dissenting
I would affirm the decision of the Board of Medicine to revoke Dr. Fetta’s license. In my opinion, by failing to voice at the July deliberative session any objection to what the majority terms “the flawed procedure employed by the Board,” Fetta waived any objection he may have had to that procedure.
It was at the deliberative session that Fetta’s fate would be determined, and that was the crucial time and place for him to challenge the procedure and request the disqualification of the board members who had participated in the allegedly improper questioning of witnesses at the administrative hearing. The hearing officer had no authority to disqualify members of the board from participating in the deliberative session; only the board itself possessed that authority. Code § 54.1-110(B).
Yet, through some nineteen appendix pages of oral argument at the deliberative session, Fetta’s counsel did not once criticize the proceedings before the hearing officer or even mention the fact that some of the board members had participated in questioning witnesses. And Fetta’s counsel certainly did not seek at the deliberative session to have any of the board members disqualified for their alleged misconduct at the administrative hearing. Indeed, the record *284of the deliberative session is astonishingly silent with respect to anything that occurred at the earlier hearing.
Furthermore, I think it is unsatisfactory to say, as the majority says, that Fetta was relieved from voicing any objection at the deliberative session because ‘ ‘the applicable statute does not require the party who is the target of the proceeding to present oral argument before the Board, or to even appear at the full Board hearing.” No statute requires the appearance of a party at the hearing of any civil case, but a party stays away at the certain peril that the contemporaneous objection rule will be invoked against him if he later tries to protest something that occurred at the hearing.
However, Fetta did appear at the deliberative session, he did present argument, and, by failing to mention the procedural defects or seek the disqualification of any board member, lulled the board into believing he did not intend to rely upon the defects. Rather than raise the procedural defects, Fetta chose to employ the tactical maneuver of attacking the credibility of the adverse witnesses and making a “golden rule” argument. He told the board members:
[T]he decision that you make is also going to affect you, because it is going to affect your practice, and I am asking you to protect [Fetta] and to protect yourselves .... [I]f you are going to buy [the testimony of one of the witnesses that Fetta] did vaginal stimulation of her for five hours, think about it. . . if you can buy that then nobody is safe. . . .
Fetta held back at the deliberative session, remained silent on the subject of procedural defects, and then, after his tactical maneuver failed, resurrected the defects in the circuit court. The contemporaneous objection rule is designed to prohibit just such a practice. I would apply Rule 5:25 of the Rules of this Court to prohibit Fetta from benefitting from such a practice here. To do otherwise would effectively erase the rule from the books.