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Haley v. Medical Disciplinary Board11/7/1991
r sexual relationship.
Inasmuch as Dr. Haley does not contest that he was in a "position of psychological power and authority over [M.]", I believe the Board's conclusion of law is determinative that she was within the status of a "patient" as defined by RCW 18.130.180(24)<!--/REF--> during that time of her and Dr. Haley's sexual contact.
The flaw in the majority opinion is that it reads the word "current" into RCW 18.130.180(24). That word is not contained in the statute, and the Board's unchallenged finding of fact gives a satisfactory point of demarcation from which to determine if the patient/physician relationship has ceased. If a patient is still under the psychological power and authority of the physician, it should be improper for that physician to enter into a sexual relationship with her. Such an interpretation would be consistent with the evil the statute is designed to prevent: that of physicians exploiting their power and status in the patient/physician relationship to engage in sexual contact.
Had the unappealed from finding indicated that Dr. Haley was not in a position of psychological power and authority over M., I might agree that the legal status of patient could end after surgery and a brief follow-up. Those are not the facts of this case. The Board's challenged conclusion of law is supported by the unappealed finding of fact and should be affirmed.
It is ironic that even Dr. Haley's own witnesses could not agree on the date the patient/physician relationship terminated. One witness opined that the relationship ended December 1, 1986. Report of Proceedings vol. II, at 88, ll. 13-19. Another testified that, in his opinion, the physician/patient
relationship ended June 10, 1986. Report of Proceedings vol. II, at 178, ll. 7-21. Another concluded the patient/physician relationship ended 90 days after surgery, August 24, 1986. Report of Proceedings vol. III, at 9, ll. 19-23. The reason for the ambivalence on the part of Dr. Haley's witnesses is that the rapport established in the surgical relationship continued after the break in treatment. Witnesses in the case acknowledge that termination of the patient/physician relationship might be viewed differently from the patient's point of view than from the physician's point of view. Report of Proceedings vol. II, at 204, ll. 8-13; Report of Proceedings vol. III, at 45, ll. 15-24.
Dr. Haley stipulated to the Board's findings of fact, but challenged the Board's conclusions of law. In this situation, review of the administrative decision occurs under the "error of law standard" of former RCW 34.04.130(6)(d). Public Hosp. Dist. 1, Garfield Cy. v. Department of Social & Health Servs., 42 Wash. App. 298, 300, 712 P.2d 298 (1985). Compare, e.g., St. Francis Extended Health Care v. Department of Social & Health Servs., 115 Wash. 2d 690, 801 P.2d 212 (1990) (where administrative law judge's findings of fact were not disputed, review occurs under the "error of law" standard) with Macey v. Department of Empl. Sec., 110 Wash. 2d 308, 752 P.2d 372 (1988) (where appellant assigned error to a finding of fact and a conclusion of law, review under the "error of law" and "clearly erroneous" standards was proper). Because our past holdings indicate that Dr. Haley's failure to assign error to the Board's findings of fact precludes judicial review under the "clearly erroneous" standard of former RCW 34.04.130(6)(e), we must review the Board's interpretation of RCW 18.130.180(24)<!--/REF--
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