Pons v. Ohio State Med. Bd. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Pons, Appellee, v. Ohio State Medical Board, Appellant.
[Cite as Pons v. Ohio State Med. Bd. (1993), Ohio
St.3d .]
Physicians -- State Medical Board -- Disciplinary proceeding --
When reviewing medical board's order, courts must accord
due deference to board's interpretation of technical and
ethical requirements of its profession.
When reviewing a medical board's order, courts must accord due
deference to the board's interpretation of the technical
and ethical requirements of its profession.
(No. 92-115 -- Submitted March 16, 1993 -- Decided July 7,
1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-746.
In 1970, appellee, Pablo A. Pons, M.D., became licensed to
practice medicine in Ohio. Since then, he has specialized in
obstetrics and gynecology. On November 9, 1989, appellant,
Ohio State Medical Board ("board"), notified Dr. Pons that it
proposed to take disciplinary action against him for violations
of R.C. 4731.22(B)(6) (a departure from, or failure to conform,
to minimal standards of care) and former R.C. 4731.22(B)(15)
and its successor former R.C. 4731.22(B)(14)1 (violations of
medical ethics) in his treatment of a woman referred to as
"Patient 1."
On January 30, 1990, a hearing was held before a hearing
officer with regard to the board's allegations. The testimony
and exhibits received at this proceeding and as noted in the
findings of fact, revealed that Dr. Pons was the treating
physician of Patient 1 from around 1973 to March 26, 1984.
Sometime in 1976, Dr. Pons began a sexual and emotional
relationship with her. This relationship lasted until 1983.
Dr. Pons first saw Patient 1 in 1973, when he had been
called as a consult by her family physician to perform a
therapeutic abortion for her. In large part, the medical
indication for the abortion was Patient 1's severe anxiety,
anxiety which arose from the birth of a previous child with
Down's Syndrome. Dr. Pons was aware of this previous history
of psychiatric problems, including Patient 1's treatment and

subsequent hospitalization for these problems.
Prior to the beginning of their sexual relationship, Dr.
Pons continued to treat Patient 1 for periods of depression and
anxiety. At one point, in 1975, Dr. Pons counseled Patient 1
and her husband regarding their marital difficulties.
From 1974 to March 1984, Dr. Pons served as Patient 1's
exclusive physician. He treated her for all her gynecological
problems. He also provided non-gynecological medical care,
such as treatment for back pain (severe enough to warrant
hospitalization), and the removal of a mole or cyst from
Patient 1's shoulder because Patient 1 refused to see other
physicians.
When Patient 1 became pregnant with his child in 1983, Dr.
Pons ended his sexual relationship with her, yet continued to
professionally treat her throughout the pregnancy, serving as
her attending obstetrician at the birth. Dr. Pons terminated
his professional relationship with Patient 1 in March 1984. At
this time, Patient 1 was exhibiting severe depression and Dr.
Pons recommended psychiatric treatment.
Expert medical testimony was also provided. The expert
witness, Dr. George P. Leicht, opined that Dr. Pons' overall
care departed from the minimum standards of care of similar
practitioners under the same or similar circumstances because
the sexual relationship placed Dr. Pons in a very compromising
position in which, as an objective individual, he would have
difficulty in rendering appropriate guidance and care.
In addition, Dr. Leicht believed Dr. Pons violated several
provisions of the American Medical Association Principles of
Medical Ethics for his failure to deal objectively and honestly
with the patient and exhibiting a lack of respect for her
dignity. Also, Dr. Pons failed to adhere to ethical principles
when he neglected to seek a consultation regarding Patient 1's
apparent psychiatric problems.
After hearing this evidence, the hearing examiner
concluded that Dr. Pons had violated R.C. 4731.22(B)(6), (14)
and (15). He filed his report and recommendations to that
effect. After considerable discussion, the board approved and
confirmed the findings of fact and conclusions of law, yet
adopted an amended order. The board's order revoked Dr. Pons'
certificate to practice medicine and surgery, stayed the
revocation, and indefinitely suspended his certificate for not
less than one year, subject to conditions.2
Pursuant to R.C. 119.12, Dr. Pons filed an administrative
appeal to the Franklin County Common Pleas Court. The common
pleas court affirmed, finding that the board's order was
supported by reliable, probative and substantial evidence, and
was in accordance with law. Upon further appeal, the court of
appeals vacated the judgment of the common pleas court and
remanded the cause to the board with instructions that the
finding as to violations of R.C. 4731.22(B) be reversed and the
disciplinary action dismissed.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Porter, Wright, Morris & Arthur, William M. Todd and
Terri-Lynne B. Smiles, for appellee.
Lee I. Fisher, Attorney General, Susan C. Walker and Diane

M. Weaver, Assistant Attorneys General, for appellant.
Katrina Miller English, urging reversal for amicus curiae,
Ohio State Medical Association.
David Orentlicher, urging reversal for amicus curiae,
American Medical Association.
David Goldberger and Robin Thomas, urging reversal for
amici curiae, Ohio National Organization for Women, Citizen
Action, Committee Against Sexual Harassment, Ohio Coalition on
Sexual Assault, Project Woman, Senator Linda Furney, and
Representative Raymond Miller.

Francis E. Sweeney, Sr., J. In an appeal from a medical
board's order, a reviewing trial court is bound to uphold the
order if it is supported by reliable, probative, and
substantial evidence, and is in accordance with law. R.C.
119.12; In re Williams (1991), 60 Ohio St.3d 85, 86, 573 N.E.2d
638, 639. The appellate court's review is even more limited
than that of the trial court. While it is incumbent on the
trial court to examine the evidence, this is not a function of
the appellate court. The appellate court is to determine only
if the trial court has abused its discretion, i.e., being not
merely an error of judgment, but perversity of will, passion,
prejudice, partiality, or moral delinquency. Absent an abuse
of discretion on the part of the trial court, a court of
appeals may not substitute its judgment for those of the
medical board or a trial court. Instead, the appellate court
must affirm the trial court's judgment. Lorain City School
Dist. Bd. of Edn. v. State Emp. Relations Bd. (1988), 40 Ohio
St.3d 257, 260-261, 533 N.E.2d 264, 266. See, also, Rossford
Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn.
(1992), 63 Ohio St.3d 705, 707, 590 N.E.2d 1240, 1241.
Moreover, when reviewing a medical board's order, courts
must accord due deference to the board's interpretation of the
technical and ethical requirements of its profession. The
policy reason for this was noted in Arlen v. State (1980), 61
Ohio St.2d 168, 173, 15 O.O.3d 190, 194, 399 N.E.2d 1251,
1254-1255: "'* * * The purpose of the General Assembly in
providing for administrative hearings in particular fields was
to facilitate such matters by placing the decision on facts
with boards or commissions composed of [people] equipped with
the necessary knowledge and experience pertaining to a
particular field. * * *'" (Quoting Farrand v. State Med. Bd.
[1949], 151 Ohio St. 222, 224, 39 O.O. 41, 42, 85 N.E.2d 113,
114.)
Thus, the narrow issue before us today is to determine
whether the appellate court correctly determined that the trial
court abused its discretion in affirming the board's decision.
For the following reasons, we hold that it did not.
Accordingly, we reverse its decision.
I
The board concluded that the acts, conduct, and/or
omissions of Dr. Pons fell below the minimum standards of care
in violation of R.C. 4731.22(B)(6): "A departure from, or the
failure to conform to, minimal standards of care of similar
practitioners under the same or similar circumstances, whether
or not actual injury to a patient is established." The board
never alleged that Dr. Pons' surgical skills were remiss or

that he lacked basic medical knowledge. However, the board
felt that the care a doctor renders to a patient includes more
than just procedures performed or medications prescribed. The
overall care consists of the entire treatment relationship
between the physician and patient.
In finding that Dr. Pons' overall care of Patient 1 was
deficient, the board specifically found that Dr. Pons exhibited
extremely poor medical judgment by entering into an emotional
and sexual relationship with Patient 1 when he had reason to
believe she was in a vulnerable, unstable, emotional state.
The basis of this belief was that the sexual relationship began
after Dr. Pons had received over one year's worth of complaints
from Patient 1 of depression, anxiety, and marital discord.
Additionally, he knew of her previous psychiatric
hospitalization, he had prescribed anti-depressants for her,
and he had counseled Patient 1 and her husband for their
marital difficulties. Dr. Pons knew, or should have known,
that Patient 1 placed a great deal of trust in him, and that by
entering into an emotional relationship with her this was
likely to be detrimental to Patient 1's already unstable
condition. In doing so, Dr. Pons was not acting in Patient 1's
best interest.
Also, the board determined that Dr. Pons failed to
maintain the level of objectivity that minimal standards of
care dictate by advising Patient 1 on various forms of birth
control while engaging in a sexual relationship with her, thus
serving his own personal desire that she not become pregnant
with his child. In addition, he lacked objectivity when he
failed to insist she see specialists for her back pain and
psychiatric care or counseling for her marital problems.
Indeed, the board felt Dr. Pons took personal advantage of the
fact that Patient 1 and her husband were having marital
difficulties, an intimate fact learned through the professional
relationship.
A medical disciplinary proceeding is a special statutory
proceeding conducted by twelve persons, eight of whom are
licensed physicians. R.C. 4731.01. Thus, a majority of the
board members possess the specialized knowledge needed to
determine the acceptable standard of general medical practice.
In re Williams, supra, at 87, 573 N.E.2d at 640. Hence, the
medical board is quite capable of interpreting technical
requirements of the medical field and quite capable of
determining when conduct falls below the minimum standard of
care. Arlen, supra, at 173, 15 O.O.3d at 194, 399 N.E.2d at
1254.
Dr. Pons' testimony, Patient 1's medical records, and the
expert witness' testimony support the board's finding that Dr.
Pons failed to conform to minimal standards of care. The
common pleas court, finding reliable, probative, and
substantial evidence existed in the record, properly upheld the
board's order. The appellate court incorrectly found an abuse
of discretion and improperly substituted its judgment for those
of the board and the trial court on this finding.
II
The board also found Dr. Pons' behavior violated R.C.
4731.22(B)(14) and (15). R.C. 4731.22(B)(14) and (15)
authorize the board to discipline physicians for violations of

ethical standards adopted by national professional
organizations such as those promulgated by the American Medical
Association ("AMA").
The specific provisions Dr. Pons was charged with
violating include Sections 1, 4, 6, and 8 of the AMA Principles
of Medical Ethics in effect until July 1980, and Sections I,
II, and IV of the AMA Principles of Medical Ethics in effect
after July 1980. These provisions require a physician to
provide competent medical service with compassion and respect
for human dignity, deal honestly and objectively with a
patient, uphold the dignity and honor of the medical
profession, seek consultation where appropriate, and safeguard
the public against physicians deficient in moral character.
The board concluded that Dr. Pons' conduct was neither
honorable nor ethical. The board believed that the necessity
of physician objectivity underlies all the enumerated
provisions. Where there is a lack of objectivity there can be
no assurance that the doctor is acting in the patient's best
interest.
In addition, Dr. Pons' conduct was deceitful because he
used information acquired through the relationship to his own
personal advantage. The board felt it was implausible that Dr.
Pons recommended marriage counseling after beginning his sexual
relationship with Patient 1.
The board also believed Dr. Pons was obligated to obtain a
consultation with a mental health specialist or insist that
Patient 1 accept a referral for these problems.
The board also determined Dr. Pons failed to uphold the
dignity and honor of his profession by maintaining this dual
relationship and exploiting Patient 1's trust.
We find the board was well within its statutory authority
and had the discretion to weigh the evidence and make the
decision that Dr. Pons violated the medical profession's Code
of Ethics and would be sanctioned pursuant to R.C.
4731.22(B)(14) and (15). Cf. Leon v. Ohio Bd. of Psychology
(1992), 63 Ohio St.3d 683, 687, 590 N.E.2d 1223, 1226: "It
takes no citation of authority to safely state that sexual
relations between any professional and a client * * * are
universally prohibited by the ethical regulations of
practically every profession."
In view of the foregoing, we uphold the order of the
medical board. Accordingly, the judgment of the court of
appeals is reversed.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright and Resnick,
JJ.,concur.
Pfeifer, J., dissents.

FOOTNOTES:
1. Pursuant to amendments to R.C. Chapter 4731, the section
numbers of this provision have changed at least four times
since its enactment in 1967.
2. The hearing officer recommended an indefinite suspension
for not less than two years.
Pfeifer, J., dissenting. I dissent from the majority's
decision. The court of appeals correctly found that the trial
court abused its discretion in affirming the Ohio State Medical

Board's decision to suspend Dr. Pons for one year.
We grant the medical board the power to discipline doctors
in this state, trusting the board more than the courts to be
able to determine what constitutes acceptable medical
practice. While we have granted the board great discretion,
there is a limit to what it can do. We do not require Ohio's
doctors to give up all their due process rights in order to
practice medicine in Ohio. Orders of the board must be
supported by reliable, probative and substantial evidence, and
must be in accordance with the law.
In this case, the board went beyond its statutory
constraints. Dr. Pons had engaged in a consensual sexual
relationship with a patient, and the board found that to be
objectionable. Since there is no prohibition of such activity
in the Ohio Revised Code, the board was forced to become
creative in order to effectively vent its moral outrage. It
did so with all the subtlety of the proverbial
eight-hundred-pound gorilla that it has become.
The board forced square pegs into round holes, first
claiming that Dr. Pons failed to conform to "minimal standards
of care of similar practitioners under the same or similar
circumstances." As it did in so much of the case against Dr.
Pons, the board relied not on facts but on inferences stacked
on top of inferences. There was no testimony from Patient 1.
There was no testimony from any patient who received any
substandard care from Dr. Pons. All of the medical care Dr.
Pons administered to Patient 1 was appropriate and met
applicable medical standards, and the board did not contend
otherwise. Dr. Pons testified that his medical judgment was
not clouded by his personal involvement with Patient 1.
However, the board conclusorily determined that Dr. Pons'
relationship with Patient 1 "clouded Dr. Pons' judgment and
caused him to lose his objectivity." However, there was
nothing in the record or in the history of Dr. Pons' treatment
of Patient 1 which indicated that he actually did use poor
medical judgment. The board's determination raises the
question as to how any doctor could ever treat a family member
or friend without violating R.C. 4731.22(B)(6).
Dr. Pons also supposedly fell below the minimal standards
of care by having a "sexual relationship with a married patient
who he had reason to believe was suffering from psychiatric,
psychological, or emotional problems." Patient 1 was not
"Sybil," as the board would like to portray her. There was
some evidence that she occasionally was depressed and suffered
some anxiety during the course of their affair. There was no
evidence presented that any such problems were serious enough
to merit treatment. What is more interesting is the board's
inclusion of the word "married" in the description of what Dr.
Pons did wrong. Why is it relevant that the patient with whom
Dr. Pons had his relationship was married? Is the board saying
that if Patient 1 had not been married that Dr. Pons' behavior
would have been acceptable? If the board is going to start
suspending adulterous doctors, this nation is going to have a
bigger health care problem than we thought.
The board also found that Dr. Pons' behavior violated R.C.
4731.22(B)(14) and (15) by breaching the AMA's ethical
principles. However, those principles, at the time relevant

herein, did not prohibit consensual sexual relationships
between doctors and their patients. Not until 1991, long after
the board heard this case, did the AMA's Council on Ethical and
Judicial Affairs announce for the first time in an article
entitled "Sexual Misconduct in the Practice of Medicine" (Nov.
20, 1991), 266 J.A.M.A. 2741, 2745, that sexual contact or a
romantic relationship concurrent with the physician-patient
relationship is unethical.
Since there was no prohibition of such activity, the board
again had to twist the law and the facts to suit its decision,
claiming that Pons was deceitful and exhibited a lack of
objectivity, and a lack of dignity in his care of Patient 1.
The majority opinion backs up the board by citing troubling
dicta from Leon v. Ohio Bd. of Psychology (1992), 63 Ohio St.3d
683, 687, 590 N.E.2d 1223, 1226: "It takes no citation of
authority to safely state that sexual relations between any
professional and a client * * * are universally prohibited by
the ethical regulations of practically every profession."
It very well ought to require a citation of authority to
strip a person of his ability to practice his profession. In
Leon, there was a specific Ohio Administrative Code section
prohibiting sexual contact between a psychologist and a
client. Thus, in Leon there was authority for the discipline
given. Here, there was not, and all of the machinations of the
board cannot change that.
I find the board's action to be unlawful and to be based
on no evidence. The trial court therefore abused its
discretion in upholding the board. I would thus affirm the
court of appeals.