Font Size: 
License Revocation Over Doctor's Affair With His Patient Is Upheld
New York Law Journal
October 27, 2009
A doctor's constitutional right to courtship and marriage was not violated by New York state regulators who, in revoking his license, faulted his consensual sexual relationship with a patient who later became his fiance, an appeals court has ruled.
Former Rochester physician Carmen A. D'Angelo had urged the court to abandon Matter of Miller v. Commissioner of Health for State of N.Y., 270 AD2d 584 (2000), in which it was held that the absence of a proscription in the law against any physical contact of a sexual nature between a physician and patient did not, ipso facto, constitute approval by the Legislature of such relationships involving medical professionals regulated by the Health Department.
The Appellate Division, 3rd Department, unanimously refused that invitation.
"Petitioner urges this Court to overrule this precedent, asserting that his constitutionally guaranteed liberty interest which protects his right to marriage encompasses a right to activities related to marriage and courtship, including -- astoundingly -- the right to engage in extramarital sexual relationships with his patients," Justice Edward O. Spain wrote for the five-member court in Matter of D'Angelo v. State Board for Professional Medical Conduct, 505410. "We are unpersuaded that our interpretation of the Legislature's intent, undisturbed now for over nine years, was in error."
Justice Spain said the panel was comfortable with precedents since Miller, including Matter of Barad v. State Bd. for Professional Med. Conduct, 282 AD2d 893 (2001), that have found that a physician's sexual relationships with patients "bears scrutiny for moral unfitness due to the potential for abuse of the confidential relationship between doctor and patient."
Justices Thomas E. Mercure, Bernard J. Malone Jr., E. Michael Kavanagh and William E. McCarthy joined in last week's ruling.
D'Angelo faced a series of misconduct allegations in the action that culminated in the revocation of his license in 2008.
Regulators charged him with providing care for several patients that the State Board for Professional Medical Conduct deemed to be substandard. In some instances, the board found the doctor had inappropriately urged patients to use alcohol or tobacco. D'Angelo also pre-signed prescription pads in violation of state procedures, the board found.
The disciplinary action charged D'Angelo with misconduct for entering into sexual relationships with two women when they were his patients.
In all, the board sustained 28 of 48 charges against D'Angelo. In making its ruling, it did not indicate whether the charges of providing substandard care to some patients would have been enough to warrant the revocation of his license in the absence of the sexual misconduct counts.
D'Angelo did not challenge the non-sexual charges against him in the 3rd Department case.
SEXUAL ENCOUNTERS
The complaint detailed a series of sexual encounters with the first woman in 2003, mostly at her apartment or at hotels in Rochester or the Finger Lakes region. One tryst occurred after-hours in an examination room in the doctor's office, according to the Board for Professional Medical Conduct.
According to the board, D'Angelo explained to the woman that he and his wife had an "open marriage" and he was only staying with his wife until his teen children became older.
D'Angelo had been treating the woman for depression and other psychological maladies, according to the panel's ruling, which referred to her as a "troubled, extremely vulnerable woman."
D'Angelo denied the affair. But the panel said it would defer to the conduct board's conclusion that enough evidence existed, including gifts from the former doctor to the patient and "explicit" e-mail exchanges between the two, to verify that a physical relationship occurred.
PATIENT'S TRUST VIOLATED
The relationship with the other woman, which D'Angelo acknowledges but defended in court as protected by the Constitution, began in 2005.
According to the board's complaint, D'Angelo had treated the woman since the early 1990s for multiple sclerosis and other conditions. She was identified as "Patient H" in the board's case against D'Angelo and in the panel's ruling.
According to a footnote in the decision, the woman sought out another primary physician after her physical relationship with D'Angelo began.
The judges concluded that license revocation was the "appropriate" penalty.
"Petitioner's sexual relationship with Patient H ... reflects a pattern of behavior evincing a failure to respect the trust and confidence placed in him by his patients and a blindness to the potential consequences of his conduct," Spain wrote.
The board moved to revoke D'Angelo's license on the grounds that he was morally unfit to practice medicine under Education Law §6530[20]. Psychiatrists are explicitly barred from having sexual contact with patients under Education Law §6530[44].
Henry Weintraub, counsel to the conduct board, said the 3rd Department ruling is consistent with the general concept at the board that patients are often vulnerable emotionally or physically and must not become involved in sexual relationships with medical professionals.
"The court here emphatically rejected his constitutional right to engage in extramarital sexual relationships with his patients," Weintraub said in an interview.
He added that some doctors have lost their licenses based solely on sexual misconduct charges without other allegations of professional mistreatment of patients.
The Board for Professional Medical Conduct oversees the ethical and professional behavior of physicians, physician assistants and specialist assistants.
Other medical professionals, including psychologists and nurses, are regulated by the state Education Department.
William L. Woods Jr. of Wood & Scher in White Plains represented D'Angelo.
