version of his conversations with her was...