Managing Misconduct
By Tom Kisken
Ventura County Star
January 6, 2008
http://www.venturacountystar.com/news/2008/jan/06/managing-misconduct/
He called her "sweet pea," held her hand and warned her about moving too fast with her fiancee. What began as flirtation morphed into an affair that was twice consummated.
Even before the relationship dissolved into angry phone calls, a lawsuit, a criminal complaint, therapy and wounds that changed lives, there was a problem.
He was her doctor.
Stuart Fischbein, a well-regarded Camarillo physician who co-wrote a book on fearless pregnancies, was convicted June 13, 2006, in Los Angeles Superior Court of a misdemeanor offense of sexually exploiting a patient. That would have likely meant the end of his practice if he were a psychologist, a social worker or a respiratory therapist.
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| Dr. Ralph Napolitano checks patient Young Soo Yoo, as translator Eunice Hong, left, waits at Luke Medical Center in Los Angeles' Koreatown. Napolitano's license was placed on probation in 2005 after the Camarillo family practice doctor had a relationship with a patient described by investigators as consensual. Photo by Jason Redmond |
But Fischbein is an obstetrician-gynecologist. And while the state's Board of Psychology and the Board of Behavioral Sciences have automatic revocation guidelines for the license of any therapist who has sex with a patient, the Medical Board of California does not.
The regulatory agency has gained a reputation for aggressively pursuing sexual misconduct, but its 15 state-appointed members also wrestle with controversial concepts like consent, rehabilitation and second chances.
They gave Fischbein seven years' probation in a ruling that became effective in October. He continues his practice in Century City and at The Woman's Place, a birth and midwifery center he started in Camarillo 11 years ago. A chaperone is present for examinations of women. In two years, he can ask for his license to be released from probation.
Fischbein won't talk. His lawyer, Peter Osinoff, said the doctor made the mistake of falling in love with a patient. He said the probation has scared away at least one healthcare insurance plan, affected hospital staff privileges and could jeopardize an entire practice.
Others want more.
'Mortal sin'
"The Medical Board should revoke that guy's license," said Julie D'Angelo Fellmeth, a University of San Diego law professor who wrote a state-mandated assessment of the board's enforcement program and considers sex with a patient an ultimate abuse of power. "It's a crime. It's unlawful. It's unethical. Sexual misconduct is the mortal sin for any healthcare practitioner. You just don't do that."
Built to protect people from doctors who make surgical mistakes, prescribe the wrong drugs and commit other violations, the Medical Board investigated 803 complaints of sexual misconduct over the past six years, taking action in 123 cases. The complaints range from leers to affairs and from molestation to assault.
Dr. Shamim Amini of Moorpark was arrested in July for suspicion of committing sexual battery on two women he examined at Simi Valley Hospital's emergency room. The district attorney is still considering whether to press criminal charges. The Medical Board has accused Amini of negligence and sexual misconduct and has restricted him from treating women until the case is resolved.
Over the past six years, 78 doctors lost or surrendered their licenses for sexual misconduct, with the board likely to terminate a doctor's practice for any violation that includes a forced act or more than one victim. The other 45 doctors disciplined kept their right to practice, most of them placed on long probations. Seven were given only public reprimands.
"We don't allow peace officers who engage in domestic violence to carry a gun," said former Medical Board member Rudy Bermudez, who later served four years in the state Assembly, advocating tougher laws against sexually abusive doctors. "The same should be said for a physician who commits a sexual act with a patient. They shouldn't get a second bite at the apple."
Now a Sacramento parole officer, Bermudez argues that any doctor convicted criminally of sexual misconduct should lose his or her license without a court hearing and without any chance of practicing again.
Sex with a patient is a twisting of authority on the same level as abuse at the hands of a priest or a teacher, said Steve Altchuler, a psychiatrist at the Mayo Clinic in Rochester, Minn., and a U.S. authority on patient-doctor relationships.
"The impact is absolutely devastating," he said. "The patient feels they've been taken advantage of by someone they've trusted. Sexual violations go to the very core of who we are."
Sending doctors a message
Doctors and lawyers contend the Medical Board is overtly aware of sexual impropriety and pursues cases with an urgency meant to send doctors a message. They say the current minimum guideline for discipline — seven years' probation — can turn a doctor who made an isolated mistake into a pariah unable to find insurance companies willing to refer patients or a hospital that will offer staff privileges.
Dr. Ralph Napolitano's license was placed on probation in 2005 after the Camarillo family practice doctor had a relationship with a patient described by investigators as consensual. It culminated with a clothes-on sexual act in his Chevy Metro.
Restricted from operating his own practice, Napolitano worked for two years as an airport shuttle driver making $400 a week. He finally found a job as a doctor with a medical group that sees elderly patients in Los Angeles' Koreatown community.
"I was probably turned down between 50 and 100 times," Napolitano said, noting he was even rejected by registries that find temporary positions for doctors. "They'll take almost anybody that is not on probation for a sexual situation."
A former substance abuser who has been clean for more than seven years, Napolitano wants to become an addiction specialist.
Those accused of misconduct are not the only people who believe the Medical Board responds to sexual complaints faster than other kinds of allegations. Tina Minasian of Sacramento leads a group of patients alleging they were injured by a plastic surgeon who was an alcoholic.
"Our complaints were filed two years ago, and our doctor is still operating," she said, noting sexual misconduct complaints often bring interim suspension orders that halt a practice during an investigation. "That supersedes death. That supersedes medical error. One hundred thousand people die every year from medical mistakes, and doctors are not suspended quickly enough."
A matter of consent
Dr. Richard Fantozzi, a San Diego surgeon, was appointed to the Medical Board six years ago and now serves as its president. He describes sex with a patient as one of the worst acts a doctor can commit, characterizing board policy as "zero tolerance."
But Fantozzi also argues against the proposal of revoking the license of any doctor convicted in criminal court of sexual contact, saying isolated, consensual incidents have to be considered differently.
"At some point it could impede access of care," he said. "We don't want to take good doctors out of service."
Repeat offenders or doctors who sexually exploit more than one victim do face automatic revocation because of a 2003 state law. But the board's guidelines allow for probation for doctors who haven't been previously charged or face accusations involving one patient.
Boards that regulate psychologists and therapists take away licenses for sexual misconduct to protect patients who are especially vulnerable. But the Medical Board deals with a huge spectrum of patients and doctors, said spokeswoman Candis Cohen.
Board members have considered automatic revocation but have decided they need to look at every case separately, she said. The argument doesn't wash with Bermudez. He wonders why it's less of an offense for a psychiatrist, a gynecologist or any other medical doctor to violate a patient than it is for a family therapist.
"They should be treated equally," he said. "Because a person doesn't have a medical illness, it doesn't make it more egregious."
The difficulty of sorting out mitigating circumstances from manipulation is at the core of Fischbein's story.
He's a 51-year-old doctor who divorced his wife, then tried to reconcile but failed.
His patient, identified in Medical Board records as S.K., was 14 years younger than he and earning her doctorate degree in psychology. She came to Fischbein's office in Century City with her fiancee. They wanted to have a baby.
From the start, the doctor-patient conversations were as much about life as about medicine. He performed surgery at St. John's Pleasant Valley Hospital in Camarillo to remove a mass in her uterus and called her "sweet pea" in the recovery room. He sat at her bedside for long intimate talks, testifying in a hearing he viewed her as not just a patient, but as a woman.
"The doctor is human. The doctor fell in love with his patient," Osinoff said.
S.K. said Fischbein told her he would be a better father than her fiancee. He persuaded her to leave him.
They talked about the ethics of doctor-patient relationships. She said he told her he dated "bushels" of patients. Fischbein denied the comment or any other relationship with a patient.
She said he advised her not to have sex for four to six weeks after surgery. Fischbein said in court he didn't remember the discussion.
Five days after she was released from the hospital and eight days after surgery, he called and asked to visit her at her home in Los Angeles. They had sex then and again two days later at Fischbein's home.
He testified it was consensual. She said she viewed him as a doctor who had performed a surgery that was going to enable her to have a baby. He had become a hero who seemed almost "godlike." And he was interested in her.
"I would have done anything he would have told me to do," said the woman, who is suing Fischbein. "I look back with my hindsight and with my mind today and say, How could I have done this?'"
Consent is a linchpin in doctor-patient sex cases. Defense lawyers say it should and often does save a doctor's license.
"There are sex with patient cases and there are sex with patient cases," Osinoff said. "There's a difference with a doctor getting involved in patients like Dr. Fischbein did and a doctor who is a sexual predator."
But Altchuler, the Mayo Clinic psychiatrist, said the doctor often controls every aspect of a relationship, including whether or not a patient says yes or no.
"There is a huge amount of power imbalance," he said. "You cede authority you wouldn't do in other settings. The last time a doctor told you to take off your clothes and put the gown on, did you even think about it?"
S.K. reconciled with her boyfriend and they married. He found out about the relationship with Fischbein by intercepting a text message from the doctor. He's also the one who went to the Medical Board, where investigators suggested contacting the police as well.
Paying the price
In Los Angeles Superior Court, Fischbein pleaded no contest to a misdemeanor charge of sexual exploitation. A judge sentenced him to three years' probation and community service that includes picking up trash in Hollywood and volunteering at a retirement home in Woodland Hills.
An administrative law judge recommended the Medical Board place Fischbein's license on five years' probation. Board members opted for seven years.
The probation means higher malpractice payments and patients reconsidering their decision to have Fischbein as their doctor. It's intended more to punish and send out a message to other doctors than to protect the public, Osinoff said.
"If you think for an instant that Dr. Fischbein is going to get involved with another patient it's absolutely unthinkable," he said, noting the doctor has been through far too much to consider repeating the mistake.
Bermudez has little sympathy. He said he thinks the Medical Board should consider the possibility of mitigating circumstance in cases where a complaint against a doctor falls below criminal standards. But when a doctor is convicted, arguments about consent, therapy and second chances don't work.
"I believe there are certain crimes that are so egregious that they demand the harshest penalty," Bermudez said. "They should automatically be revoked and they should lose their ability to practice for life."
Actions by Medical Board of California
2006-07
Total complaints: 130
Total cases: 23
Revocation and surrender (of medical license): 11
Probation with suspension: 4
Probation: 7
Public reprimand: 1
2005-06
Total complaints: 152
Total cases: 26
Revocation and surrender: 17
Probation with suspension: 2
Probation: 5
Pubic reprimand: 2
2004-03
Total complaints: 147
Total cases: 11
Revocation and surrender: 10
Probation: 1
2003-04
Total complaints: 114
Total cases: 20
Revocation and surrender: 11
Probation with suspension: 4
Probation: 4
Public reprimand: 1
2002-03
Total complaints: 126
Total cases: 20
Revocation and surrender: 12
Probation with suspension: 2
Probation: 5
Public reprimand: 1
2001-02
Total complaints: 134
Total cases: 23
Revocation and surrender: 17
Probation with suspension: 3
Public reprimand: 2
Other action: 1
Total complaints: 803
Total cases: 123
Revocation and surrender: 78
Probation: 22 Probation with suspension: 15
Public reprimand: 7
Other action: 1
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