The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Joseph F. Stoner, M.D., petitions for review of an adjudication of the State Board of Medicine (Board) revoking his license to practice medicine for unprofessional conduct. The Board held that Dr. Stoner's examinations of two female patients constituted sexual misconduct for the stated reason that these examinations deviated from accepted standards of medical care and were medically unnecessary. Because the record lacked expert testimony to support the Board's premise that the examinations departed from accepted standards of care, or were medically unnecessary, we reverse.
In May of 2004, MKH, a 24-year old female, filed a complaint with the Board about her October 2003 physical examination by Dr. Stoner. MKH also initiated a tort action against Dr. Stoner. Some years later, on September 15, 2006, the Bureau of Occupational Affairs (Bureau) issued an order to show cause to Dr. Stoner, alleging that he had committed sexual misconduct by performing a medically unnecessary pelvic and breast examination of MKH.
In 2005, AMS, a 19-year old female, filed a complaint with the Board about Dr. Stoner and initiated a tort action against him. On October 13, 2006, the Bureau issued an order to show cause to Dr. Stoner, alleging that he committed sexual misconduct by touching AMS's genital area when it was not medically necessary.
Dr. Stoner answered both orders, denying that anything inappropriate had occurred in the course of his examination or treatment of either MKH or AMS. The two proceedings were consolidated for hearing, which was conducted in May of 2007.
The Bureau's first witness was Dr. Stoner, called to testify as on cross-examination. Dr. Stoner testified that he was a licensed M.D. and board certified in pain management and anatomic pathology. He works part time for Hector Pagan, M.D., at the Advanced Pain Management Center in Monaca, Pennsylvania. He also maintains his own practice in New Castle, Pennsylvania, which focuses on pain management but includes a primary care component.
Dr. Stoner met MKH for the first time in early September of 2003 at Dr. Pagan's office. MKH, who makes her living selling memberships in Sam's Club, was at Dr. Pagan's office for that purpose. MKH made an appointment to see Dr. Stoner at his New Castle office to sell him a Sam's Club membership.
In the course of her sales presentation on September 26, 2003, at Dr. Stoner's New Castle office, MKH asked Dr. Stoner about his medical practice. She related her history of eczema, rosacea, varicose veins and "asked [Dr. Stoner] for help."*fn1 Notes of Testimony (N.T.) 5/9/07, at 30; Reproduced Record at 9a (R.R. ___). Dr. Stoner confirmed that he could help, and MKH scheduled an appointment for the following week. It was agreed that MKH would bring information to Dr. Stoner about an upgraded Sam's Club Plus membership when she returned for this medical appointment.
On October 3, 2003, MKH appeared for her appointment at Dr. Stoner's office and completed a lengthy medical questionnaire. Dr. Stoner stated that he did not have an assistant with him during MKH's examination, explaining that there was only one staff person in the office that day, his sister-in-law. She was busy with other patients but was in and out of the examination room during MKH's appointment. At one point, she accompanied MKH to the restroom. N.T. 5/09/07, at 39; R.R. 11a.
Dr. Stoner explained that he did a complete physical examination of MKH, including a breast and pelvic examination, because MKH had not had one for years. Further, she did not have a family or OB/GYN physician to address her complaint of premenstrual vaginal discharge. In addition, MKH had responded both "yes" and "no" to the question in the patient questionnaire regarding pregnancy. Because Dr. Stoner did not have a gynecological table or speculum in his office, he could not do a visual inspection of MKH's vagina, which inspection is necessary to detect some types of tumors. Dr. Stoner does not routinely perform pelvic examinations, but he stated that he had done approximately ten in the ten years prior to the hearing.
With respect to AMS, Dr. Stoner stated that he examined her for the first time in October of 2003 at Dr. Pagan's clinic at the request of AMS's mother, who was Dr. Stoner's patient. He stated that he performed a breast examination on AMS at her initial appointment because she told him she did not know how to do one and was studying nursing. Dr. Stoner treated AMS for pain management throughout October of 2003. Treatment resumed in August of 2004, after AMS suffered injuries in an automobile accident. Dr. Stoner treated AMS's pain with a series of injections that were administered to the lower buttocks. This treatment continued through February 2005. Dr. Stoner denied ever touching AMS's genital area.
The Bureau then presented the testimony of MKH. She testified that she tried to cancel her October 3, 2003, appointment with Dr. Stoner, suggesting to him that she fax the upgraded Sam's Club membership information. Dr. Stoner responded that he would prefer to see her at the office. MKH stated that she appeared at Dr. Stoner's New Castle office in the late afternoon, with Joe Decaria, a fellow sales associate, who remained in the reception area while MKH was taken to an examination room.
There, the receptionist gave MKH a patient history questionnaire to complete. MKH did not fully complete the 19-page questionnaire but, rather, signed incomplete forms. When Dr. Stoner appeared, she informed him that she could not pay for the examination, but he "said that was fine." N.T. 5/9/07, at 86; R.R. 23a.*fn2 Dr. Stoner took a medical history from MKH. When it was completed, he told her to change into a gown, leaving her underwear and socks on, and left the room. Once she was changed, Dr. Stoner returned to do the physical. Before checking her heart and lungs, Dr. Stoner unfastened her bra. He then told her to lie down on the examining table and performed a breast examination. MKH testified that Dr. Stoner's breast examination was different from any other she had previously experienced because it was performed while she was lying down and included her nipples. Dr. Stoner then instructed MKH on how to perform a breast self-examination, which she did.
Dr. Stoner began to palpate her abdomen, prompting MKH to ask to use the restroom; she was accompanied there by Dr. Stoner's assistant. When Claimant returned, the examination resumed. After gloving, Dr. Stoner did a pelvic examination, in the course of which he rubbed her clitoris. N.T. 5/9/07, at 91; R.R. 24a. In response to Dr. Stoner's questions about how "it felt," MKH stated that "it felt fine." N.T. 5/09/07, at 92; R.R. 24a. The pelvic examination took "[m]aybe one to two minutes," according to MKH. Id.
After the pelvic examination, Dr. Stoner checked her reflexes and then examined her back and legs. When he saw the varicose vein on her leg, he said, "Oh, yeah. We can get rid of that baby." N.T. 5/9/07, at 93; R.R. 25a. She further testified that Dr. Stoner sat in a chair to watch her while she performed the range-of-motion test, saying "Okay. Um-hum. Ooh. Aah." Id. at 94; R.R. 25a. MKH testified that she had never heard a professional talk that way before.
MKH left Dr. Stoner's office quickly, telling Dr. Stoner to have his receptionist bill her for the examination. Once in the car, she asked Decaria, "Are pain management doctors supposed to perform vaginal exams?" N.T. 5/9/07, at 96; R.R. 25a. She called her mother and then her sister, who advised her to go to the police. Decaria accompanied MKH to the New Castle Police Department where they were interviewed separately. MKH was examined at a nearby hospital.
On cross-examination, MKH admitted that she did not object to Dr. Stoner about either the breast or pelvic examination. She did not voice an objection to Dr. Stoner's assistant who accompanied her to the restroom. MKH conceded that Dr. Stoner did not make any sexual comments or gestures during either the breast or pelvic examination, although she interpreted his question about "how it felt" to have a sexual overtone. MKH did not observe any signs of sexual arousal on Dr. Stoner's part. MKH confirmed that the police did not follow up with her after she made her complaint and did not charge Dr. Stoner.
Next, the Bureau presented the testimony of Joseph Decaria, by telephone conference. Decaria confirmed that he accompanied MKH to Dr. Stoner's office and recalled MKH explaining that Dr. Stoner was going to look at her rosacea and other skin and vein problems. Decaria testified that the appointment took a long time and that MKH was upset when she returned to the waiting room. She told Decaria "that the doctor did an exam that she never expected and that he touched her in places that she never expected." N.T. 5/9/07, at 12; R.R. 209a. The two consulted MKH's sister, who worked for an attorney. MKH's sister suggested that they go to the police station, and they did so. Decaria conceded that his knowledge of what happened inside the examination room was based entirely on MKH's statements.
Finally, the Bureau presented the testimony of AMS. She testified that she consulted Dr. Stoner in October of 2003 for headaches, at the suggestion of her mother, and was treated with pain injections. AMS stated that she returned to see Dr. Stoner in August 2004, after her automobile accident. According to AMS, Dr. Stoner performed a breast examination at the initial visit in October of 2003, even though she had informed him that she knew how to perform a breast self-examination. AMS testified that the breast examination was unusual because "it didn't seem as if he was applying pressure." N.T. 5/9/07, at 14a; R.R. 39a.
AMS then stated that on one occasion, which she could not identify by month or day, except to say it was a day between August 2004 and February 2005, Dr. Stoner touched her genital area while injecting her buttocks. AMS stated that Dr. Stoner was not wearing gloves at the time he touched her "vaginal area." N.T. 5/9/07, at 154; R.R. 40a. AMS did not report the touching to anyone in her family because her parents respected Dr. Stoner; she feared they would not believe her.
On cross-examination, AMS conceded that she continued to consult Dr. Stoner for treatment after this "touching" incident. She also conceded that Dr. Stoner never made any sexual comments or gestures but was quiet during the examination. AMS acknowledged that she told no one about the touching until one day her attorney, who was representing her with respect to her August 2004 automobile accident, asked if Dr. Stoner had ever touched her inappropriately. AMS's attorney was a member of the law firm representing MKH in her tort claim against Dr. Stoner. AMS testified that she disliked Dr. Stoner's questions about the bruises on her body and whether she was in an abusive relationship with her boyfriend.
In response to the Bureau's case, Dr. Stoner first presented character witnesses, who testified by telephone conference: Dr. Karl Williams and Dr. Gloria Carter. Drs. Williams and Carter, who had each known Dr. Stoner professionally and personally in excess of 15 years, attested to his reputation in the medical community for excellence, both ethically and professionally. Dr. Williams employs Dr. Stoner to cover for his practice when on vacation, and Dr. Carter spoke, specifically, about Dr. Stoner's reputation for honesty. Both testified that Dr. Stoner enjoys a good reputation in the community at large.
Dr. Stoner then presented the testimony of Dr. Hector Pagan, who is board certified in pain management and anesthesiology. Dr. Pagan testified that he has employed Dr. Stoner at his Advanced Pain Management Center since 1997. Dr. Pagan explained that prior to 2003, medical assistants entered and left the examination room as needed. Since the incident with AMS, his office policy provides that medical assistants are present for the duration of all physical exams. Dr. Pagan explained that Dr. Stoner has a longstanding and particular interest in breast pathology because of the fellowship he completed with Dr. Bernard Fisher, a renowned ...