Batty v. Ariz. Med. Bd. – 5/10/2022

May 19, 2022

Arizona Court of Appeals Division One holds that a doctor’s intentional conduct with a patient may constitute unprofessional conduct if the conduct is of a sexual nature, even if the conduct is not sexually motivated.

After receiving a complaint, the Arizona Medical Board investigated a doctor for inappropriate conduct with a patient.  The investigation showed that the doctor had discussed (via text) sexual topics unrelated to the patient’s treatment.  The investigation also revealed that, while traveling with a different patient, the doctor had touched that patient’s genitals.  The doctor denied that this conduct was sexually motivated, an assertion that was generally backed up by a polygraph test and psychological evaluations.

The Board found that the doctor’s actions constituted unprofessional conduct under A.R.S. § 32-1401(27)(aa), which prohibits sexual conduct with a patient.  The doctor appealed the decision to superior court, arguing that the statute required the conduct at issue be sexually motivated and there was no evidence that doctor’s actions were sexually motivated.  Alternatively, the doctor argued that, if § 32-1401(27)(aa) has no specific intent requirement, it was void for vagueness, and that the Board’s conclusion was not supported by substantial evidence because all of the examinations found that the doctor’s actions were not sexually motivated.  The superior court rejected the doctor’s arguments and upheld the Board’s decision.

On appeal to the Arizona Court of Appeals, the doctor raised the same arguments.  The Court rejected all three and affirmed the superior court.  The court held that § 32-1401(27)(aa) did not require specific intent.  Nothing in the language of that statute required that the conduct at issue be sexually motivated, just that the conduct be of a “sexual nature.”  Moreover, other parts of § 32-1401 did impose a specific intent requirement, and the legislature’s choice to not include such a requirement in (27)(aa) was further evidence that no specific intent was required.

The Court similarly rejected the doctor’s vagueness argument.  The doctor argued that if (27)(aa) did not have a specific intent requirement, a reasonable person could not discern what conduct was prohibited.  But because the Court had already found that the plain language of the statute applied to intentional, but not necessarily sexually motivated, conduct, there was no concern that enforcement of the statute would turn on questions of what motivated the conduct or how it was perceived.

Finally, the Court found that the Board’s decision was supported by substantial evidence.  The Court rejected the doctor’s argument that an administrative agency can act arbitrarily or capriciously even if its decision was supported by substantial evidence because there is a long line of Arizona cases rejecting that exact argument.

Judge Brown authored the opinion for the Court, joined by Judges Howe and Furuya.