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Expert Psychiatric Evidence in Sexual Misconduct Cases Before State Medical Boards

Published online by Cambridge University Press:  24 February 2021

Andrew L. Hyams
Andrew L. Hyams*
Affiliation:
Amherst College, 1976; Harvard Law School, 1980; Harvard School of Public Health, 1991
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Abstract

The growing problem of physician sexual misconduct has captured the attention not only of the medical and legal communities, but of the public as well. State medical boards, administrative agencies with generous rules of evidence and varying levels of expertise, face the difficult task of responding to patients’ allegations of physician sexual abuse. This Article, based in large part on the author's survey of current state medical board practice, reveals an increasing reliance on expert psychiatric testimony to explain the behavior of complainants and accused physicians. Drawing analogies from the use of psychiatric evidence in child sexual abuse cases, the author examines the factors that boards must consider in determining the admissibility of expert testimony in physician sexual misconduct cases, and calls upon states to establish clear evidentiary rules to govern the use of such testimony in administrative hearings.

Type
Articles
Information
American Journal of Law & Medicine , Volume 18 , Issue 3 , 1992 , pp. 171 - 201
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1992

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References

1 See, e.g., Neil A. Lewis, Law Professor Accuses Thomas of Sexual Harassment in 1980s, N.Y. TIMES, Oct. 7, 1991, at A1.

2 See, e.g., Robert L.Jackson, Thomas Rated “Qualified” for Court by ABA, L.A. TIMES, Aug. 28, 1991, at A1 (discussing ABA's approval of Thomas as “qualified” for the Supreme Court, the same rating given before his appointment to the U.S. Court of Appeals for the D.C. Circuit in 1989); Richard Lacayo, A Question of Character: Clarence Thomas and Anita Hill Were Both Known for Truthfulness and Integrity — Until Now; A Reputation for Integrity, TIME, Oct. 21, 1991, at 43.

3 Andrew Rosenthal et al., Use of Psychiatry in Thomas Hearing Raises Ethics Questions, N.Y. TIMES, Oct. 20, 1991, § 1, at 23.

4 See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986); Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991); Draper, Jane M., Annotation, State Civil Rights Legislation Prohibiting Sex Discrimination in Housing, 81 A.L.R.4TH 205 § 3 (1990)Google Scholar; Sara L. Johnston, Annotation, When Is Work Environment Intimidating, Hostile, or Offensive, So as to Constitute Sexual Harassment in Violation of Title VII of Civil Rights Act of 1964, as Amended (42 U.S.C.S. § 2000e et seq.), 78 A.L.R. FED. 252 (1986 & Supp. 1992); Nadel, Andrea G., Annotation, On-the-job Sexual Harassment as Violation of State Civil Rights Law, 18 A.L.R.4TH 328 (1982 & Supp. 1992).Google Scholar

5 While the focus of this Article is on state medical boards, it draws on cases emanating from other professional boards where relevant.

6 LUDWIG EDELSTEIN, THE HIPPOCRATIC OATH: TEXT, TRANSLATION AND INTERPRETATION 3 (1943).

Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct. Sexual or romantic interactions between physicians and patients detract from the goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure the physician's objective judgment concerning the patient's health care, and ultimately may be detrimental to the patient's wellbeing… .

COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS, AMERICAN MEDICAL ASS'N, 1992 CODE OF MEDICAL ETHICS: CURRENT OPINIONS § 8.14 [hereinafter CURRENT OPINIONS]; see also Council on Ethical and Judicial Affairs, American Medical Ass'n, Sexual Misconduct in the Practice of Medicine, 266 JAMA 2741 (1991)CrossRefGoogle Scholar [hereinafter Sexual Misconduct] (deeming unethical sexual or romantic relationships between physicians and patients).

8 See FEDERATION OF STATE MEDICAL BOARDS OF THE UNITED STATES, A GUIDE TO THE ESSENTIALS OF A MODERN MEDICAL PRACTICE ACT 15 (5th ed. 1988) (listing “commission of any act of sexual abuse, misconduct, or exploitation related to the licensee's practice of medicine” among grounds for disciplinary action); see also Randolph P. Reaves, A Closer Look: Managing the Disciplinary Action for Sexual Conduct, L. OF PROF. LICENSING & CERTIFICATION Q., Vol. 2, No. 1 (undated), at 3 (“There are few cases that come before disciplinary panels that result in harsher penalties … .”). For a collection of relevant cases, see Flaherty, Michael R., Annotation, Improper or Immoral Sexually Related Conduct Toward Patient as Ground for Disciplinary Action Against Physician, Dentist, or Other Licensed Healer, 59 A.L.R.4TH 1104 (1991).Google Scholar

9 James E.T. Lange & Harold L. Hirsch, Legal Problems of Intimate Therapy, MEDICAL TRIAL TECH. Q., 1982 Annual, at 201, 207.

10 Herman, Judith L. et al., Psychiatrist-Patient Sexual Contact: Results of a National Survey, II: Psychiatrists’ Attitudes, 144 AM. J. PSYCHIATRY 164, 165 (1987).Google Scholar

11 Id. Compare CAL. CIV. CODE § 43.93 (West Supp. 1992) (creating a cause of action against a psychotherapist for sexual contact, if the sexual act occurred within two years following termination of therapy) with proposed Massachusetts legislation, 1990 Mass. H.B. 5712 (creating a cause of action for sexual contact that takes place within one year of the last consultation with a mental health professional). This bill did not become law in Massachusetts. See Borruso, Michael T., Note, Sexual Abuse by Psychotherapists: The Call for a Uniform Criminal Statute, 17 AM. J.L. & MED. 289, 290 (1991)Google Scholar; see also 1992 Mass. H.B. 2789 (relating to criminal penalties for sexual misconduct by mental health professionals and health professionals); 1992 Mass. H.B. 2847 (relating to civil actions for sexual misconduct by mental health professionals and health professionals); 1992 Mass. H.B. 3004 (relating to the reporting of sexual misconduct by mental health professionals and health professionals).

12 Gutheil, Thomas G., Borderline Personality Disorder, Boundary Violations, and Patient-Therapist Sex: Medicolegal Pitfalls, 146 AM. J . PSYCHIATRY 597, 600 (1989).Google Scholar

At a minimum, a physician's ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient… . Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician-patient relationship. Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions or influence derived from the previous professional relationship.

CURRENT OPINIONS, supra note 7, § 8.14; see Sexual Misconduct, supra note 7, at 2743; Gary R. Schoener, Sexual Involvement of Therapists with Clients After Therapy Ends: Some Observations, in GARY R. SCHOENER ET AL., PSYCHOTHERAPISTS’ SEXUAL INVOLVEMENT WITH CLIENTS: INTERVENTION AND PREVENTION 265, 265 (1989) [hereinafter PSYCHOTHERAPISTS’ SEXUAL INVOLVEMENT]; John C. Gonsiorek & Laura S. Brown, Post Therapy Sexual Relationships with Clients, in PSYCHOTHERAPISTS’ SEXUAL INVOLVEMENT, supra, at 289, 289, 298.

14 Gartrell, Nanette et al., Psychiatrist-Patient Sexual Contact: Results of a National Survey, I: Prevalence, 143 AM. J . PSYCHIATRY 1126, 1126 (1986).Google Scholar

15 See, e.g., MARCELLO PAGANO & KIMBERLEE GAUVREAU, PRINCIPLES OF BIOSTATISTICS 472 (forthcoming 1993) (“In situations in which the units of study are persons, there typically exist individuals who either cannot be reached or cannot or will not provide the information requested. Bias is present if these nonrespondents differ systematically .from the individuals who do respond.”).

16 Id. at 472-73.

17 See, e.g., OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, STATE MEDICAL BOARDS AND MEDICAL DISCIPLINE 7-10 (1990) [hereinafter OIG, STATE MEDICAL BOARDS]; Sexual Misconduct, supra note 7, at 2744-45. See generally STANLEY J. GROSS, OF FOXES AND HEN HOUSES: LICENSING AND THE HEALTH PROFESSIONS (1984). A General Accounting Office report, which summarized the results of two years of studies and reports on the increasing cost of medical malpractice insurance, stated, “We suggest that state licensing boards and professional peer review groups take more aggressive actions to identify, discipline or remove from practice physicians who do not deliver an acceptable quality of medical care … .” GENERAL ACCOUNTING OFFICE, MEDICAL MALPRACTICE: A FRAMEWORK FOR ACTION 35 (1987).

18 Schoener, supra note 13, at 274; see also Gonsiorek & Brown, supra note 13, at 298.

19 See DEBORAH A. STONE, THE LIMITS OF PROFESSIONAL POWER 14-15 (1980); see also Donald C. Dilworth, Medical Board Discipline Fails To Protect Patients, 26 TRIAL, Aug. 1990, at 15, 15-16,72. See generally citations collected in WILLIAM J. CURRAN ET AL., HEALTH CARE LAW, FORENSIC SCIENCE, AND PUBLIC POLICY 469-70 (4th ed. 1990); OIG, STATE MEDICAL BOARDS supra note 17; BENJAMIN SHIMBERG, OCCUPATIONAL LICENSING: A PUBLIC PERSPECTIVE 101-05 (1982).

20 See Federation of State Medical Boards, Annual Meeting Program: Medical Boards in the Age of Accountability, at 7 (1991); Federation of State Medical Boards, Annual Meeting Program: Medical Licensure: A New Decade — A New Challenge, at 2 (1990); Federation of State Medical Boards, Annual Meeting Program: Medical Boards and Responsible Change: Variations on a Theme, at 8 (1989); Federation of State Medical Boards, Annual Meeting Program: New Perspectives and Opportunities in Quality Assurance: Our Role, at 10 (1988).

21 Jorgenson, Linda et al., The Furor over Psychotherapist-Patient Sexual Contact: New Solutions to an Old Problem, 32 WM. & MARY L. REV. 645, 728 (1991).Google Scholar

22 See, e.g., PETER RUTTER, SEX IN THE FORBIDDEN ZONE: WHEN MEN IN POWER — THERAPISTS, DOCTORS, CLERGY, TEACHERS, AND OTHERS — BETRAY WOMEN's TRUST 71-73 (1989).

23 See id. at 180-81; 61 AM. JUR. 2D Physicians, Surgeons and Other Healers § 104 (1981 & Supp. 1992). It does appear, however, that courts are increasingly willing to give the plaintiff an opportunity to prove that the “injury to the mind could interfere with the discovery of the cause of action,” thus tolling the statute. Riley v. Presnell, 565 N.E.2d 780, 786 (Mass. 1991).

24 See, e.g., RUTTER, supra note 22, at 35-36.

25 In re Adler, Medical License #11260, Final Order at 5 (State Bd. of Medical Examiners of S.C. Feb. 19, 1988).

26 Id. at 5-7.

27 Friedman v. Board of Registration in Medicine, 561 N.E.2d 859, 860 (Mass. 1990), cert, denied, 111 S. Ct. 1014 (1991).

28 759 S.W.2d 295 (Mo. Ct. App. 1988).

29 Id. at 297.

30 Id. The State Board of Chiropractic Examiners subsequently reviewed the AHC record, heard additional evidence, and ordered the practitioner's license revoked. Id.

31 Id. at 297-98.

32 5 U.S.C.A. §§ 551-76, 701-06, 3105, 3344 (West 1977 & Supp. 1992).

33 See, e.g., CAL. GOV't CODE § 11513(c) (West 1992); N.Y. A.P.A. LAW § 306 (McKinney 1984 & Supp. 1992); see also UNIFORM LAW COMMISSIONERS’ MODEL STATE ADMINISTRATIVE PROCEDURE ACT (1961) § 10, 15 U.L.A. 238 (1990 & Supp. 1992). This statute has been adopted in numerous states, including Connecticut, Georgia, Hawaii, Idaho, Illinois, Iowa, Louisiana, Maine, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, and Rhode Island. Id. at 137.

34 5 U.S.C.A. § 556(d) (West 1977 & Supp. 1992); see also Administrative Conference of the United States, Use of Federal Rules of Evidence in Federal Agency Adjudications, Recommendation No. 86-2, reprinted in 4 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 305.86-2 app. 22A-1 (1992).

35 3 KENNETH C. DAVIS, ADMINISTRATIVE LAW TREATISE § 16:4 (2d ed. 1980).

36 Id. (quoting SEN. DOC. NO. 248, 79th Cong., 2d Sess. 208 (1946)). The House Committee considering the legislation “made the same statement.” Id. (citing SEN. DOC. NO. 248, 79th Cong., 2d Sess. 279 (1946)).

37 Multi-Medical Convalescent & Nursing Center v. NLRB, 550 F.2d 974, 977-78 (4th Cir.) (footnote omitted), cert, denied, 434 U.S. 835 (1977).

38 See, e.g., Kentucky State Bd. of Medical Licensure v. Ghali, 721 S.W.2d 731, 733 (Ky. Ct. App. 1986); RANDOLPH P. REAVES, THE LAW OF PROFESSIONAL LICENSING AND CERTIFICATION 180-81 (1984).

39 MASS. GEN. L. ch. 30A, § 11(2) (1990).

40 DAVIS, supra note 35, § 16:10.

41 See, e.g., STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 103-04 (1979 & Supp. 1982).

42 STEIN et al., supra note 34, § 28.03.

43 Republic Aviation Corp. v. NLRB, 324 U.S. 793, 800 (1945).

44 See STEIN et al., supra note 34, § 28.03.

45 Dayton Power & Light Co. v. Public Util. Comm'n, 292 U.S. 290, 299 (1934).

46 STEIN et al., supra note 34, § 28.03.

47 For federal administrative agencies, this requirement is set forth at 5 U.S.C.A. § 706(2)(E) (West 1977 & Supp. 1992); see also STEIN et al., supra note 34, §§ 51.01[2], 51.02. The substantial evidence standard of review is also the most widely used standard for state courts’ review of administrative agency actions. McGrath, William A. et al., Project: State Judicial Review of Administrative Action, 43 ADMIN. L. REV. 571, 726 (1991).Google Scholar

48 CHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL CONTROL OF BUREAUCRACY 32 (1990).

49 Arthurs v. Board of Registration in Medicine, 418 N.E.2d 1236, 1241 (Mass. 1981).

50 Morris v. Board of Registration in Medicine, 539 N.E.2d 50 (Mass.), cert, denied, 493 U.S. 977 (1989).

51 Id. at 55.

52 Id.

53 Id.

54 Welty v. State Bd. of Chiropractic Examiners, 759 S.W.2d 295, 297 (Mo. Ct. App. 1988).

55 431 N.W.2d 730 (Wis. Ct. App. 1988).

56 Id. at 731-32.

57 Id. at 732.

58 Id.

59 Id.

60 Id.

61 Id.

62 Id., id. at 733.

63 See id. at 733.

64 Id. at 732.

65 Id.

66 Id. at 731, 733.

67 Id. at 733.

68 Id.

69 Id. at 734 (citation omitted).

70 The survey asked the respondents the following questions:

  1. 1.

    1. In any sexual misconduct case, has any Board or defense attorney ever introduced (or attempted to introduce) psychiatric evidence regarding the complaining witness's credibility? (For example, has there been evidence of post-traumatic stress disorder to explain a delay in filing the complaint?)

    • —Yes —No

    If yes, please describe the issue(s) and the evidence introduced (or attempted). If you have any decision which discusses psychiatric evidence in a sexual misconduct case, especially Board or other unreported decisions, please provide a copy.

  2. 2(a)

    2(a) After your board brings formal charges in a sexual misconduct case, describe the tribunal which hears witnesses and makes initial credibility findings:

    • — Full Board

    • — Board sub-panel

    • — Board sub-panel and Administrative Law Judge

    • — Single Board member

    • — Administrative Law Judge

    • — Other (describe):

  3. 2(b)

    2(b) If an Administrative Law Judge participates in the process, is he/she:

    • — on the Board staff

    • — on your parent agency staff

    • — from a separate state agency

    • — Other relationship to your Board (describe):

  4. 3.

    3. Please provide any case or statute which specifies how your Board makes credibility determinations.

  5. 4.

    4. Further credibility findings: please use this space to describe whether and how your tribunal's initial witness credibility findings are reviewed either through further administrative proceedings or on appeal. Please note the standard of review (e.g., “substantial deference to fact finder”) at each level of review, and whether witness credibility has a standard of review which differs from the standard for other types of findings. Again, any citations and unreported cases would be helpful.

71 The membership consists of the fifty state medical and osteopathic boards, and the boards in the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands. FEDERATION OF STATE MEDICAL BOARDS OF THE UNITED STATES, FSMB HANDBOOK 35-47 (1992). The ten Canadian provincial medical licensing authorities hold affiliate membership in the Federation, see id. at 48, but they were not surveyed.

72 See answer to question no. 1, survey responses from Connecticut, Florida, Georgia, Idaho, Kansas, Maine, Minnesota, Missouri, New York, South Carolina, Texas, and Virginia; see also notes from telephone interview with Muriel Ann Finnegan, Associate Complaint Counsel, Massachusetts Board of Registration in Medicine (Apr. 29, 1991) (on file with author). All survey responses are on file with the author.

73 “Rape Trauma Syndrome is the acute phase and long-term reorganization process that occurs as a result of forcible rape or attempted forcible rape. This syndrome of behavioral, somatic, and psychological reactions is an acute stress reaction to a life-threatening situation.” Burgess, Ann W. & Holmstrom, Lynda L., Rape Trauma Syndrome, 131 AM. J. PSYCHIATRY 981, 982 (1974).CrossRefGoogle Scholar

74 Post-Traumatic Stress Disorder (PTSD) “is the development of characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience… . The characteristic symptoms involve re-experiencing the traumatic event, avoidance of stimuli associated with the event or numbing of general responsiveness, and increased arousal.” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 247 (3d ed. rev. 1987) [hereinafter DSM-III-R].

75 Answer to question no. 1, New York survey response.

76 Letter from William T. Moran, Chief Investigator, State Board of Registration for the Healing Arts, to Andrew L. Hyams.J.D., Harvard School of Public Health (Mar. 13, 1991).

77 Telephone interview with Muriel Ann Finnegan, Associate Complaint Counsel, Massachusetts Board of Registration in Medicine (Apr. 29, 1991) (author's notes on file with author).

78 Id.

79 Id.

80 Id.

81 In re Adler, Medical License #11260, Final Order at 2-3 (State Bd. of Medical Examiners of S.C. Feb. 19, 1988). The board indefinitely suspended the physician's license to practice medicine until he paid a $5000 fine. Id. at 7. The board also ordered that, after paying the fine, the physician was to be placed on probation for an indefinite period. Id. The terms of probation included requiring the physician to appear at regular intervals before the board as well as random examinations and reviews of the physician's office and hospital records with respect to patient care and prescription practices. Id. at 8.

82 Id. at 3-4. In this case, the board did not explicitly decide that Dr. Adler's misconduct included specific sexual contact. Id. at 5-6. Instead, the board relied on evidence that “his overall relationship with [the patient] was non-therapeutic, outside the bounds of a proper physicianpatient relationship, and harmful to the patient.” Id.

83 In re Prior, Medical License #3687 (State Bd. of Medical Examiners of S.C. May 27, 1988).

84 Id. at 2-3.

85 Id. at 4. For a discussion of this expert testimony in the related civil litigation, see Honea v. Prior, 369 S.E.2d 846, 848-50 (S.C. Ct. App. 1988) (concluding that, if the trial court had committed any error by allowing the patient's expert to testify regarding post-traumatic stress disorder, it was harmless because the physician's attorney had failed to object to similar testimony during the trial).

86 Answer to question no. 1, New York survey response.

87 In re Adler, Medical License #11260, Final Order at 4 (State Bd. of Medical Examiners of S.C. Feb. 19, 1988); see supra note 81 and accompanying text.

88 Telephone interview with Muriel Ann Finnegan, Associate Complaint Counsel, Massachusetts Board of Registration in Medicine (Apr. 29, 1991) (author's notes on file with author).

89 Id.

90 In re Raif Shafek Ishak El Roady, No. 88-53-CA, Final Decision and Order at 35 (Mass. Bd. of Registration in Medicine Dec. 21, 1988), aff'd sub nom., Raif Shafek Ishak El Roady v. Board of Registration in Medicine, No. 89-38 (Mass. June 30, 1989). In its decision, the Supreme Judicial Court of Massachusetts stated that the Board of Registration was “[not] obliged to credit the psychiatrists’ opinions that [the physician] had modified his behavior. A psychiatric expert cannot guaranty that a behavioral problem will not recur, and the board was free to conclude that the public need not run the risk.” Raif Shafek Ishak El Roady v. Board of Registration in Medicine, No. 89-38, slip op. at 15 (Mass. June 30, 1989) (citing Mancini v. Board of Registration in Medicine, 390 Mass. 1002 (1983)).

91 In re Raif Shafek Ishak El Roady, No. 88-53-CA, Final Decision and Order at 36 (Mass. Bd. of Registration in Medicine Dec. 21, 1988). The stipulation that the parties filed contained a statement that the physician did “not fit the psychiatric profile of a sexual offender or a sexually impulsive person” and that, instead, “his demeanor and attitude toward women is respectful and caring.” Id. The board also rejected this profile, since it already had made findings inconsistent with the conclusion that the doctor was “respectful and caring” of women. Id. at 36-37.

For example, the board found that the respondent had engaged in various forms of sexual misconduct with at least five women patients. Id. at 24-28, 30, 32, 33. It also found that, when a pregnant patient had expressed concern about her weight gain, “[w]ith [the patient's] stomach exposed, the [Respondent initiated physical contact in this area by rubbing her stomach, squeezing her abdominal flesh between his fingers, biting down on the flesh he gathered, and making a growling noise.” Id. at 33.

92 In re Kosasky, No. 1007, Final Decision and Order at 13-14 (Mass. Bd. of Registration in Medicine Mar. 4, 1987).

93 Id. at 13.

94 Id. at 13-14 (citations omitted).

95 Answer to question no. 1, Connecticut survey response.

96 Answer to question no. 1, Virginia survey response.

97 Answer to question no. 1, Minnesota survey response. John Breviu of the Minnesota Attorney General's Office explained the procedural history behind the admission of this evidence:

Ordinarily, a broad examination of a complainant's mental health is not permitted. In the recent case discussed above, however, [board] investigators had obtained access to various mental health records of the complainant, with her consent, so as to assess her credibility before we initiated any case. The [administrative law judge] ruled that by giving consent to investigators to review the records, the complainant waived her claim of confidentiality and permitted the respondent physician to delve into her mental health history.

Id. (citation omitted).

98 Answer to question no. 1, Florida survey response.

99 Answer to question no. 1, Maine survey response.

100 Answer to question no. 1, Georgia survey response.

101 Answer to question no. 1, Idaho survey response. In at least one case, the testimony was used to support the defense that the patient was abusing drugs. Id.

102 Answer to question no. 1, Kansas survey response.

103 See, e.g., Curran, William J., Expert Psychiatric Evidence of Personality Traits, 103 U. PA. L. REV. 999, 1013 (1955).CrossRefGoogle Scholar

104 See Sarno, Gregory G., Annotation, Admissibility, at Criminal Prosecution, of Expert Testimony on Rape Trauma Syndrome, 42 A.L.R.4TH 879 (1985)Google Scholar; Bradshaw, L.A., Annotation, Necessity and Admissibility of Expert Testimony as to Credibility of Witness, 20 A.L.R.3D 684 (1968).Google Scholar

105 For articles advocating the admission of testimony regarding rape trauma syndrome or similar testimony in cases involving sexual crimes, see Massaro, Toni M., Experts, Psychology, Credibility and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 MINN. L. REV. 395 (1985)Google Scholar; McCord, David, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 OR. L. REV. 19 (1987)Google Scholar; Lorenzen, Dirk, Comment, The Admissibility of Expert Psychological Testimony in Cases Involving the Sexual Misuse of a Child, 42 U. MIAMI L. REV. 1033 (1988)Google Scholar. Some commentators have been critical of this type of testimony. See, e.g., Cohen, Andrew, Note, The Unreliability of Expert Testimony on the Typical Characteristics of Sexual Abuse Victims, 74 GEO. L.J. 429 (1985)Google Scholar; Note, Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 VA. L. REV. 1657 (1984)CrossRefGoogle Scholar [hereinafter Note, Checking the Allure] (criticizing the use of such testimony to show lack of consent in rape cases).

106 See supra note 73.

107 McCord, supra note 105, at 40.

108 See, e.g., State v. Strickland, 387 S.E.2d 62, 65 (N.C. Ct. App.) (“Most jurisdictions allow such testimony on PTSD [post traumatic stress disorder], or on rape trauma syndrome, or expert testimony regarding reactions or behavior consistent with other victims of sexual assault.”), review denied, 392 S.E.2d 100 (N.C. 1990); see also Economou, Nicole R., Note, Defense Expert Testimony on Rape Trauma Syndrome: Implications for the Stoic Victim, 42 HASTINGS L.J. 1143, 1149-52 (1991)Google Scholar; Karla Fischer, Note, Defining the Boundaries of Admissible Expert Psychological Testimony on Rape Trauma Syndrome, 1989 U. ILL. L. REV. 691, 692 & n.15.

109 See McCord, David, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray into the Admissibility of Novel Psychological Evidence, 77 J. CRIM. L. & CRIMINOLOGY 1, 18-24 (1986)CrossRefGoogle Scholar.

110 See CHARLES T. MCCORMICK ET AL., MCCORMICK ON EVIDENCE § 206D n.16 (John W. Strong ed., 4th ed. 1992); McCord, supra note 105, at 41-43.

111 See, e.g., State v. Hall, 406 N.W.2d 503, 504-05 (Minn. 1987); State v. Myers, 359 N.W.2d 604, 609-10 (Minn. 1984); State v. Saldana, 324 N.W.2d 227, 231 (Minn. 1982); CURRAN et al., supra note 19, at 196-99; see also Roger S. Hanson, James Alphonzo Frye Is Sixty-Five Years Old; Should He Retire?, 16 W. ST. U. L. REV. 357, 430 n.278, 431 n.282, 432 n.292, 446-47 nn.366-67 (1989).

112 324 N.W.2d 227 (Minn. 1982).

113 Id. at 229.

114 Id. at 230.

115 Id. at 231.

116 359 N.W.2d 604 (Minn. 1984).

117 Id. at 609.

118 Id. at 609-10.

119 Id. at 610.

120 681 P.2d 291 (Cal. 1984).

121 Id. at 301.

122 Id. at 298.

123 The term “battered child syndrome,” first recognized in the early 1960s, describes a clinical condition in young children who have been physically abused, usually by a parent or foster parent. See Kempe, C. Henry et al., The Battered-Child Syndrome, 181 JAMA 17, 17 (1962)CrossRefGoogle Scholar and reprinted in 251 JAMA 3288 (1984). Battered child syndrome is often the cause of permanent injury or death. Id. at 17, 24. The authors of this significant 1962 article advised anyone examining children to consider the syndrome “in any child exhibiting evidence of possible trauma or neglect (fracture of any bone, subdural hematoma, multiple soft tissue injuries, poor skin hygiene, malnutrition) or where there is a marked discrepancy between the clinical findings and the historical data as supplied by the parents.” Id. at 24. A few years after the article's publication, all but one state had enacted child abuse reporting statutes. Heins, Marilyn, The “Battered Child” Revisited, 251 JAMA 3295, 3295 (1984).CrossRefGoogle Scholar

124 Bledsoe, 681 P.2d at 300.

125 Id.

126 Id.

127 Id. at 299.

128 220 Cal. Rptr. 126 (Cal. Ct. App. 1985), opinion withdrawn by order of court (from official publication), modified, 174 Cal. App. 3d 174b (1985).

129 Id. at 127.

130 Id. at 128.

131 Id. (citing Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, CHILD ABUSE & NEGLECT, Vol. 7, 177 (1983)). See generally Younts, Diana, Note, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 DUKE L.J. 691 (1991).CrossRefGoogle Scholar

132 Payan, 220 Cal. Rptr. at 129-30.

133 The Payan court did note, however, that child abuse now includes sexual abuse, and that the experts who defined battered child syndrome during the 1960s recognized that psychiatric factors were a significant part of the picture, but conceded that knowledge of these factors was limited at the time. Id. at 129.

134 Bledsoe, 681 P.2d at 299-300.

135 Payan, 220 Cal. Rptr. at 129.

136 Id. at 131 (citing State v. Middleton, 657 P.2d 1215, 1212 (1983) (Roberts, J., concurring)).

137 231 Cal. Rptr. 658 (Cal. Ct. App. 1986).

138 Id. at 660-61.

139 261 Cal. Rptr. 479, 484 (Cal. Ct. App. 1989).

140 See Carter, Linda E., Admissibility of Expert Testimony in Child Sexual Abuse Cases in California: Retire Kelly-Frye and Return to a Traditional Analysis, 22 LOY. L.A. L. REV. 1103, 116-36 (1989).Google Scholar

141 See, e.g., People v. Jeff, 251 Cal. Rptr. 135, 152 (Cal. Ct. App.), modified, slip op. (Cal. Ct. App. 1988) (Although testimony of child molestation syndrome cannot be used to establish molestation in fact, it can be used “to rebut the inference the alleged victim was being untruthful as shown by her delay and inconsistencies in reporting.” This testimony is admissible only with respect to children.).

142 See CURRAN et al., supra note 19, at 199.

143 See, e.g., PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE 5 (1982).

144 LeBoeuf, Denise, Psychiatric Malpractice: Exploitation of Women Patients, 11 HARV. WOMEN's L.J. 83, 98-99 (1988)Google Scholar (citing JONAS B. ROBITSCHER, THE POWERS OF PSYCHIATRY 424 (1980)); see also ALAN A. STONE, LAW, PSYCHIATRY AND MORALITY: ESSAYS AND ANALYSIS 209 (1984); Pope, Kenneth S., Research and Laws Regarding Therapist-Patient Sexual Involvement: Implications for Therapists, 40 AM. J. PSYCHOTHERAPY 564, 567 (1986).CrossRefGoogle Scholar

145 Ellen T. Luepker, Sexual Exploitation of Clients by Therapists: Parallels with Parent-Child Incest, in PSYCHOTHERAPISTS’ SEXUAL INVOLVEMENT, supra note 13, at 73, 73-77 (citing C. BATES & A. BRODSKY, SEX IN THE THERAPY HOUR (1988) and others); see KENNETH S. POPE & JACQUELINE C. BOUHOUTSOS, SEXUAL INTIMACY BETWEEN THERAPISTS AND PATIENTS 53-54 (1986); Kardener, Sheldon H., Sex and the Physician-Patient Relationship, 131 AM. J. PSYCHIATRY 1134-36 (1974)Google Scholar; Marmor, Judd, Sexual Acting-Out in Psychotherapy, 32 AM. J. PSYCHOANALYSIS 3-8 (1972).CrossRefGoogle Scholar

146 Luepker, supra note 145, at 76.

147 Id.; see Richard P. Kluft, Incest and Subsequent Revictimizalion: The Case of Therapist-Patient Sexual Exploitation, with a Description of the Sitting Duck Syndrome, in INCEST-RELATED SYNDROMES OF ADULT PSYCHOPATHOLOGY 263, 265 (Richard P. Kluft ed., 1990).

148 See Sexual Misconduct, supra note 7, at 2743; see also, e.g.. Department of Professional Regulation v. Wagner, 405 So. 2d 471 (Fla. Dist. Ct. App. 1981) (penalizing a chiropractor who committed sexual misconduct by kissing patient twice, brushing his hand across her breast, and carrying on suggestive conversation while performing arguably legitimate manipulations); Mancini v. Board of Registration in Medicine, 456 N.E.2d 1136 (Mass. 1983) (distributing controlled substances to patient for no medical reason in exchange for sexual favors was grounds for revocation); Thangavelu v. Department of Licensing & Regulation, 386 N.W.2d 584 (Mich. App.) (holding revocation of physician's license justified because physician found to have touched one patient's clitoris with his tongue and another patient's rectum for no medical purpose), appeal denied, 425 Mich. 864 (1986); In re Polk, 449 A.2d 7 (N.J. 1982) (holding that kissing and fondling female adolescent patients constitutes gross malpractice and grounds for license revocation).

149 See proposed Massachusetts legislation, H.B. 5712 §§ 2-3 (1990) (prohibiting sexual contact between a patient and 1) a mental health professional during treatment period and within one year following treatment, and 2) a health professional during the treatment period only); see also supra note 13 and accompanying text.

150 S. Michael Plaut & Barbara H. Foster, Roles of the Health Professional in Cases Involving Sexual Exploitation of Patients, in SEXUAL EXPLOITATION OF PATIENTS BY HEALTH PROFESSIONALS 5, 11 (Ann W. Burgess & Carol R. Hartman eds., 1986).

151 In re Fredrickson, No. 87-47-HY, Final Decision and Order at 22-23 (Mass. Bd. of Registration in Medicine, Dec. 9, 1987). The author was the hearing officer in this case.

152 Jorgenson et al., supra note 21, at 683.

153 Id. at 668 (citing COLO. REV. STAT. §§ 18-3-403(h), -404(g) (1986); MICH. COMP. LAWS ANN. § 750.520b(1)(f)(iv) (West Supp. 1990); N.H. REV. STAT. ANN. § 632-A:2(VII) (1986); R.I. GEN. LAWS § ll-37-2(D) (Supp. 1989); WYO. STAT. § 6-2-303(a)(vii) (1988)).

154 Note, Checking the Allure, supra note 105, at 1660.

155 McCord, supra note 109, at 31-41.

156 McCord, supra note 105, at 94-101.

157 McCord, supra note 109, at 31; McCord, supra note 105, at 94.

158 293 F. 1013, 1014 (D.C. Cir. 1923).

159 McCord, supra note 105, at 84-85.

160 376 A.2d 827, 832 (D.C), cert, denied, 434 U.S. 973 (1977).

161 Id. (quoting MCCORMICK ON EVIDENCE § 13, at 29-31 (E. Cleary ed., 2d ed. 1972)).

162 See McCormick, Mark, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 911-12 (1982).Google Scholar

163 See JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN's EVIDENCE ¶ 702[03] (1988 & Supp. 1992).

164 McCord, supra note 105, at 93-94.

165 WEINSTEIN & BERGER, supra note 163, ¶ 702[03].

166 See McCord, supra note 105, at 92-94.

167 See, e.g., Morris v. Board of Registration in Medicine, 539 N.E.2d 50, 52-53 (Mass.) (holding that administrative magistrate erred in admitting evidence of complainant's prior sexual history because such admission is contrary to public policy expressed in criminal rape shield statute), cert, denied, 493 U.S. 977 (1989); Davis v. Psychology Examining Bd., 431 N.W.2d 730, 733-34 (Wis. Ct. App. 1988) (upholding hearing examiner's refusal to allow expert testimony as to witness's honesty, reasoning that criminal procedure rule prohibits expert from commenting on the credibility of a witness).

168 McCord, supra note 109, at 31; McCord, supra note 105, at 95.

169 See McCord, supra note 109, at 31.

170 See id.

171 See id.

172 See id.

173 See, e.g.. Block v. Ambach, 528 N.Y.S.2d 204, 206 (N.Y. App. Div. 1988) (credibility issues are “best resolved by the panel hearing the testimony, [sic] and the administrative agency with expertise in the field.”), aff'd en banc, 537 N.E.2d 181 (N.Y. 1989).

174 See, e.g., Morris v. Board of Registration in Medicine, 539 N.E.2d 50, 54-56 (Mass.), cert, denied, 493 U.S. 977 (1989).

175 See, e.g., Bettencourt v. Board of Registration in Medicine, 558 N.E.2d 928, 932 (Mass. 1990).

176 See, e.g., STARR, supra note 143, at 358-59.

177 For a general discussion of two witness-credibility schools of thought — those who look to whether the “demeanor” of the witness could “conceivably sustain the agency's evaluation,” and those who prefer to rely upon “the inherent probability of testimony in light of general human experience, the interest of the witness in the case, and other background circumstances” — see BREYER & STEWART, supra note 41, at 186-87.

178 Leib v. Board of Examiners for Nursing, 411 A.2d 42, 48-49 (Conn. 1979); Jaffe v. State Dep't of Health, 64 A.2d 330, 336 (Conn. 1949).

179 560 A.2d 403 (Conn. 1989).

180 Id. at 411-12.

181 Id.

182 See survey question no. 2, supra note 70.

183 See answers to question no. 2(a), survey responses from Maine, Texas, Virginia, Nevada, Montana, North Carolina, Vermont, Mississippi, Alabama. Nevada, Iowa, Delaware, Rhode Island, New York, Virginia, and Connecticut reported that they sometimes or always use a subpanel of the board. See answer to question no. 2(a), survey responses from these states. In addition, South Carolina uses a three-physician panel. See answer to question 2(a), South Carolina survey response.

184 See answer to question no. 2(a), survey responses from Alaska, California, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Minnesota, Montana, Nevada, New York, North Dakota, Pennsylvania (hearing examiner), Texas, Washington, and West Virginia.

185 See answer to question no. 2(b), survey responses from California, Florida, Iowa, Kentucky, Minnesota, Montana, North Carolina, North Dakota, and Washington.

186 See answer to question no. 2(b), survey responses from Alaska, Georgia, Hawaii, New York, and Pennsylvania.

187 See answer to question no. 2(a) & (b), survey forms from Idaho, Kansas, Montana, Nevada, Texas, and West Virginia.

188 552 N.Y.S.2d 701 (N.Y. App. Div. 1990).

189 Id. at 702. The panel almost unanimously found the testimony of the three patients involved not credible. Id. One panel member, however, found the allegations of the third patient, “patient C,” credible, but determined that a charge of medical misconduct should not be sustained because the psychiatrist was not deemed to have been practicing medicine at the time of the conduct. Id.

190 Id.

191 Id.

192 Id. The Board of Regents supervises the admission to and practice of licensed professions in New York State. See N.Y. EDUC. LAW § 6506 (McKinney 1985 & Supp. 1992).

193 Andreski, 552 N.Y.S.2d at 703.

194 Id. Other states reporting that their boards or commissions may change credibility findings based on substantial evidence include Hawaii, answer to question no. 4, Hawaii survey response, and Kentucky, answer to question no. 4, Kentucky survey response.

195 539 N.E.2d 50 (Mass.), cert, denied, 493 U.S. 977 (1989).

196 Id. at 50-51.

197 Id. at 55. Other states reporting that they require substantial deference to the fact-finder include Florida, answers to question nos. 3 & 4, Florida survey response (reporting use of a “great deference” standard - that the board cannot reverse the hearing officer's findings “unless there is no competent substantial evidence”), Kentucky, answer to question no. 4, Kentucky survey response, Nevada, answer to question nos. 3 & 4, Nevada survey response, and West Virginia, answer to question no. 4, West Virginia survey response; see also Molnar v. Board of Medical Examiners, 773 P.2d 726, 727 (Nev. 1989).

198 McCord, supra note 109, at 31-32; McCord, supra note 105, at 98-99.

199 McCord, supra note 109, at 31-32; see supra notes 158, 162, and 163 and accompanying text.

200 McCord, supra note 105, at 99.

201 Id.

202 Davis v. Psychology Examining Bd., 431 N.W.2d 730, 732 (Wis. Ct. App. 1988); Raif Shafek Ishak El Roady v. Board of Registration in Medicine, No. 89-38, Memorandum of Decision at 15 (Mass. June 30, 1989).

203 McCord, supra note 109, at 41-64.

204 Id. at 41-42.

205 See McCord, supra note 105, at 43; MCCORMICK, supra note 110, § 206D nn.17-19.

206 See supra part V.B.1.

207 Cohen, supra note 105, at 445-46.

208 Id.

209 See, e.g., answer to question no. 1, survey response from New York; Letter from William T. Moran, Chief Investigator, Missouri State Board of Registration for the Healing Arts to Andrew L. Hyams, J.D. Harvard School of Public Health (Mar. 13, 1991).

210 Some of Clarence Thomas's advocates challenged Anita Hill's credibility on this basis. See, e.g., Lewis, supra note 1, at A14.

211 See, e.g., Gutheil, supra note 12, at 597.

212 See MCCORMICK, supra note 110, § 206D n.34; McCord, supra note 105, at 77-79.

213 McCord, supra note 109, at 32-33, 39-40; McCord, supra note 105, at 100-01.

214 McCord, supra note 109, at 39.

215 Id. at 39; see also id. at 32-33.

216 Id. at 33, 39.

217 Id. at 39.

218 See supra part V.B.

219 McCord, supra note 109, at 33, 39.

220 Id. at 39.

221 Id. at 33, 39-40.

222 See, e.g., Connecticut State Medical Soc'y v. Connecticut Bd. of Examiners in Podiatry, 546 A.2d 830 (Conn. 1988) (holding that statute defining scope of podiatry practice in state as “of the foot” does not include treatment of the ankle); Brodie y. State Bd. of Medical Examiners, 427 A.2d 104 (N.J. App.) (prohibiting physicians from discriminating against chiropractors based on classification of license in chiropractors’ requests for diagnostic radiological services), cert. denied, 434 A.2d 1068 (N.J. 1981); Paravecchio v. Memorial Hosp., 742 P.2d 1276 (Wyo. 1987) (holding that, despite completion of accredited anesthesiology training, dentists not allowed to practice general anesthesiology because this was defined as “practice of medicine”), cert, denied, 485 U.S. 915 (1988).

223 McCord, supra note 109, at 33, 40.

224 See supra note 79 and accompanying text.

225 “The essential feature of this disorder is a pervasive pattern of instability of self-image, interpersonal relationships, and mood, beginning by early adulthood and present in a variety of contexts.” DSM-III-R, supra note 74, at 346.

226 Gutheil, supra note 12, at 597. But See Jordan, Judith V. et al., More Comments on Patient-Therapist Sex, 147 AM. J. PSYCHIATRY 129-30 (1990)CrossRefGoogle Scholar (letter to the editor).

227 See, e.g., Arthurs v. Board of Registration in Medicine, 418 N.E.2d 1236, 1246 (Mass. 1981) (citing SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947)). See BREYER & STEWART, supra note 41, at 403-05.