On Wednesday, June 12, 2013, Lance Everett Wyatt, M.D. was acquitted of six misdemeanor charges following a 10 week jury trial. Dr. Wyatt took the case to trial and prevailed on all counts so kudos to him in fighting these allegations. The jury found that there was no intentional secret recording of patients and returned "not guilty" verdicts on all six counts.
The investigating agency was the Medical Board of California’s Operation Safe Medicine. The case was prosecuted by the Los Angeles City Attorney's Office. The investigation began in August 2011, the case was filed in August 2012 and it has taken another year to take the criminal case to trial and obtain acquittals.
This case arose because there were allegations that on August 4, 2011, Dr. Wyatt made secret video recordings of two patients who were seeing the doctor for post-surgical care and were undressed. It is alleged that one of the patients discovered a camera in the office, fled with the camera and turned it over to the police. The investigation in this case appears to have been one that was not thorough and relied heavily on the statements of this one patient.
Dr. Wyatt, who testified at trial for 9 days, stated that one patient had consented to be recorded and that the camera turned on accidentally and inadvertently recorded the other patient but that it was a mistake and not intentional. In addition, a medical expert witness provided testimony supporting Dr. Wyatt's examinations.
The investigating agency was the Medical Board of California’s Operation Safe Medicine. The case was prosecuted by the Los Angeles City Attorney's Office. The investigation began in August 2011, the case was filed in August 2012 and it has taken another year to take the criminal case to trial and obtain acquittals.
This case arose because there were allegations that on August 4, 2011, Dr. Wyatt made secret video recordings of two patients who were seeing the doctor for post-surgical care and were undressed. It is alleged that one of the patients discovered a camera in the office, fled with the camera and turned it over to the police. The investigation in this case appears to have been one that was not thorough and relied heavily on the statements of this one patient.
Dr. Wyatt, who testified at trial for 9 days, stated that one patient had consented to be recorded and that the camera turned on accidentally and inadvertently recorded the other patient but that it was a mistake and not intentional. In addition, a medical expert witness provided testimony supporting Dr. Wyatt's examinations.
The charges on which acquittals were obtained were: two counts of Penal Code (PC) 647(j)(3)(1)(the unlawful filming of
another); two counts of PC 647 (j) (1) (unlawful viewing of
another); one count of PC section 243.4(c) (sexual battery on a
patient); and one count of PC 242 (unlawful use of force and violence -battery)
on another. This case appears to have been overcharged since the battery counts are unusual in alleging an improper touching and for allegedly based on taking too long with an exam.
The Medical Board should now do the right thing and terminate its investigation of Dr. Wyatt based on these allegations. However, since there is a different burden of proof in administrative hearings, the Medical Board has not reported how it will proceed. For some reason, even more than two months later, the restriction on practice that was issued by the judge in the criminal case requiring Dr. Wyatt to have a third party present when examining, consulting, photographing or videotaping a patient is still in place according to the Medical Board. This should be modified or deemed to be not in place given the result in the criminal case. However, the Board can take administrative action on its own even after an acquittal given that there is a lower burden of proof. We will see how the Medical Board proceeds.
One of the difficult things about sexual allegations with physicians is that the Medical Board tends to assume the patients are telling the truth even if there are great inconsistencies or credibility issues and prefer the cases go to administrative hearing so an administrative law judge can make those determinations. It seems this same approach was handled in the criminal case which is why the case went to trial on an apparently weak case. The jury took less than 5 hours to come back with not guilty verdicts after a 10 week trial.
This type of case based on weak allegations is a clear reminder why we recommend that physicians someone else present during physical exams that involve disrobing and have that person mark the medical chart so the physical presence can be documented. Although it is an extra cost, it can pay for itself given that anyone can make a false allegation and then there is a "he said/she said" situation. We have represented numerous physicians who were falsely accused of improper physical contact or making inappropriate sexual comments that could have been resolved easily if there had been a medical assistant in the room the entire time.
The Medical Board should now do the right thing and terminate its investigation of Dr. Wyatt based on these allegations. However, since there is a different burden of proof in administrative hearings, the Medical Board has not reported how it will proceed. For some reason, even more than two months later, the restriction on practice that was issued by the judge in the criminal case requiring Dr. Wyatt to have a third party present when examining, consulting, photographing or videotaping a patient is still in place according to the Medical Board. This should be modified or deemed to be not in place given the result in the criminal case. However, the Board can take administrative action on its own even after an acquittal given that there is a lower burden of proof. We will see how the Medical Board proceeds.
One of the difficult things about sexual allegations with physicians is that the Medical Board tends to assume the patients are telling the truth even if there are great inconsistencies or credibility issues and prefer the cases go to administrative hearing so an administrative law judge can make those determinations. It seems this same approach was handled in the criminal case which is why the case went to trial on an apparently weak case. The jury took less than 5 hours to come back with not guilty verdicts after a 10 week trial.
This type of case based on weak allegations is a clear reminder why we recommend that physicians someone else present during physical exams that involve disrobing and have that person mark the medical chart so the physical presence can be documented. Although it is an extra cost, it can pay for itself given that anyone can make a false allegation and then there is a "he said/she said" situation. We have represented numerous physicians who were falsely accused of improper physical contact or making inappropriate sexual comments that could have been resolved easily if there had been a medical assistant in the room the entire time.
Posted by Tracy Green, Esq. Please email Ms. Green, a
very experienced health care attorney at tgreen@greenassoc.com or call her
at 213-233-2260 to schedule a complimentary 30-minute consultation.
The
firm focuses its practice on the representation of licensed professionals,
individuals and businesses in civil, business, administrative and criminal
proceedings. They have a specialty in representing licensed health care
providers in California and throughout the country.
