COURT OF APPEALS OF VIRGINIA PRIVATE

ROMINGER LEGAL

Virginia Legal Research & Resources - VA Legal Resources

Need Legal Help?

LEGAL RESEARCH CENTER

LEGAL HEADLINES - CASE LAW - LEGAL FORMS

NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Courts of Virginia. Search our site for more cases - CLICK HERE

COURT OF APPEALS OF VIRGINIA PRIVATE

Present: Judges Humphreys, Clements and Agee*
Argued at Richmond, Virginia

STEVEN M. GOAD, M.D.
OPINION BY
v. Record No. 0016-02-2 JUDGE JEAN HARRISON CLEMENTS
MAY 20, 2003
VIRGINIA BOARD OF MEDICINE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge

James J. Knicely (Thomas H. Roberts;
Knicely & Associates, P.C.; Thomas H. Roberts
& Associates, P.C., on briefs), for
appellant.

Evelyn R. Fleming, Special Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Francis S. Ferguson, Deputy Attorney General;
Jane D. Hickey, Senior Assistant Attorney
General and Chief, on brief), for appellee.

Steven M. Goad, M.D., appeals from an order of the circuit
court affirming an order of the Virginia Board of Medicine
(Board) finding him guilty of unprofessional conduct under
former Code 54.1-2914(A)(9) and 54.1-2914(A)(13) and imposing
sanctions under Code 54.1-2915(A)(3). On appeal, Goad
contends the circuit court erred in affirming the Board's order
because (1) the evidence presented by the Commonwealth was
insufficient to support the conclusion that Goad was guilty of
unprofessional conduct under former Code 54.1-2914(A)(9) and
54.1-2914(A)(13), (2) the Board erred in distributing irrelevant
and prejudicial materials to the Board members prior to the
formal hearing, and (3) the Board erred in its conduct of the
formal hearing by "relinquish[ing] control" of the hearing to
the Board's counsel and allowing its counsel to be present in
the Board's deliberations. Finding the record lacks substantial
evidence to support the Board's determination that Goad was
guilty of having engaged in unprofessional conduct under former
Code 54.1-2914(A)(9) and 54.1-2914(A)(13), we reverse the
judgment of the circuit court and remand the case.
I. BACKGROUND
The relevant facts in this case are undisputed. Following
his 1991 graduation from the University of Virginia School of
Medicine, Goad was accepted into a residency program in
psychiatry at Virginia Commonwealth University's Medical College
of Virginia. In February 1993, while sharing a call room at the
hospital with a third-year medical student, Goad, who was the
supervising resident in the psychiatry section of the hospital
at the time, asked the medical student if she wanted a backrub.
When the student declined, Goad apologized several times for
having asked her. The student informed her supervisor,
Dr. James Levenson, of the incident, but made it clear she did
not want to file a complaint or get Goad "into trouble." She
further indicated that, while the incident made her
uncomfortable, there was no coercion or sexual contact involved.
Goad had no input with respect to grading or evaluating the
medical student's work.
In response to that incident, Levenson and Dr. John Urbach,
the director of residency education at the Medical College of
Virginia, met with Goad. Goad admitted in that meeting that he
knew "almost immediately" after asking the medical student about
the backrub that he had "crossed a boundary with [the] student,"
for which he had "tried to apologize." Cautioning him that such
lack of respect for "professional boundaries" might harm his
professional reputation, Levenson and Urbach gave Goad a copy of
the Virginia Commonwealth University "Sexual Harassment
Guidelines" and encouraged him to pursue personal psychotherapy.
Goad was subsequently promoted by Urbach and his colleagues
to the position of chief resident. In April 1994, Goad was
issued a full and unrestricted license to practice medicine in
Virginia.
In June 1994, Urbach learned of another female medical
student who had complained about Goad's behavior. The student
reported that she and Goad, whom she had met at the "V.A.
hospital," initially discussed her concerns about trying to
decide whether to pursue a career in medicine or surgery. Their
ongoing discussions soon shifted to questions about religious
and spiritual matters. Goad, who did not supervise the student,
informed her that "he was not acting as her psychiatrist or
. . . therapist" but was willing to talk with her about her
concerns, in meetings he characterized as "spiritual
counseling." Goad and the student met several times in the
following weeks. At some point, however, the student "suddenly
became aware that [Goad] was sexually interested in her."
Feeling "vulnerable and upset" over Goad's "betrayal," the
student reported Goad's interaction with her to the associate
dean for students at the Medical College of Virginia. The
student did not allege any sexual involvement with Goad and did
not file a formal sexual harassment charge with the Medical
College of Virginia.
On July 14, 1994, after meeting with Urbach and Dr. Joel
Silverman, the department of psychiatry chairman, Goad was found
to have engaged in a "pattern of repeated inappropriate
overtures" and was formally suspended from the residency
program. It was noted, however, that "no inappropriate
behaviors or boundary violations toward patients had been
identified."
In August 1994, Goad agreed to participate in a
psychological evaluation. Following that evaluation, his status
in the residency program was upgraded to "probationary." The
terms of the probation required that Goad resign his position as
chief resident, attend regularly scheduled treatment sessions,
and submit to an additional psychological evaluation in the
future. Goad was also warned that "[a]ny further evidence of
inappropriate advances toward medical students or other medical
center/University personnel [would] be considered a violation of
probation and grounds for dismissal."
In the ensuing months, Goad's conduct was "closely
monitored." His "clinical performance," it was noted, "was
reportedly very good" at the time.
However, in April 1995, Silverman received information from
the director of Snowden Psychiatric Hospital regarding Goad's
"inappropriate behavior" toward a staff social worker at that
facility during his on-call weekend. The social worker, who was
employed part-time as the admissions counselor at the hospital,
reportedly stated that she experienced "considerable emotional
distress" when Goad came into her office to speak with her and,
during their conversation, "repeatedly made comments of a
sexually suggestive nature" while simultaneously acknowledging
he would never act on them because "they were both Christians."
The social worker also reported that she "felt embarrassed,
angry, and threatened" by Goad's comments and told the director
of the hospital that she did not want to be assigned to work
when Goad was scheduled to work at the facility. No sexual
involvement was alleged, and Goad did not supervise the social
worker. The social worker never saw or spoke to Goad again.
Meeting with Silverman and Urbach on May 4, 1995, Goad
admitted he had acted inappropriately toward the social worker
at the Snowden facility and that he was "sexually excited"
during his conversation with her. He added, however, that he
was unaware that his comments had made her feel uncomfortable.
He further indicated at a subsequent hearing that his
conversation with the social worker was a philosophical
discussion regarding Christianity and Freudian theory and that
his sexually suggestive remarks were merely an illustrative
example of the "conflict between maintaining fellowship with God
. . . and being governed by the desires of the flesh."
On May 18, 1995, having found Goad had violated his
probation and engaged in "an ongoing pattern of unprofessional
conduct," the department of psychiatry dismissed him from its
residency program. In accordance with procedures set forth by
the Medical College of Virginia, Goad appealed the dismissal.
On June 30, 1995, during a department of psychiatry
committee hearing convened to consider Goad's appeal, Goad
recounted an incident in February 1994 in which he and a female
medical student engaged in fondling, while fully unclothed, in a
call room during an on-call shift at the Medical College of
Virginia. No other evidence regarding this incident was
presented.
Goad's dismissal from the residency program was upheld at
each level of review by the Medical College of Virginia. On
February 27, 1996, following the final review by the dean of the
medical school, the department of psychiatry informed the Board
of Goad's dismissal from the Medical College of Virginia's
residency program.
On October 27, 2000, the Board sent Goad a letter informing
him that the Board would hold an informal conference to consider
whether, based on allegations that he had engaged in
unprofessional conduct under former Code 54.1-2914(A)(9) and
54.1-2914(A)(13), his license should be suspended or revoked
under Code 54.1-2915(A)(3). The letter alleged, in pertinent
part, as follows:
From approximately February 1993 to
June 1994, while a psychiatry resident at
the Medical College of Virginia, Richmond,
Virginia ("MCV"), you engaged in a recurrent
pattern of inappropriate behavior toward
female medical students which represented a
pattern of sexual harassment under MCV's
guidelines, as well as inappropriate use of
a supervisory role during clinical on-call
time.

The letter went on to describe Goad's allegedly inappropriate
interactions with, among others, the social worker and three
medical students discussed above.
On January 26, 2001, the Board held an informal conference.
Following that conference, the Board, citing the incidents
described in the October 27, 2000 letter of notification, found
that Goad had engaged in "inappropriate behavior toward female
medical students which represented a pattern of sexual
harassment under MCV's guidelines, as well as inappropriate use
of a supervisory role during clinical on-call time."
On March 5, 2001, Goad requested a formal administrative
hearing and the Board's order from the informal conference was
vacated. On May 4, 2001, the Board sent Goad a letter notifying
him that the Board would hold a formal administrative hearing to
consider the allegations in the statement of particulars
attached to the letter. The attached statement of particulars
stated, in pertinent part, as follows:
The Board alleges that [Goad] may have
violated [Code ] 54.1-2915(A)(3), as
further defined in [former Code
54.1-2914(A)(9) and 54.1-2914(A)(13)], in
that:

1. From approximately February 1993 to June
1994, while a psychiatry resident at the
Medical College of Virginia, Richmond,
Virginia ("MCV"), Dr. Goad engaged in
inappropriate behavior toward female medical
students which represented a pattern of
sexual harassment under MCV's guidelines, as
well as inappropriate use of a supervisory
role during clinical on-call time.

The statement of particulars went on to describe Goad's
allegedly inappropriate interactions with the social worker and
three medical students discussed above.
On June 7, 2001, the Board held a formal administrative
hearing to determine whether Goad should be sanctioned under
Code 54.1-2915(A)(3). As a preliminary matter, the Board
permitted the Commonwealth to introduce into evidence, over
Goad's objection, copies of Section 3.08 of the American Medical
Association's Code of Medical Ethics and Annotation 14 under
Section 4 of the American Psychiatric Association's Principles
of Medical Ethics with Annotations Especially Applicable to
Psychiatry. In response to Goad's claim that the mere admission
of the two documents did not constitute the establishment of a
standard of ethics that was binding on Virginia doctors, the
presiding member of the Board agreed, saying, "We're just
accepting them as exhibits." The assistant attorney general
representing the Commonwealth added, "The Commonwealth would
assert that the respondent is free to provide any other ethical
codes that he believes his conduct is in conformity with and
this is merely something for the Board to look to for ethical
guidelines and use as a comparison." Goad's attorney responded,
"Of course, . . . the burden is not upon Dr. Goad to provide
such. It's upon the state to show that he has violated the laws
of Virginia as set forth in the [Statement] of Particulars
against him."
At the formal administrative hearing, no witness called by
the Commonwealth testified about the American Medical
Association's Code of Medical Ethics or the American Psychiatric
Association's Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry or the two specific sections
of those respective sets of ethical guidelines introduced by the
Commonwealth. Nor did the Commonwealth present any other
evidence regarding those guidelines. Similarly, the
Commonwealth introduced no evidence regarding the standards set
forth in the Medical College of Virginia's "guidelines"
referenced in the statement of particulars or any other evidence
regarding the governing ethical standard referenced in former
Code 54.1-2914(A)(9).
When, later in the hearing, Goad's attorney attempted to
ask Urbach if the Medical College of Virginia disciplinary
committee that reviewed Goad's conduct was in compliance with
Section 9.05 of the American Medical Association's Code of
Medical Ethics, the presiding member of the Board disallowed
such questioning, ruling that Section 9.05 of the American
Medical Association's Code of Medical Ethics "is not a statute"
but "a recommendation." Goad then moved to have the previously
admitted excerpts from the American Medical Association's Code
of Medical Ethics and the American Psychiatric Association's
Principles of Medical Ethics with Annotations Especially
Applicable to Psychiatry stricken from the record "based on [the
Board's] ruling." The Board denied the request. Clarifying his
earlier ruling regarding Section 9.05 of the American Medical
Association's Code of Medical Ethics, the presiding Board member
added:
The ruling I'm making is the
composition of the committee and so forth is
a different issue from the medical ethics
and other recommendations by the [American
Medical Association] and it does not relate
to the fundamental ethics of medicine.

Upon conclusion of the Commonwealth's evidence, Goad moved
to strike the case, contending, among other things, that the
evidence presented by the Commonwealth was insufficient to find
him "guilty of professional misconduct as . . . charged in the
statement of particulars" because no ethical standard had been
established and there was no showing in the cited incidents of
any (1) sexual involvement, (2) supervisor-trainee relationship,
or (3) harm to the public. The Board, finding that "the
evidence demonstrated that Dr. Goad on at least four occasions
acted in violation of medical ethics, specifically Section
[4]-14 of the Principles of Medical Ethics [with Annotations
Especially Applicable to Psychiatry] regarding sexual
involvement with a student," denied Goad's motion to strike.
Goad subsequently attempted to introduce into evidence the
affidavits of two doctors, one purportedly an "expert in the
field of medical ethics" and the other "in the field of
medicine." Both doctors stated in their affidavits that the
American Medical Association's Code of Medical Ethics was not
binding on doctors practicing in Virginia. The assistant
attorney general representing the Commonwealth argued that the
affidavits were inadmissible because (1) one must "be voir dired
and qualify as an expert before the Board," (2) the legal
opinions of a doctor are irrelevant in the case, and (3)
the ethics presented in this case are not
the issue; Dr. Goad's behavior is the issue.
The ethics are merely guideline principles
that we're basing our action upon. The
Board is certainly free to use its own
standards and the respondent is free to
submit other ethical standards.

The Board refused to admit the affidavits "for the reasons
stated by" the assistant attorney general representing the
Commonwealth. Goad presented no further evidence.
Following deliberations, the Board found Goad guilty of
having engaged in unprofessional conduct in violation of Code
54.1-2915(A)(3), as further defined in former Code
54.1-2914(A)(9) and 54.1-2914(A)(13). In reaching that
decision, the Board recited as findings of fact the incidents
described in the statement of particulars and specifically found
that Goad had engaged in "inappropriate behavior toward female
medical students which represented a pattern of sexual
harassment under MCV's guidelines, as well as inappropriate use
of a supervisory role during clinical on-call time." The
Board's ruling made no mention of the American Medical
Association's Code of Medical Ethics or the American Psychiatric
Association's Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry.
Based on its findings, the Board ordered that Goad's
license to practice medicine and surgery in Virginia "be placed
on indefinite probation" until certain specified conditions were
met. The Board entered an order reflecting its findings of fact
and conclusions of law on June 11, 2001. Like the Board's
rulings at the hearing, that order lacked any reference to the
American Medical Association's Code of Medical Ethics or the
American Psychiatric Association's Principles of Medical Ethics
with Annotations Especially Applicable to Psychiatry.
Goad subsequently appealed the Board's decision to the
circuit court. Finding no error of law, the court affirmed the
Board's decision. This appeal followed.
II. ANALYSIS
On appeal, Goad contends the evidence presented by the
Commonwealth at the formal administrative hearing was
insufficient to support the Board's determination that he was
guilty of having engaged in unprofessional conduct under former
Code 54.1-2914(A)(9) and 54.1-2914(A)(13). Specifically, he
argues the evidence was insufficient to establish either an
ethical standard by which his conduct could be adjudicated under
former Code 54.1-2914(A)(9) or a violation of any ethical
standard under that statute. He further argues that the
evidence was insufficient to establish that he performed "any
act likely to deceive, defraud or harm the public" under former
Code 54.1-2914(A)(13).
Code 54.1-2915(A)(3) authorizes the Board to suspend or
revoke a doctor's license to practice medicine and surgery in
Virginia if that doctor engages in "[u]nprofessional conduct."
Hearings conducted by the Board to determine whether to revoke
or suspend a doctor's license under Code 54.1-2915(A)(3) are
subject to the provisions of the Virginia Administrative Process
Act. See Code 54.1-2920.
Accordingly, in reviewing a decision of the Board to
suspend or revoke a doctor's license pursuant to Code
54.1-2915(A)(3), we are limited "with respect to issues of
fact . . . to ascertaining whether there was substantial
evidence in the [Board] record upon which the [Board] as the
trier of the facts could reasonably find them to be as it did."
Code 2.2-4027; see also Virginia Real Estate Comm'n v. Bias,
226 Va. 264, 268-69, 308 S.E.2d 123, 125 (1983). In Bias, the
Supreme Court stated:
The "substantial evidence" standard,
adopted by the General Assembly, is designed
to give great stability and finality to the
fact-findings of an administrative agency.
The phrase "substantial evidence" refers to
"such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion." Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938) (emphasis
added). Under this standard, . . . the
court may reject the agency's findings of
fact "only if, considering the record as a
whole, a reasonable mind would necessarily
come to a different conclusion." B.
Mezines, Administrative Law 51.01 (1981)
(emphasis in original).

226 Va. at 269, 308 S.E.2d at 125. "[T]he substantial evidence
standard accords great deference to the findings of the
administrative agency, but even under this standard the evidence
must be relevant to the conclusion reached." Atkinson v.
Virginia Alcohol Beverage Control Comm'n, 1 Va. App. 172, 178,
336 S.E.2d 527, 531 (1985).
Additionally, in accordance with familiar principles of
appellate review, "we review the facts in the light most
favorable to sustaining the Board's action," id. at 176, 336
S.E.2d at 530, and "take due account of the presumption of
official regularity, the experience and specialized competence
of the agency, and the purposes of the basic law under which the
agency has acted," Code 2.2-4027.
In this case, Goad was charged with having engaged in
unprofessional conduct under former Code 54.1-2914(A)(9) and
54.1-2914(A)(13). Former Code 54.1-2914(A)(9) provides:
Any practitioner of the healing arts
regulated by the Board shall be considered
guilty of unprofessional conduct if he:

* * * * * * *

9. Conducts his practice in such a
manner contrary to the standards of ethics
of his branch of the healing arts[.]

In seeking to have the Board suspend or revoke Goad's
license, the Commonwealth had the burden to prove his guilt.
See former Code 9-6.14:12(C) (now Code 2.2-4020(C)). Hence,
for the Board to find Goad guilty of unprofessional conduct
under former Code 54.1-2914(A)(9), the Commonwealth had to
establish three things: first, the applicable "standards of
ethics of [Goad's] branch of the healing arts" by which his
conduct was to be adjudicated under the statute; second, the
specific ethical standard Goad was alleged to have violated;
and, third, Goad's violation of that standard.
To that end, the Commonwealth introduced into the record,
as exhibits, copies of Section 3.08 of the American Medical
Association's Code of Medical Ethics and Annotation 14 under
Section 4 of the American Psychiatric Association's Principles
of Medical Ethics with Annotations Especially Applicable to
Psychiatry. The Commonwealth concedes on appeal, however, that
the Board has promulgated no regulation establishing the
American Medical Association's Code of Medical Ethics, the
American Psychiatric Association's Principles of Medical Ethics
with Annotations Especially Applicable to Psychiatry, or any
other set of ethical standards as the applicable "standards of
ethics of [Goad's] branch of the healing arts" under former Code
54.1-2914(A)(9).
Moreover, the Commonwealth presented no evidence or
rationale at the hearing demonstrating that the standards it
introduced or any other standards were applicable to Goad in
this case. Indeed, to the contrary, upon introducing Section
3.08 of the American Medical Association's Code of Medical
Ethics and Annotation 14 under Section 4 of the American
Psychiatric Association's Principles of Medical Ethics with
Annotations Especially Applicable to Psychiatry, the assistant
attorney general representing the Commonwealth insisted that
Goad could introduce his own ethical standards and that the
ethical standards set forth in the Commonwealth's exhibits were
"merely something for the Board to look to for ethical
guidelines and use as a comparison." Later, the assistant
attorney general representing the Commonwealth stated:
[T]he ethics presented in this case are not
the issue; Dr. Goad's behavior is the issue.
The ethics are merely guideline principles
that we're basing our action upon. The
Board is certainly free to use its own
standards and the respondent is free to
submit other ethical standards.

For its part, the Board acknowledged, after admitting the
two ethical standards presented by the Commonwealth into
evidence, that the admission of those exhibits alone was
insufficient to establish a standard of ethics by which Goad's
conduct could be judged. The Board later appeared to rule, in
prohibiting Goad's cross-examination of a witness on a section
of the American Medical Association's Code of Medical Ethics
unrelated to the instant prosecution, that the American Medical
Association's Code of Medical Ethics was merely "a
recommendation" and, thus, not binding in the case.
Furthermore, in finding Goad guilty of having engaged in
unprofessional conduct under former Code 54.1-2914(A)(9), the
Board made a number of findings of fact regarding Goad's conduct
but drew no connection between that conduct and Section 3.08 of
the American Medical Association's Code of Medical Ethics or
Annotation 14 under Section 4 of the American Psychiatric
Association's Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry. Indeed, the Board's only
reference in its order to any possible standards of ethics
appears in its finding that Goad engaged in "inappropriate
behavior toward female medical students which represented a
pattern of sexual harassment under [the Medical College of
Virginia's] guidelines." Those guidelines, however, are not
included in the record. Nor is there anything in the record
that describes those standards or even remotely suggests they
constitute a "standard of ethics of [Goad's] branch of the
healing arts," as required by former Code 54.1-2914(A)(9).
Because no evidence was presented establishing the
"standards of ethics of [Goad's] branch of the healing arts" by
which his conduct was to be adjudicated under former Code
54.1-2914(A)(9), we find there is not substantial evidence in
the record upon which the Board could reasonably find that Goad
"conducted his practice in a manner contrary to the standards of
ethics of his branch of the healing arts," in violation of
former Code 54.1-2914(A)(9).
The Board also found Goad engaged in unprofessional conduct
under former Code 54.1-2914(A)(13). Former Code
54.1-2914(A)(13) provides:
Any practitioner of the healing arts
regulated by the Board shall be considered
guilty of unprofessional conduct if he:

* * * * * * *

13. Performs any act likely to
deceive, defraud or harm the public[.]

There is no evidence in the record that demonstrates,
absent reliance on speculation and pure conjecture, that Goad
performed any act likely to deceive, defraud, or harm the
public. Indeed, nothing in the record shows that Goad's
interactions with the social worker and three medical students
interfered with or was likely to interfere with his ability to
provide care to his patients. Likewise, the record is devoid of
evidence showing that Goad's conduct interfered with or was
likely to interfere with the ability of the social worker and
medical students to perform their duties at work or school or
otherwise prevent them from providing suitable care to patients
and other members of the public with whom they dealt. Nor,
contrary to the Commonwealth's assertions, did the Board make
any such findings. We find, therefore, that there is not
substantial evidence in the record upon which the Board could
reasonably find that Goad "[p]erform[ed] any act likely to
deceive, defraud or harm the public," in violation of former
Code 54.1-2914(A)(13).
In conclusion, having found there was not substantial
evidence in the record to support the Board's findings that Goad
was guilty of having engaged in unprofessional conduct under
former Code 54.1-2914(A)(9) and 54.1-2914(A)(13), we reverse

the circuit court's judgment affirming the Board's imposition of
sanctions against Goad under Code 54.1-2915(A)(3).
Accordingly, we remand this case to the circuit court with
instructions to set aside the Board's June 11, 2001 order
placing Goad's license to practice medicine and surgery in
Virginia "on indefinite probation" and to remand the matter to
the Board for such further proceedings as may be requisite,
consistent with this opinion.
Reversed and remanded.
* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
For clarity's sake, we use the term "Board" when referring
in this opinion to the Virginia Board of Medicine acting in this
case in its adjudicative capacity and the term "Commonwealth"
when referring to the Virginia Board of Medicine acting in its
prosecutorial capacity.

Code 54.1-2914 having been amended, former Code
54.1-2914(A)(9) is now Code 54.1-2914(A)(7) and former Code
54.1-2914(A)(13) is now Code 54.1-2914(A)(11).

Goad also contends on appeal that the Board's notice of
hearing and statement of particulars did not give him sufficient
notice of the charges against him. However, having failed to
raise that issue before the Board, he is precluded from raising
it on appeal. See Pence Holdings, Inc. v. Auto Center, Inc., 19
Va. App. 703, 707, 454 S.E.2d 732, 734 (1995) (holding that an
appellant may not raise an issue on appeal from a decision of an
administrative agency that he did not raise before the agency);
Rule 5A:18.

In view of this holding, we do not address the remaining
assignments of error.
As conceded by the Commonwealth at oral argument, neither
these nor any other ethical guidelines associated with the
Medical College of Virginia were ever introduced into the
record.
While the Board's prosecution of Goad more than four and a
half years after receiving notification from the Medical College
of Virginia of Goad's alleged unprofessional conduct is not
precluded by the doctrine of laches or any statute of
limitations, we find the Board's protracted delay in instituting
such proceedings troubling.

Section 3.08 of the American Medical Association's Code of
Medical Ethics provides:

Sexual harassment may be defined as
sexual advances, requests for sexual favors,
and other verbal or physical conduct of a
sexual nature when (1) such conduct
interferes with an individual's work or
academic performance or creates an
intimidating, hostile, or offensive work or
academic environment or (2) accepting or
rejecting such conduct affects or may be
perceived to affect employment decisions or
academic evaluations concerning the
individual. Sexual harassment is unethical.
Sexual relationships between medical
supervisors and their medical trainees raise
concerns because of inherent inequalities in
the status and power that medical
supervisors wield in relation to medical
trainees and may adversely affect patient
care. Sexual relationships between a
medical trainee and a supervisor even when
consensual are not acceptable regardless of
the degree of supervision in any given
situation. The supervisory role should be
eliminated if the parties involved wish to
pursue their relationship.

Annotation 14 under Section 4 of the American Psychiatric
Association's Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry provides:

14. Sexual involvement between a
faculty member or supervisor and a trainee
or student, in those situations in which an
abuse of power can occur, often takes
advantage of inequalities in the working
relationship and may be unethical because
(a) any treatment of a patient being
supervised may be deleteriously affected;
(b) it may damage the trust relationship
between teacher and student; and (c)
teachers are important professional role
models for their trainees and affect their
trainees' professional behavior.
Section 9.05 of the American Medical Association's Code of
Medical Ethics provides, in substantial part:

The basic principles of a fair and
objective hearing should always be accorded
to the physician or medical student whose
professional conduct is being reviewed. The
fundamental aspects of a fair hearing are a
listing of specific charges, adequate notice
of the right of a hearing, the opportunity
to be present and to rebut the evidence, and
the opportunity to present a defense. These
principles apply when the hearing body is a
medical society tribunal, medical staff
committee, or other similar body composed of
peers. The composition of committees
sitting in judgment of medical students,
residents, or fellows should include a
significant number of persons at a similar
level of training.
These principles of fair play apply in
all disciplinary hearings and in any other
type of hearing in which the reputation,
professional status, or livelihood of the
physician or medical student may be
negatively impacted.
As neither party raised before the Board or on appeal the
question of what burden of proof should be applied in this case,
that issue is not before us. Because the statutes at issue here
are silent regarding the applicable standard of proof, we
assume, without deciding, for purposes of this appeal that the
evidentiary burden of proof to be applied is a preponderance of
the evidence.

The Commonwealth contends in its appellate brief as
follows:

[T]he Board reasonably concluded that
Goad's behaviors were harmful to the medical
students and his co-worker at the
psychiatric hospital. Further, the Board
determined that the behaviors could have
resulted in harm to patients due to the
disruption of the work routine because the
individuals were unwilling to work with Goad
following his inappropriate behavior.
Additionally, the Board appropriately found
the behaviors occurring in a call room while
Goad was on-call for emergency room services
could have been harmful to patients who
would have had to wait for Goad to refocus
his attention from his sexual arousal to his
medical work and resume the concentration
necessary to provide safe patient care.

Nothing in the record, however, shows that the Board ever
reached or made such "conclusions," "determinations," or
"findings." Hence, we find the Commonwealth's inclusion in its
brief of the foregoing representations troubling.

- 2 -

	ROMINGER LEGAL
		Virginia Legal Research & Resources - VA Legal Resources
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE