Batty v. Ariz. Med. Bd.

70 Arizona Cases Digest 5

509 P.3d 1053

Trent W. BATTY, Appellant,

v.ARIZONA MEDICAL BOARD, Appellee.

No. 1 CA-CV 21-0021

Court of Appeals of Arizona, Division 1.

FILED May 10, 2022

Mitchell Stein Carey Chapman PC, Phoenix, By Andrew R. Breavington, Stephen W. Myers, Counsel for Appellant

Arizona Attorney General's Office, Phoenix, By Mary DeLaat Williams, Counsel for Appellee

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

BROWN, Judge:

¶1 This appeal arises from the superior court's order affirming the Arizona Medical Board's decision that Dr. Trent Batty committed professional misconduct by engaging in sexual conduct with a patient, in violation of A.R.S. § 32-1401(27)(aa)(ii). Dr. Batty argues the court erred in finding that (1) the statute does not include a specific sexual intent requirement, (2) the statute is not void for vagueness, and (3) the Board's decision is supported by substantial evidence. Because the superior court did not err, we affirm.

BACKGROUND

¶2 Dr. Batty is a board-certified family medicine physician practicing in Arizona. In February 2018, J.L. became a patient of Dr. Batty and was treated for mental health issues. Both of them lived in the same rural town, and Dr. Batty had known J.L. for several years. Soon after treatment began, they quickly developed a friendship, which included frequent text messages and social visits. At the time, J.L. was 22 years old, and Dr. Batty was in his early forties.

¶3 J.L. began to feel troubled by the relationship and confided in his clergyman. On J.L.’s behalf, the clergyman filed a complaint with the Board. In the complaint, and as confirmed in a subsequent interview with the Board, J.L. alleged various instances of inappropriate behavior, including text messages from Dr. Batty that made J.L. uncomfortable.

¶4 In response, Dr. Batty disclosed his and J.L.’s text history. Many of Dr. Batty's texts covered sexual topics and were unrelated to any treatment Dr. Batty was providing. During the Board's investigation, Dr. Batty disclosed an incident with another male patient, C.S., also in his twenties. Similar to his relationship with J.L., Dr. Batty and C.S. developed a social relationship. On one occasion while Dr. Batty and C.S. were traveling together, Dr. Batty noticed that C.S. appeared to have an erection. Dr. Batty then touched C.S.’s penis over the clothes. Dr. Batty later explained this was not sexually motivated and only intended to be a "juvenile prank."

¶5 In July 2018, Dr. Batty submitted to a polygraph examination. He answered "No" to questions about whether he had ever touched a patient for sexual purposes, including specific questions about J.L. and C.S. The test indicated he was truthful. Later that month, Dr. Batty underwent a psychological evaluation, which indicated he was sexually attracted to women, and nothing suggested he suffers from sexual dysfunction or a desire disorder. The evaluator opined that Dr. Batty had blurred professional lines, and "it was possible that there are other issues related to sexuality and intimacy that may have driven some of his behavior." Ultimately, however, the evaluator concluded Dr. Batty "did not engage in any predatory, coercive, or manipulative behavior which exploited his position of authority." The evaluator also noted there was no reason to suspect Dr. Batty could not safely continue to practice medicine, although she recommended Dr. Batty undergo a professional course in recognizing boundaries.

¶6 As ordered by the Board, Dr. Batty had a second evaluation to determine his fitness to practice, conducted by Acumen Assessments. In reviewing the text messages, Acumen determined "the nature of the text messages resembled those between two college students, which would be entirely inappropriate between a doctor and a patient." Acumen opined that Dr. Batty was not a predator, explaining that the evidence revealed "poor professional boundaries and interpersonal judgment rather than sexual misconduct," but also recognized that the Board would ultimately "have to make a ruling regarding the finding of facts in this case." Acumen recommended Dr. Batty enter a "robust Boundary Protection Plan," and in January 2019 he agreed to an interim consent order requiring him to undergo professional boundary training.

¶7 In June 2019, the Board formally interviewed Dr. Batty. See A.R.S. § 32-1451(H) (giving the Board authority to conduct a formal interview if its investigation reveals potential merit). He admitted touching C.S., but explained he "thought it was going to be funny, I was going to kid him about it. You know, hey, looks like you are having too much fun here, ha." He also acknowledged his text messages with J.L. were inappropriate. At the conclusion of the interview, the Board found that Dr. Batty participated in unprofessional conduct in violation of § 32-1401(27)(aa), which prohibits a physician from "[e]ngaging in sexual conduct with a current patient."¹ The discipline imposed included a formal reprimand, probation for two years, and compliance with any additional recommendations resulting from a pending re-evaluation.

¶8 In July 2019, Acumen conducted the re-evaluation, which included another polygraph test. The results showed that Dr. Batty truthfully reported he did not have sexual activity with patients since his first polygraph test. The evaluator opined that the tests indicated Dr. Batty demonstrated "the absence of any sexual misconduct," and he took "full responsibility for all the non-sexual boundary violations in the past with patients."

¶9 In August 2019, the Board issued its written decision memorializing its prior determination that Dr. Batty's actions constituted unprofessional conduct. Dr. Batty filed a motion for rehearing, citing in part his July 2019 re-evaluation by Acumen. The Board denied the motion.

¶10 Dr. Batty appealed to the superior court, asserting in part that the Board's decision was not supported by substantial evidence because the Board's own experts opined that Dr. Batty's behavior was not sexually motivated. Alternatively, he argued § 32-1401(27)(aa) was void for vagueness. In a detailed ruling, the superior court affirmed the Board's decision under the specific subsection § 32-1401(27)(aa)(ii), which defines sexual conduct to include words or actions of a sexual nature. The court explained that "the legislature determined that proper professional boundaries between a doctor and a patient included prohibiting a doctor from engaging in any conduct, either physical or verbal, of a sexual nature regardless of the doctor's lack of a sexual mens rea ." The court also rejected Dr. Batty's vagueness challenge and concluded that substantial evidence supported the Board's decision that he engaged in physical and verbal acts that were plainly sexual in nature, as commonly defined. Dr. Batty timely appealed to this court, and we have jurisdiction under A.R.S. § 12- 2101(A)(1).

DISCUSSION

¶11 The superior court must affirm an agency action unless it is "contrary to law, is not supported by substantial evidence, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(F). The superior court reviews questions of law decided by the agency de novo, "without deference to any previous determination that may have been made on the question by the agency." Id. ; see also Pima Cnty. v. Pima Cnty. Law Enf't Merit Sys. Council , 211 Ariz. 224, 227, ¶ 13, 119 P.3d 1027, 1030 (2005). "We engage in the same process as the superior court when we review its ruling affirming an administrative decision."

Gaveck v. Ariz. State Bd. of Podiatry Exam'rs , 222 Ariz. 433, 436, ¶ 12, 215 P.3d 1114, 1117 (App. 2009).²

A. Sexual Intent/Motivation

¶12 Dr. Batty argues § 32-1401(27)(aa)(ii) must be read to require that a physician act with "sexual intent" before the Board can impose discipline for engaging in conduct of a sexual nature. To determine a statute's meaning, we look first to its text. See State v. Jurden , 239 Ariz. 526, 530, ¶ 15, 373 P.3d 543, 547 (2016). If it is unambiguous, we apply the text as written without employing other methods of statutory interpretation. Id. When construing a particular provision, we consider "the context and related statutes on the same subject." Nicaise v. Sundaram , 245 Ariz. 566, 568, ¶ 11, 432 P.3d 925, 927 (2019).

¶13 The Board has the authority to discipline a physician for "unprofessional conduct," A.R.S. §§ 32-1403(A)(5), 32-1451(A), which includes "[e]ngaging in sexual conduct with a current patient or with a former patient within six months after the last medical consultation," § 32-1401(27)(aa). "[S]exual conduct" is defined by statute to include, among other things, "[m]aking sexual advances, requesting sexual favors or engaging in any other verbal conduct or physical contact of a sexual nature ." § 32-1401(27)(aa)(ii) (emphasis added).

¶14 In affirming the Board's decision, the superior court found that § 32-1401(27)(aa)(ii) "does not require proof that [a physician] acted with a sexual mens rea ." Dr. Batty argues this was error, asserting a common sense and plain reading of § 32-1401(27)(aa)(ii) requires that a physician act with a specific, sexual intent. He contends that "engage" is an action verb, which implies intentionality, and therefore a person cannot "engage" in conduct or contact of a sexual nature without sexual motivation.

¶15 The common definitions of "engage," as applied here, include: "to begin and carry on an enterprise or activity." Engage , Merriam-Webster's Collegiate Dictionary (11th ed. 2014); see State v. Takacs , 169 Ariz. 392, 397–98, 819 P.2d 978, 983–84 (App. 1991) (noting we may look to dictionary definitions to determine a term's meaning). A reasonable construction of the term "engage" in the context of § 32-1401(27)(aa)(ii) means that the physician intended to participate in certain conduct. But nothing in the language of §...