Goad v. Virginia Board of Medicine

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and Agee *
Argued at Richmond, Virginia

STEVEN M. GOAD, M.D.
OPINION BY
v. Record No. 0016-02-2 JUDGE JEAN HARRISON CLEMENTS
MAY 20, 2003
VIRGINIA BOARD OF MEDICINE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge

James J. Knicely (Thomas H. Roberts;
Knicely & Associates, P.C.; Thomas H. Roberts
& Associates, P.C., on briefs), for
appellant.

Evelyn R. Fleming, Special Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Francis S. Ferguson, Deputy Attorney General;
Jane D. Hickey, Senior Assistant Attorney
General and Chief, on brief), for appellee.

Steven M. Goad, M.D., appeals from an order of the circuit

court affirming an order of the Virginia Board of Medicine
(Board) 1 finding him guilty of unprofessional conduct under

* Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
1
For clarity's sake, we use the term "Board" when referring
in this opinion to the Virginia Board of Medicine acting in this
case in its adjudicative capacity and the term "Commonwealth"
when referring to the Virginia Board of Medicine acting in its
prosecutorial capacity.
former Code §§ 54.1-2914(A)(9) and 54.1-2914(A)(13) 2 and imposing

sanctions under Code § 54.1-2915(A)(3). On appeal, Goad contends

the circuit court erred in affirming the Board's order because

(1) the evidence presented by the Commonwealth was insufficient

to support the conclusion that Goad was guilty of unprofessional

conduct under former Code §§ 54.1-2914(A)(9) and

54.1-2914(A)(13), (2) the Board erred in distributing irrelevant

and prejudicial materials to the Board members prior to the

formal hearing, and (3) the Board erred in its conduct of the

formal hearing by "relinquish[ing] control" of the hearing to the

Board's counsel and allowing its counsel to be present in the
3
Board's deliberations. Finding the record lacks substantial

evidence to support the Board's determination that Goad was

guilty of having engaged in unprofessional conduct under former

Code §§ 54.1-2914(A)(9) and 54.1-2914(A)(13), we reverse the

judgment of the circuit court and remand the case. 4

I. BACKGROUND

2
Code § 54.1-2914 having been amended, former Code
§ 54.1-2914(A)(9) is now Code § 54.1-2914(A)(7) and former Code
§ 54.1-2914(A)(13) is now Code § 54.1-2914(A)(11).
3
Goad also contends on appeal that the Board's notice of
hearing and statement of particulars did not give him sufficient
notice of the charges against him. However, having failed to
raise that issue before the Board, he is precluded from raising
it on appeal. See Pence Holdings, Inc. v. Auto Center, Inc., 19
Va. App. 703, 707, 454 S.E.2d 732, 734 (1995) (holding that an
appellant may not raise an issue on appeal from a decision of an
administrative agency that he did not raise before the agency);
Rule 5A:18.
4
In view of this holding, we do not address the remaining
assignments of error.
- 2 -
 The relevant facts in this case are undisputed. Following

his 1991 graduation from the University of Virginia School of

Medicine, Goad was accepted into a residency program in

psychiatry at Virginia Commonwealth University's Medical College

of Virginia. In February 1993, while sharing a call room at the

hospital with a third-year medical student, Goad, who was the

supervising resident in the psychiatry section of the hospital at

the time, asked the medical student if she wanted a backrub.

When the student declined, Goad apologized several times for

having asked her. The student informed her supervisor, Dr.

James Levenson, of the incident, but made it clear she did not

want to file a complaint or get Goad "into trouble." She further

indicated that, while the incident made her uncomfortable, there

was no coercion or sexual contact involved. Goad had no input

with respect to grading or evaluating the medical student's work.
In response to that incident, Levenson and Dr. John Urbach,

the director of residency education at the Medical College of

Virginia, met with Goad. Goad admitted in that meeting that he

knew "almost immediately" after asking the medical student about

the backrub that he had "crossed a boundary with [the] student,"

for which he had "tried to apologize." Cautioning him that such

lack of respect for "professional boundaries" might harm his

professional reputation, Levenson and Urbach gave Goad a copy of

the Virginia Commonwealth University "Sexual Harassment

Guidelines" 5 and encouraged him to pursue personal psychotherapy.

5
As conceded by the Commonwealth at oral argument, neither
these nor any other ethical guidelines associated with the
Medical College of Virginia were ever introduced into the
record.
- 3 -
 Goad was subsequently promoted by Urbach and his colleagues

to the position of chief resident. In April 1994, Goad was

issued a full and unrestricted license to practice medicine in

Virginia.

In June 1994, Urbach learned of another female medical

student who had complained about Goad's behavior. The student

reported that she and Goad, whom she had met at the "V.A.

hospital," initially discussed her concerns about trying to

decide whether to pursue a career in medicine or surgery. Their

ongoing discussions soon shifted to questions about religious and

spiritual matters. Goad, who did not supervise the student,

informed her that "he was not acting as her psychiatrist or . . .

therapist" but was willing to talk with her about her concerns,

in meetings he characterized as "spiritual counseling." Goad and

the student met several times in the following weeks. At some

point, however, the student "suddenly became aware that [Goad]

was sexually interested in her." Feeling "vulnerable and upset"

over Goad's "betrayal," the student reported Goad's interaction

with her to the associate dean for students at the Medical

College of Virginia. The student did not allege any sexual

involvement with Goad and did not file a formal sexual harassment

charge with the Medical College of Virginia.
On July 14, 1994, after meeting with Urbach and Dr. Joel

Silverman, the department of psychiatry chairman, Goad was found

to have engaged in a "pattern of repeated inappropriate

overtures" and was formally suspended from the residency program.

It was noted, however, that "no inappropriate behaviors or

boundary violations toward patients had been identified."
- 4 -
 In August 1994, Goad agreed to participate in a

psychological evaluation. Following that evaluation, his status

in the residency program was upgraded to "probationary." The

terms of the probation required that Goad resign his position as

chief resident, attend regularly scheduled treatment sessions,

and submit to an additional psychological evaluation in the

future. Goad was also warned that "[a]ny further evidence of

inappropriate advances toward medical students or other medical

center/University personnel [would] be considered a violation of

probation and grounds for dismissal."
In the ensuing months, Goad's conduct was "closely

monitored." His "clinical performance," it was noted, "was

reportedly very good" at the time.

However, in April 1995, Silverman received information from

the director of Snowden Psychiatric Hospital regarding Goad's

"inappropriate behavior" toward a staff social worker at that

facility during his on-call weekend. The social worker, who was

employed part-time as the admissions counselor at the hospital,

reportedly stated that she experienced "considerable emotional

distress" when Goad came into her office to speak with her and,

during their conversation, "repeatedly made comments of a

sexually suggestive nature" while simultaneously acknowledging he

would never act on them because "they were both Christians." The

social worker also reported that she "felt embarrassed, angry,

and threatened" by Goad's comments and told the director of the

hospital that she did not want to be assigned to work when Goad

was scheduled to work at the facility. No sexual involvement was

- 5 -
alleged, and Goad did not supervise the social worker. The

social worker never saw or spoke to Goad again.

Meeting with Silverman and Urbach on May 4, 1995, Goad

admitted he had acted inappropriately toward the social worker at

the Snowden facility and that he was "sexually excited" during

his conversation with her. He added, however, that he was

unaware that his comments had made her feel uncomfortable. He

further indicated at a subsequent hearing that his conversation

with the social worker was a philosophical discussion regarding

Christianity and Freudian theory and that his sexually suggestive

remarks were merely an illustrative example of the "conflict

between maintaining fellowship with God . . . and being governed

by the desires of the flesh."
On May 18, 1995, having found Goad had violated his

probation and engaged in "an ongoing pattern of unprofessional

conduct," the department of psychiatry dismissed him from its

residency program. In accordance with procedures set forth by

the Medical College of Virginia, Goad appealed the dismissal.

On June 30, 1995, during a department of psychiatry

committee hearing convened to consider Goad's appeal, Goad

recounted an incident in February 1994 in which he and a female

medical student engaged in fondling, while fully unclothed, in a

call room during an on-call shift at the Medical College of

Virginia. No other evidence regarding this incident was

presented.

Goad's dismissal from the residency program was upheld at

each level of review by the Medical College of Virginia. On

February 27, 1996, following the final review by the dean of the
- 6 -
medical school, the department of psychiatry informed the Board

of Goad's dismissal from the Medical College of Virginia's

residency program.

On October 27, 2000, the Board sent Goad a letter informing

him that the Board would hold an informal conference to consider

whether, based on allegations that he had engaged in

unprofessional conduct under former Code §§ 54.1-2914(A)(9) and

54.1-2914(A)(13), his license should be suspended or revoked

under Code § 54.1-2915(A)(3). 6 The letter alleged, in pertinent

part, as follows:
From approximately February 1993 to June
1994, while a psychiatry resident at the
Medical College of Virginia, Richmond,
Virginia ("MCV"), you engaged in a recurrent
pattern of inappropriate behavior toward
female medical students which represented a
pattern of sexual harassment under MCV's
guidelines, as well as inappropriate use of a
supervisory role during clinical on-call
time.

The letter went on to describe Goad's allegedly inappropriate

interactions with, among others, the social worker and three

medical students discussed above.

On January 26, 2001, the Board held an informal conference.

Following that conference, the Board, citing the incidents

described in the October 27, 2000 letter of notification, found

that Goad had engaged in "inappropriate behavior toward female

medical students which represented a pattern of sexual harassment

6
While the Board's prosecution of Goad more than four and a
half years after receiving notification from the Medical College
of Virginia of Goad's alleged unprofessional conduct is not
precluded by the doctrine of laches or any statute of
limitations, we find the Board's protracted delay in instituting
such proceedings troubling.

- 7 -
under MCV's guidelines, as well as inappropriate use of a

supervisory role during clinical on-call time."

On March 5, 2001, Goad requested a formal administrative

hearing and the Board's order from the informal conference was

vacated. On May 4, 2001, the Board sent Goad a letter notifying

him that the Board would hold a formal administrative hearing to

consider the allegations in the statement of particulars attached

to the letter. The attached statement of particulars stated, in

pertinent part, as follows:
The Board alleges that [Goad] may have
violated [Code §] 54.1-2915(A)(3), as further
defined in [former Code §§ 54.1-2914(A)(9)
and 54.1-2914(A)(13)], in that:

1. From approximately February 1993 to June
1994, while a psychiatry resident at the
Medical College of Virginia, Richmond,
Virginia ("MCV"), Dr. Goad engaged in
inappropriate behavior toward female medical
students which represented a pattern of
sexual harassment under MCV's guidelines, as
well as inappropriate use of a supervisory
role during clinical on-call time.

The statement of particulars went on to describe Goad's allegedly

inappropriate interactions with the social worker and three

medical students discussed above.

On June 7, 2001, the Board held a formal administrative

hearing to determine whether Goad should be sanctioned under Code

§ 54.1-2915(A)(3). As a preliminary matter, the Board permitted

the Commonwealth to introduce into evidence, over Goad's

objection, copies of Section 3.08 of the American Medical

Association's Code of Medical Ethics 7 and Annotation 14 under

7
Section 3.08 of the American Medical Association's Code of
Medical Ethics provides:
- 8 -
Section 4 of the American Psychiatric Association's Principles of

Medical Ethics with Annotations Especially Applicable to

Psychiatry. 8 In response to Goad's claim that the mere admission

Sexual harassment may be defined as
sexual advances, requests for sexual favors,
and other verbal or physical conduct of a
sexual nature when (1) such conduct
interferes with an individual's work or
academic performance or creates an
intimidating, hostile, or offensive work or
academic environment or (2) accepting or
rejecting such conduct affects or may be
perceived to affect employment decisions or
academic evaluations concerning the
individual. Sexual harassment is unethical.
Sexual relationships between medical
supervisors and their medical trainees raise
concerns because of inherent inequalities in
the status and power that medical
supervisors wield in relation to medical
trainees and may adversely affect patient
care. Sexual relationships between a
medical trainee and a supervisor even when
consensual are not acceptable regardless of
the degree of supervision in any given
situation. The supervisory role should be
eliminated if the parties involved wish to
pursue their relationship.
8
Annotation 14 under Section 4 of the American Psychiatric
Association's Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry provides:

14. Sexual involvement between a
faculty member or supervisor and a trainee
or student, in those situations in which an
abuse of power can occur, often takes
advantage of inequalities in the working
relationship and may be unethical because
(a) any treatment of a patient being
supervised may be deleteriously affected;
(b) it may damage the trust relationship
between teacher and student; and (c)
teachers are important professional role
- 9 -
of the two documents did not constitute the establishment of a

standard of ethics that was binding on Virginia doctors, the

presiding member of the Board agreed, saying, "We're just

accepting them as exhibits." The assistant attorney general

representing the Commonwealth added, "The Commonwealth would

assert that the respondent is free to provide any other ethical

codes that he believes his conduct is in conformity with and this

is merely something for the Board to look to for ethical

guidelines and use as a comparison." Goad's attorney responded,

"Of course, . . . the burden is not upon Dr. Goad to provide

such. It's upon the state to show that he has violated the laws

of Virginia as set forth in the [Statement] of Particulars

against him."
At the formal administrative hearing, no witness called by

the Commonwealth testified about the American Medical

Association's Code of Medical Ethics or the American Psychiatric

Association's Principles of Medical Ethics with Annotations

Especially Applicable to Psychiatry or the two specific sections

of those respective sets of ethical guidelines introduced by the

Commonwealth. Nor did the Commonwealth present any other

evidence regarding those guidelines. Similarly, the Commonwealth

introduced no evidence regarding the standards set forth in the

Medical College of Virginia's "guidelines" referenced in the

statement of particulars or any other evidence regarding the

governing ethical standard referenced in former Code

§ 54.1-2914(A)(9).

models for their trainees and affect their
trainees' professional behavior.
- 10 -
 When, later in the hearing, Goad's attorney attempted to ask

Urbach if the Medical College of Virginia disciplinary committee

that reviewed Goad's conduct was in compliance with Section 9.05

of the American Medical Association's Code of Medical Ethics, 9

the presiding member of the Board disallowed such questioning,

ruling that Section 9.05 of the American Medical Association's

Code of Medical Ethics "is not a statute" but "a recommendation."

Goad then moved to have the previously admitted excerpts from the

American Medical Association's Code of Medical Ethics and the

American Psychiatric Association's Principles of Medical Ethics

with Annotations Especially Applicable to Psychiatry stricken

from the record "based on [the Board's] ruling." The Board

denied the request. Clarifying his earlier ruling regarding

9
Section 9.05 of the American Medical Association's Code of
Medical Ethics provides, in substantial part:

The basic principles of a fair and
objective hearing should always be accorded
to the physician or medical student whose
professional conduct is being reviewed. The
fundamental aspects of a fair hearing are a
listing of specific charges, adequate notice
of the right of a hearing, the opportunity
to be present and to rebut the evidence, and
the opportunity to present a defense. These
principles apply when the hearing body is a
medical society tribunal, medical staff
committee, or other similar body composed of
peers. The composition of committees
sitting in judgment of medical students,
residents, or fellows should include a
significant number of persons at a similar
level of training.
These principles of fair play apply in
all disciplinary hearings and in any other
type of hearing in which the reputation,
professional status, or livelihood of the

- 11 -
Section 9.05 of the American Medical Association's Code of

Medical Ethics, the presiding Board member added:

The ruling I'm making is the composition
of the committee and so forth is a different
issue from the medical ethics and other
recommendations by the [American Medical
Association] and it does not relate to the
fundamental ethics of medicine.

Upon conclusion of the Commonwealth's evidence, Goad moved

to strike the case, contending, among other things, that the

evidence presented by the Commonwealth was insufficient to find

him "guilty of professional misconduct as . . . charged in the

statement of particulars" because no ethical standard had been

established and there was no showing in the cited incidents of

any (1) sexual involvement, (2) supervisor-trainee relationship,

or (3) harm to the public. The Board, finding that "the evidence

demonstrated that Dr. Goad on at least four occasions acted in

violation of medical ethics, specifically Section [4]-14 of the

Principles of Medical Ethics [with Annotations Especially

Applicable to Psychiatry] regarding sexual involvement with a

student," denied Goad's motion to strike.
Goad subsequently attempted to introduce into evidence the

affidavits of two doctors, one purportedly an "expert in the

field of medical ethics" and the other "in the field of

medicine." Both doctors stated in their affidavits that the

American Medical Association's Code of Medical Ethics was not

binding on doctors practicing in Virginia. The assistant

attorney general representing the Commonwealth argued that the

affidavits were inadmissible because (1) one must "be voir dired

physician or medical student may be
- 12 -
and qualify as an expert before the Board," (2) the legal

opinions of a doctor are irrelevant in the case, and (3)

the ethics presented in this case are not the
issue; Dr. Goad's behavior is the issue. The
ethics are merely guideline principles that
we're basing our action upon. The Board is
certainly free to use its own standards and
the respondent is free to submit other
ethical standards.

The Board refused to admit the affidavits "for the reasons stated

by" the assistant attorney general representing the Commonwealth.

Goad presented no further evidence.
Following deliberations, the Board found Goad guilty of

having engaged in unprofessional conduct in violation of Code

§ 54.1-2915(A)(3), as further defined in former Code

§§ 54.1-2914(A)(9) and 54.1-2914(A)(13). In reaching that

decision, the Board recited as findings of fact the incidents

described in the statement of particulars and specifically found

that Goad had engaged in "inappropriate behavior toward female

medical students which represented a pattern of sexual harassment

under MCV's guidelines, as well as inappropriate use of a

supervisory role during clinical on-call time." The Board's

ruling made no mention of the American Medical Association's Code

of Medical Ethics or the American Psychiatric Association's

Principles of Medical Ethics with Annotations Especially

Applicable to Psychiatry.

Based on its findings, the Board ordered that Goad's license

to practice medicine and surgery in Virginia "be placed on

indefinite probation" until certain specified conditions were

met. The Board entered an order reflecting its findings of fact

negatively impacted.
- 13 -
and conclusions of law on June 11, 2001. Like the Board's

rulings at the hearing, that order lacked any reference to the

American Medical Association's Code of Medical Ethics or the

American Psychiatric Association's Principles of Medical Ethics

with Annotations Especially Applicable to Psychiatry.

Goad subsequently appealed the Board's decision to the

circuit court. Finding no error of law, the court affirmed the

Board's decision. This appeal followed.

II. ANALYSIS
On appeal, Goad contends the evidence presented by the

Commonwealth at the formal administrative hearing was

insufficient to support the Board's determination that he was

guilty of having engaged in unprofessional conduct under former

Code §§ 54.1-2914(A)(9) and 54.1-2914(A)(13). Specifically, he

argues the evidence was insufficient to establish either an

ethical standard by which his conduct could be adjudicated under

former Code § 54.1-2914(A)(9) or a violation of any ethical

standard under that statute. He further argues that the evidence

was insufficient to establish that he performed "any act likely

to deceive, defraud or harm the public" under former Code

§ 54.1-2914(A)(13).

Code § 54.1-2915(A)(3) authorizes the Board to suspend or

revoke a doctor's license to practice medicine and surgery in

Virginia if that doctor engages in "[u]nprofessional conduct."

Hearings conducted by the Board to determine whether to revoke or

suspend a doctor's license under Code § 54.1-2915(A)(3) are

subject to the provisions of the Virginia Administrative Process

Act. See Code § 54.1-2920.
- 14 -
 Accordingly, in reviewing a decision of the Board to suspend

or revoke a doctor's license pursuant to Code § 54.1-2915(A)(3),

we are limited "with respect to issues of fact . . . to

ascertaining whether there was substantial evidence in the

[Board] record upon which the [Board] as the trier of the facts

could reasonably find them to be as it did." Code § 2.2-4027;

see also Virginia Real Estate Comm'n v. Bias, 226 Va. 264,

268-69, 308 S.E.2d 123, 125 (1983). In Bias, the Supreme Court

stated:
The "substantial evidence" standard,
adopted by the General Assembly, is designed
to give great stability and finality to the
fact-findings of an administrative agency.
The phrase "substantial evidence" refers to
"such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion." Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938) (emphasis
added). Under this standard, . . . the court
may reject the agency's findings of fact
"only if, considering the record as a whole,
a reasonable mind would necessarily come to a
different conclusion." B. Mezines,
Administrative Law § 51.01 (1981) (emphasis
in original).

226 Va. at 269, 308 S.E.2d at 125. "[T]he substantial evidence

standard accords great deference to the findings of the

administrative agency, but even under this standard the evidence

must be relevant to the conclusion reached." Atkinson v.

Virginia Alcohol Beverage Control Comm'n, 1 Va. App. 172, 178,

336 S.E.2d 527, 531 (1985).

Additionally, in accordance with familiar principles of

appellate review, "we review the facts in the light most

favorable to sustaining the Board's action," id. at 176, 336

S.E.2d at 530, and "take due account of the presumption of

- 15 -
official regularity, the experience and specialized competence of

the agency, and the purposes of the basic law under which the

agency has acted," Code § 2.2-4027.

In this case, Goad was charged with having engaged in

unprofessional conduct under former Code §§ 54.1-2914(A)(9) and

54.1-2914(A)(13). Former Code § 54.1-2914(A)(9) provides:

Any practitioner of the healing arts
regulated by the Board shall be considered
guilty of unprofessional conduct if he:

* * * * * * *
9. Conducts his practice in such a
manner contrary to the standards of ethics of
his branch of the healing arts[.]

In seeking to have the Board suspend or revoke Goad's

license, the Commonwealth had the burden to prove his guilt. 10

See former Code § 9-6.14:12(C) (now Code § 2.2-4020(C)). Hence,

for the Board to find Goad guilty of unprofessional conduct under

former Code § 54.1-2914(A)(9), the Commonwealth had to establish

three things: first, the applicable "standards of ethics of

[Goad's] branch of the healing arts" by which his conduct was to

be adjudicated under the statute; second, the specific ethical

standard Goad was alleged to have violated; and, third, Goad's

violation of that standard.

To that end, the Commonwealth introduced into the record, as

exhibits, copies of Section 3.08 of the American Medical

10
As neither party raised before the Board or on appeal the
question of what burden of proof should be applied in this case,
that issue is not before us. Because the statutes at issue here
are silent regarding the applicable standard of proof, we
assume, without deciding, for purposes of this appeal that the
evidentiary burden of proof to be applied is a preponderance of
the evidence.

- 16 -
Association's Code of Medical Ethics and Annotation 14 under

Section 4 of the American Psychiatric Association's Principles of

Medical Ethics with Annotations Especially Applicable to

Psychiatry. The Commonwealth concedes on appeal, however, that

the Board has promulgated no regulation establishing the American

Medical Association's Code of Medical Ethics, the American

Psychiatric Association's Principles of Medical Ethics with

Annotations Especially Applicable to Psychiatry, or any other set

of ethical standards as the applicable "standards of ethics of

[Goad's] branch of the healing arts" under former Code

§ 54.1-2914(A)(9).
Moreover, the Commonwealth presented no evidence or

rationale at the hearing demonstrating that the standards it

introduced or any other standards were applicable to Goad in this

case. Indeed, to the contrary, upon introducing Section 3.08 of

the American Medical Association's Code of Medical Ethics and

Annotation 14 under Section 4 of the American Psychiatric

Association's Principles of Medical Ethics with Annotations

Especially Applicable to Psychiatry, the assistant attorney

general representing the Commonwealth insisted that Goad could

introduce his own ethical standards and that the ethical

standards set forth in the Commonwealth's exhibits were "merely

something for the Board to look to for ethical guidelines and use

as a comparison." Later, the assistant attorney general

representing the Commonwealth stated:

[T]he ethics presented in this case are not
the issue; Dr. Goad's behavior is the issue.
The ethics are merely guideline principles

- 17 -
 that we're basing our action upon. The Board
is certainly free to use its own standards
and the respondent is free to submit other
ethical standards.

For its part, the Board acknowledged, after admitting the

two ethical standards presented by the Commonwealth into

evidence, that the admission of those exhibits alone was

insufficient to establish a standard of ethics by which Goad's

conduct could be judged. The Board later appeared to rule, in

prohibiting Goad's cross-examination of a witness on a section of

the American Medical Association's Code of Medical Ethics

unrelated to the instant prosecution, that the American Medical

Association's Code of Medical Ethics was merely "a

recommendation" and, thus, not binding in the case.
Furthermore, in finding Goad guilty of having engaged in

unprofessional conduct under former Code § 54.1-2914(A)(9), the

Board made a number of findings of fact regarding Goad's conduct

but drew no connection between that conduct and Section 3.08 of

the American Medical Association's Code of Medical Ethics or

Annotation 14 under Section 4 of the American Psychiatric

Association's Principles of Medical Ethics with Annotations

Especially Applicable to Psychiatry. Indeed, the Board's only

reference in its order to any possible standards of ethics

appears in its finding that Goad engaged in "inappropriate

behavior toward female medical students which represented a

pattern of sexual harassment under [the Medical College of

Virginia's] guidelines." Those guidelines, however, are not

included in the record. Nor is there anything in the record that

describes those standards or even remotely suggests they

- 18 -
constitute a "standard of ethics of [Goad's] branch of the

healing arts," as required by former Code § 54.1-2914(A)(9).

Because no evidence was presented establishing the

"standards of ethics of [Goad's] branch of the healing arts" by

which his conduct was to be adjudicated under former Code

§ 54.1-2914(A)(9), we find there is not substantial evidence in

the record upon which the Board could reasonably find that Goad

"conducted his practice in a manner contrary to the standards of

ethics of his branch of the healing arts," in violation of former

Code § 54.1-2914(A)(9).
The Board also found Goad engaged in unprofessional conduct

under former Code § 54.1-2914(A)(13). Former Code

§ 54.1-2914(A)(13) provides:

Any practitioner of the healing arts
regulated by the Board shall be considered
guilty of unprofessional conduct if he:

* * * * * * *

13. Performs any act likely to deceive,
defraud or harm the public[.]

There is no evidence in the record that demonstrates, absent

reliance on speculation and pure conjecture, that Goad performed

any act likely to deceive, defraud, or harm the public. Indeed,

nothing in the record shows that Goad's interactions with the

social worker and three medical students interfered with or was

likely to interfere with his ability to provide care to his

patients. Likewise, the record is devoid of evidence showing

that Goad's conduct interfered with or was likely to interfere

with the ability of the social worker and medical students to

perform their duties at work or school or otherwise prevent them

- 19 -
from providing suitable care to patients and other members of the

public with whom they dealt. Nor, contrary to the Commonwealth's

assertions, did the Board make any such findings. 11 We find,

therefore, that there is not substantial evidence in the record

upon which the Board could reasonably find that Goad

"[p]erform[ed] any act likely to deceive, defraud or harm the

public," in violation of former Code § 54.1-2914(A)(13).

In conclusion, having found there was not substantial

evidence in the record to support the Board's findings that Goad

was guilty of having engaged in unprofessional conduct under

former Code §§ 54.1-2914(A)(9) and 54.1-2914(A)(13), we reverse

11
The Commonwealth contends in its appellate brief as
follows:

[T]he Board reasonably concluded that
Goad's behaviors were harmful to the medical
students and his co-worker at the psychiatric
hospital. Further, the Board determined that
the behaviors could have resulted in harm to
patients due to the disruption of the work
routine because the individuals were
unwilling to work with Goad following his
inappropriate behavior. Additionally, the
Board appropriately found the behaviors
occurring in a call room while Goad was
on-call for emergency room services could
have been harmful to patients who would have
had to wait for Goad to refocus his attention
from his sexual arousal to his medical work
and resume the concentration necessary to
provide safe patient care.

Nothing in the record, however, shows that the Board ever
reached or made such "conclusions," "determinations," or
"findings." Hence, we find the Commonwealth's inclusion in its
brief of the foregoing representations troubling.
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the circuit court's judgment affirming the Board's imposition of

sanctions against Goad under Code § 54.1-2915(A)(3).

Accordingly, we remand this case to the circuit court with

instructions to set aside the Board's June 11, 2001 order placing

Goad's license to practice medicine and surgery in Virginia "on

indefinite probation" and to remand the matter to the Board for

such further proceedings as may be requisite, consistent with

this opinion.

Reversed and remanded.

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