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Haley v. Medical Disciplinary Board11/7/1991
ew of the Board's decisions is limited by the Administrative Procedure Act, RCW 34.05; or, if the hearing was begun before July 1, 1989, as was the case here, by the former act, RCW 34.04. RCW 34.05.902. In reviewing an administrative agency's conclusions of law, we apply the "error of law" standard of former RCW 34.04.130(6)(d). Under this standard, we accord substantial weight to the agency's interpretation of the law, although we may substitute our judgment for that of the agency. St. Francis Extended Health Care v. Department of Social & Health Servs., 115 Wash. 2d 690, 695, 801 P.2d 212 (1990). An agency's findings of fact are reviewed under the "clearly erroneous" standard of former RCW 34.04.130(6)(e). Franklin Cy. Sheriff's Office v. Sellers, 97 Wash. 2d 317, 324, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983). Uncontested findings of fact are deemed verities on appeal. St. Francis Extended Health Care, at 692.
II
Patient Relationship
The Board concluded that Dr. Haley's sexual contact with M. "occurred under such proximity to her relationship with him as her physician and surgeon that his sexual conduct with her constitutes a violation of RCW 18.130.180(24) as sexual contact with a patient." Because the facts do not establish that M. was Dr. Haley's patient during the time of their sexual contact, we disagree with the Board's application of RCW 18.130.180(24).
The statute defines unprofessional conduct to include "sexual contact with a client or patient". This language
prohibits a physician from having sexual contact with a current patient. It does not prohibit a physician from having sexual contact with a former patient. In the present case, the facts do not support the conclusion that M. was Dr. Haley's patient during the time of their sexual contact.
Dr. Haley performed an emergency splenectomy on M. at the end of May 1986. His medical relationship with her was limited to performing that surgery and then providing postoperative care; there is no indication of any improprieties during this period. The Board stated that the contact between Dr. Haley and M. "during the course of treatment and follow-up was professional and there is no evidence of any attempt to improperly influence [M.]". Furthermore, although exactly when the doctor-patient relationship between Dr. Haley and M. ended is unclear, it concluded before their sexual relationship began. Various experts testified regarding this point, one saying the doctor-patient relationship ceased on June 10, 1986 (the last postoperative visit after the splenectomy), another saying August 22, 1986 (90 days after the splenectomy), and a third saying December 1, 1986 (when M. saw Dr. Haley about her scar). Although these experts disagreed as to the exact date, however, all of them agreed that the medical relationship ended no later than December 1, 1986, and there are no facts that suggest otherwise. Yet the sexual relationship was not initiated until M. visited Dr. Haley at his office in March 1987. In short, there were no improprieties during the course of Dr. Haley's treatment or follow-up care for M., and the facts indicate that M. was not Dr. Haley's patient during the time of the sexual relationship. Therefore, there is no basis for saying that Dr. Haley had sexual contact with a patient, in violation of RCW 18.130.180(24).
We recognize that the sexual relationship occurred in close proximity to the doctor-patient relationship. But proximity is n
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