VIRGINIA: BEFORE THE DEPARTNIENT OF HEALTH PROFESSIONS IN RE: RUSSEL JOHN AUBIN, D.O. License No.: 0102-050036 ORDER In accordance with Section 54.1?2409 of the Code of Virginia (1950), as amended, I, Robert A. Nebiker, Director of the Virginia Department of Health Professions, received and acted upon evidence that the license of Russel John Aubin, D.O., to practice osteopathic medicine in the State of Rhode Island was suspended by Order of Summary Suspension entered January 11, 2005. A certi?ed copy of the Order of Summary Suspension is attached to this Order and is marked as Commonwealth's Exhibit No. 1. WHEREFORE, by the authority vested in the Director of the Department of Health Professions pursuant to Section 54.1-2409 of the Code, it is hereby ORDERED that-the license of Russel John Aubin, D.O., to practice osteopathic medicine in the Commonwealth of Virginia be, and hereby is, SUSPENDED. Upon entry of this Order, the license of Russel John Aubin, D.O., will be recorded as suspended and no longer current. Should Dr. Aubin seek reinstatement of his license pursuant to Section 54.1-2409 of the Code, he shall be responsible for any fees that may be required for the reinstatement and renewal of his license prior to issuance of his license to resume practice. Pursuant to Sections 22-4023 and 54.1-2400.2 of the Code, the signed original of this Order shall remain in the custody of the Department of Health Professions as a public record and shall be made available for public inspection and copying upon request. Robert A. Nebiker, Director Department of Health Professions ENTERED: "esp 32%;551g. H5, z?r COMMONWEALTH of VIRGINIA Department OfHeaZth Professions 6603 West Broad Street, 5th Floor Richmond, Virginia 23230-1712 Robert A. Nebiker Director CERTIFICATION OF DUPLICATE RECORDS TEL (804) 662-9900 FAX (804) 662-9943 TDD (804) 662-719? I, Robert A. Nebiker, Director of the Department of Health Professions, hereby certify that the attached Order of Summary SuSpension entered January 11, 2005, regarding Russel John Aubin, D.O., are true copies of the records received from the State of Rhode Island Department of Health, Board of Medical Licensure and Discipline. Vanilla Robert A. Nebiker Date: 2, 2063/ Board of Audiology 8. Speech - Language Pathology - Board of Dentistry - Board of Funeral Directors 8- Embatmers - Board of Medicine - Board of NUrsing Board of Nursing Home Administrators - Board of Optometry - Board of Pharmacy - Board of Counseling Board of Physical Therapy - Board of - Board of Social Work - Board of Veterinary Medicine Board of Health Professions STATE OF RHODE ISLAND DEPARTMENT OF HEALTH BOARD OF MEDICAL LICENSURE AND DISCIPLINE In the matter of: Russel J. Aubin, D.O. License DO 00522 Case: C04- 904 SUMMARY SUSPENSION The Board of Medical Licensure and Discipline (hereinafter ?Board?) received noti?cation that indicated that Russel J. Aubin D.O. (hereinafter referred to as the ?Re5pondent") was su5pended from the Medical staff of Kent Hospital on December 29, 2004 pending investigation into allegations that he molested a female patient in violation of ofthe R.I. General Laws, 1956, as amended. FINDING OF FACTS 1. Respondent is a physician licensed to practice in Rhode Island since October 2000. He is a 1991 graduate ofthe New England College of OsteOpathic Medicine and is Board Certi?ed in Anesthesiology and Physical and Rehabilitative Medicine. 2. Respondent is an anesthesiologist on staff at Kent Hospital. He holds active medical licenses in Rhode Island, Massachusetts and Virginia; and an inactive medical license in Tennessee. 3. On December 29, 2004 the Board received written noti?cation that the Respondent was suspended from the medical staff pending an investigation into allegations that he molested a 21 year-old female patient while she was undergoing knee surgery to repair a soccer injury to her left knee. EXHIBIT 2' z. 4. Dr. Aubin previously violated professional boundaries by asking a female patient out for a date and asking a hospital employee to View pornography with him in the hospital. ORDER After considering the ?ndings of the investigations performed at the hospital and by the Board of Medical Licensure and Discipline regarding Dr. Aubin it has been determined that the continuation in practice of medicine of Russel J. Aubin, D.O. would constitute an immediate danger to the public. Accordingly, Russel I. Aubin, DC. is suspended from practicing medicine until further Order of the Department of Health. The Respondent is entitled to a hearing pursuant to the provisions of R.I.G.L. 5-37?8 within 10 days ofthe effective date below. Signed this HW?day of ,2005. venetian 4. Patricia A. Nolan, MD, MPH Director of Health STATE OF RHODE ISLAND DEPARTMENT OF HEALTH BOARD OF MEDICAL LICENSURE AND DISCIPLINE In the matter of: Russel J. Aubin, D.0. License DO 00522 Case; 904 SUSPENSION The Board of Medical Licensure and Discipline (hereinafter ?Board?) received noti?cation that indicated that Russel J. Aubin D.O. (hereinafter referred to as the ?Respondent?) was suspended from the Medical staff of Kent Hospital on December 29, 2004 pending investigation into allegations that he molested a female patient in violation of 5-37-5.l of the R.I. General Laws, 1956, as amended. FINDING FACTS 1. Respondent is a physician licensed to practice in Rhode Island since October 2000. He is a 1991 graduate of the New England College of Osteopathic Medicine and is Board Certi?edin Anesthesiology and Physical and Rehabilitative Medicine. 2. i Respondent is an anesthesiologist on staff at Kent Hospital. He holds active medical licenses in Rhode Island, Massachusetts and Virginia; and an inactive medical license in Tennessee. 3. On December 29, 2004 the Board received written noti?cation that the Respondent was suspended from the medical staff pending an investigation into allegations that he molested a 21 year-old female patient while she was undergoing knee surgery to repair a soccer injury to her left knee. 4. Dr. Aubin previously violated professional boundaries by asking a female patient out for a date and asking a hospital employee to View pornography with him in the hOSpital. ORDER After considering the ?ndings of the investigations performed at the hospital and by the Board of Medical Licensure and Discipline regarding Dr. Aubin it has been determined that the continuation in practice of medicine of Russel J. Aubin, D.O. would constitute an immediate danger to the public. Accordingly, Russel J. Aubin, DD. is suSpended from practicing medicine until further Order of the Department of Health. The Respondent is entitled to a hearing pursuant to the provisions of R.I.G.L. 5-37-8 within 10 days of the effective date below. Signed this day of 2005. cp?gmga 4. Ema rowel Patricia A. Nolan, MD, MPH Director of Health Filed January 9, 2007 STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, PROVIDENCE, SC. SUPERIOR COURT RUSSEL J. AUBIN, D.O., Appellant v. CA. No.: 05-6645 DAVID R. GIFFORD, M.D., M.P.H., in his capacity as Director of the Rhode Island Department of Health, and the RHODE ISLAND DEPARTMENT OF HEALTH, Appellees DECISION . INDEGLIA, J. Russel J. Aubin, D.O. (?Appellant?) appeals ?'om a decision of the Rhode Island Board of Medical Licensure and Discipline (?Board?) revoking his license to practice medicine in this state due to unprofessional conduct in violation of G.L. 1956 5-37-5.l. The Appellant seeks to have the Board?s decision reversed and his license to practice reinstated. This Court has jurisdiction over this administrative appeal pursuant to G.L. 1956 42-35-15. FACTS AND TRAVEL On December 29, 2004, the Board received notice that Kent County Hospital in Warwick, Rhode Island, had suspended the Appellant, a doctor of osteopathy and a practicing anesthesiologist, from its mediCal staff following an investigation into allegations that the Appellant had sexually molested a patient?a twenty-one-year-old female college student undergoing knee reconstruction surgery (?Patient (Tr. 2/18/05 at 70.) The Appellant had provided anesthesia during her operation on December 23, 2004. (Tr. 2/ 18/05 at 70.) After a preliminary investigation pursuant to see. 5-37-8, the Rhode Island Director of Health issued an order summarily suspending appellant?s license to practice medicine in this state, effective January 11, 2005.1 As required by statute, the Appellant received a hearing to appeal the Director?s decision. The hearing commenced on February 18, 2005 and continued over a total of twelve sessions held on various dates over the next six months. The ?nal evidentiary session of the hearing occurred on August 17, 2005. Testimony of Patient A Patient A ?rst encountered the Appellant in the preoperative anesthesia unit on the morning of the actual surgical procedure. During their meeting, Patient A elected to receive a spinal anesthetic, which would leave her conscious during surgery. (Tr. 2/ 18/05 at 78-79.) Although the Administrative Decision notes that Patient A ?chose to receive a spinal anesthetic so she would remain awake during the procedure? (Administrative Decision at 3), the record indicates that Patient A did not choose the spinal anesthetic because of any particular preference to stay conscious for her surgery. (Tr. 2/ 18/05 at 103.) Hospital staff moved Patient A to the operating room where she alleged surgeon I The Director?s Summary Suspension Order also included charges that the Appellant violated professional boundaries by asking a patient on a date and engaged in unprofessional conduct by asking a female hospital employee to view pornography with him on a hospital computer. The parties involved presented testimony to the Hearing Of?cer and Hearing Committee on both additional charges. However, the Board declined to rule on either matter. For the purposes of the decision now on appeal, the Hearing Of?cer and the Hearing Committee focused solely on the charge that the Appellant sexually molested a patient. Accordingly, this Court will consider only those portions of the record that address the molestation charge. Danny B. M.D. commenced the surgical procedure. During the procedure, Patient A was wearing a blue johnny2 while lying ?at on a surgical table with her legs extended. (Tr. 2/18/05 at 75, 77.) Hospital staff placed a vertical surgical drape between Patient A and the surgeons. (Tr. 2/18/05 at 76.) This drape was located at or around Patient A?s navel and extended to a height of approximately one and a half feet above Patient A so as to preclude her from seeing the surgeons and vice versa. (Tr. 2/ 18/05 at 76.) The initial part of the surgery involved an arthroscopicg? examination of Patient A?s knee. (Tr. 2/ 18/05 at 78.) One of the surgeons had the surgical drape lowered during the arthroscopic procedure, so Patient A could see that part of the surgery on a television monitor. (Tr. 2/ 18/05 at 78-79.) The Administrative Decision noted that someone removed this monitor, but Patient A did not testify to this fact. (Administrative Decision at 4.) Patient A testi?ed that she was awake, alert, and speaking to Dr. during the arthroscopic procedure. (Tr. 2/ 18/05 at 78.) At this point in the surgery, the Appellant was with Patient A at the head of the table on her side of the surgical drape. (Tr. 2/ 18/05 at 83.) After the surgeons completed the arthroscopic portion of the operation, hospital staff raised the surgical drape so that Patient A could not see the more invasive portion of the surgery. (Tr. 2/18/05 at 86.) Patient A stated that once hospital staff had repositioned 2 johnny: a short-sleeved collarless gown with an opening in the back for wear by persons (as hospital patients) undergoing medical examination or treatment. Merriam-Webster's Medical Dictionary (Merriam-Webster, Inc), available at ohnny (last accessed Dec. 7, 2006). 3 arthr0300py: medical procedure involving the use of a surgical instrument for the visual examination of the interior of a joint (as the knee). Merriam-Webster's Medical Dictiona_ry (Merriam-Webster, Inc), available at (last accessed Dec. 7, 2006). the surgical drape to occlude her view of the surgeons, the Appellant began to massage her neck and shoulders with both hands. (Tr. 2/18/05 at 83-84, 86.) According to Patient A, she did not feel any pain and had not requested the massage. (Tr. 2/18/05 at 84.) Instead, she stated that she felt confused by the Appellant?s actions, because she was not sure if the massage was part of the surgical procedure. (Tr. 2/18/05 at 84?85.) The Appellant then allegedly began to touch her breasts under the johnny while asking if she had a boyfriend. (Tr. 2/18/05 at 86, 89.) Although the Administrative Decision found that they also talked about Christmas shopping (Administrative Decision at 20), Patient A did not recall. having that conversation. (Tr. 2/18/05 at 117-118.) Patient A then testi?ed that the Appellant bent down close to her face and told her not to tell anyone. (Tr. 2/18/05 at 87.) Otherwise, he could lose his job. (Tr. 2/18/05 at 87.) Patient A asked the Appellant if he did this all the time, to which he replied, ?No, I just couldn?t control myself.? (Tr. 2/18/05 at 87?89.) The Appellant told her at least three times that he would get in trouble if she told anyone. (Tr. 2/18/05 at 88.) After her conversation with the Appellant, Patient A fell asleep and did not awaken until hospital staff members were moving her from the operating room to the recovery room. (Tr. 2/18/05 at 89-90.) Patient 1 A awoke in the presence of two nurses, one male and one female. (Tr. 2/18/05 at 90.) After the male nurse left, Patient A told the female nurse what had transpired in the operating room. (Tr. 2/18/05 at 90.) The nurse then reported the incident to hospital administrative staff, who in turn asked Patient A to retell her story. (Tr. 2/18/05 at 91;) Patient A would recount her story several times that day. (Tr. 2/18/05 at 92.) On cross-examination, the Appellant?s counsel questioned Patient A about whether she mistook. the Appellant?s handling of the EKG leads and electrodes4 on her body for his having fondled [her breasts. (Tr. 2/18/05 at 111?113.) Patient A acknowledged that the Appellant reached under her johnny to attach leads to electrodes on her chest for monitoring purposes. (Tr. 2/ 18/05 at 111-112.) She testi?ed that when he attached the leads, the Appellant acted professionally and appropriately. (Tr. 2/18/05 at 117.) Patient A clearly recalled that the Appellant assaulted her only after the arthroscopic examination ended and hospital staff raised the surgical-drape. She testi?ed that at the time of the alleged assault, two female nurses and the surgeon were working on the sterile side of the drape, while she and the Appellant were alone on the non-sterile side. (Tr. 2/18/05 at 123.) Patient A seemingly did not recall the presence of assistant surgeon Michael Infantolino, M.D. during her operation. (Tr. 2/ 18/05 at 124.) Patient A also did not immediately alert others that the Appellant was acting inappropriately until several hours following the surgery. (Tr. 2/ 18/05 at 137.) Testimony of John R. Audett, M.D At the time of the incident, Dr. Audett was the Vice President for Medical Affairs at Kent County Hospital at the time of the incident. (Tr. 2/24/05 at 3.) Dr. Audett testi?ed that when he learned of Patient A?s complaint, he immediately initiated an investigation. (Tr. 2/24/05 at 6.) He interviewed the postoperative nurse, the circulating nurse stationed in the operating room during the surgery, Dr. and several other staff members. 4 EKG leads and electrodes: equipment attached to a patient?s body for the purpose of making a graphic recording of the electrical activity of the heart, used to evaluate cardiac function. is; The American Heritage Science Dictionary. (Houghton Mif?in CO), available at gram (last accessed Dec. 7, 2006). (Tr. 2/24/05 at 6.) Dr. Audett testi?ed that the hospital?s Vice President for Risk Management led all the interviews and encouraged the interviewees to provide an account of their perceptions. (Tr. 2/24/05 at 9.) Representatives of the hospital?s anesthesia group also observed the interviews. (Tr. 2/24/05 at 8.) Following these interviews, Dr. Audett and the other investigators met with the Appellant to obtain his side of the events. (Tr. 2/24/05 at 12.) The Appellant admitted to the group that he had given the patient a neck and shoulder massage and told them that he routinely provided massages to patients who had epidural anesthesia when delivering babies by Caesarian Section. (Tr. 2/24/05 at 12.) He implied to the interviewers that he could effectively extend the massage therapy to other surgical patients who received local anesthetics. (Tr. 2/24/05 at 13.) The Appellant told the group that in addition to the spinal anesthetic, he had administered other drugs to Patient A throughout the procedure, most notably Versed and Propofol. (Tr. 2/24/05 at 21.) In the meeting with the Appellant, one of his anesthesia group colleagues, Marc S. Andreani-Fabroni, M.D., stated that in his. experience, Propofol could cause patients to think strange thoughts. (Tr. 2/24/05 at 24.) For example, a patient might awaken thinking that he had been chopping wood in the backyard. (Tr. 2/24/05 at 24.) According to Dr. Audett, the Appellant did not reply to his colleague?s remarks. (Tr. 2/24/05 at 25.) Following his interviews with the staff involved in Patient A?s surgery and the Appellant, Dr. Audett met with Patient A and her family. (Tr. 2/24/05- at 28.) Dr Audett testi?ed that he found Patient A ?fully aware,? communicative and intelligent. (Tr. 2/24/05 at 2930.) He testi?ed that Patient A described in detail that the Appellant had started massaging her neck and shoulders, then moved his hands down to fondle her breasts. (Tr. 2/24/05 at 31.) She told Dr. Audett that she was aware of the placement of the EKG leads and that she knew they had nothing to do with the Appellant touching her breasts. (Tr. 2/24/05 at 32.) Dr. Audett stated that Patient A seemed offended that he would suggest that she did not understand the difference between incidental touching due to placing the EKG leads and fondling her breasts. (Tr. 2/24/05 at 32.) Dr. Audett also suggested to Patient A that the anesthesia drugs may have caused her to believe mistakenly that the Appellant had assaulted her. (Tr. 2/24/05 at 33-34.) He stated that his suggestion offended Patient A. (Tr. 2/24/05 at 34.) Finally, when Dr. Audett asked Patient A why she did not say anything when the Appellant was allegedly massaging her breast, she responded that she did not want to distract Dr. and adversely affect the outcome of the procedure. (Tr. 2/24/05 at 35-36.) Upon completion of his interview with Patient A, Dr. Audett concluded that her story was credible. (Tr. 2/24/05 at 37.) Administrative staff at the hospital then asked the Appellant to take an administrative leave from work at the hospital. (Tr. 2/24/05 at 37.) According to Dr. Audett, the Appellant agreed to the request. (Tr. 2/24/05 at 38.) Testimony of Susan Kelliher, R.N. - At the time of the alleged molestation, Nurse Kelliher worked at Kent County Hospital as a recovery room nurse for Patient A?s surgical procedure. (Tr. 2/24/05 at 54- 55.) Nurse Kelliher first saw Patient A when she arrived in the post-anesthesia'care unit after her surgery at approximately 11:40 AM. (Tr. 2/24/05 at 55.) She testi?ed that when Patient A ?rst arrived in the recovery room, Patient A was awake, but still under the effects of the spinal anesthetic. (Tr. 2/24/05 at 71.) According to Nurse Kelliher, she and other nurses evaluated Patient A?s condition approximately every ?fteen minutes. At 1:30 PM, Patient A reported to Nurse Kelliher for the ?rst time that someone at the top of the surgical table had inappropriately touched her during surgery while the surgical drape was raised and no one else could see the physical contact. (Tr. 2/24/05 at 77, 85.) Nurse Kelliher testi?ed that she immediately noti?ed the charge nurse about Patient A?s allegation. (Tr. 2/24/05 at 77.) Both the charge nurse and Mark Patrick, M.D., the Chief of Anesthesiology at Kent County Hospital, then spoke with Patient A. (Tr. 2/24/05 at 80-81, 90.) Patient A reiterated her story to them and told them that the person who had touched her was the same person that had provided her anesthesia. (Tr. 2/24/05 at 85.) Patient A denied to Nurse Kelliher, Dr. Patrick, and the charge nurse that she had complained of neck pain or discomfort that would warrant a neck massage. (Tr. 2/24/05 at 90-91.) Patient A repeated that she did not cry out or alert anyone about the incident during the surgical procedure because she was afraid to disrupt the surgery. (Tr. 2/24/05 at 88-89.) She also stated that she felt ?ashamed? and ?embarrassed.? (Tr. 2/24/05 at 88.) Patient A said that she believed that no one would believe her if she said anything. (Tr. 2/24/05 at 88.) According to Nurse Kelliher, Patient A was tearful, crying, and upset while recountingrher story, and she developed blotches on her skin. (Tr. 2/24/05 at 92.) Testimony of Martha Galeota, RN. Nurse Galeota participated in the surgical procedure to a limited extent. She worked as the circulating nurse while the primary circulating nurse, Lee-Ann Falcone, R.N., was taking a coffee break. (Tr. 2/24/05 at 110-111.) Therefore, Nurse Galeota was present during the surgery for approximately ?fteen minutes. (Tr. 2/24/05 at 111.) According to Nurse Galeota, a circulating nurse keeps an accurate record of a patient and his or her surgical procedure and assists the operating room nurse and surgeon as needed. (Tr. 2/24/05 at 109.) Nurse Galeota testi?ed that when she came into the operating room, she received a report from the primary circulating nurse on duty. (Tr. 2/24/05 at 114.) She then began completing her paperwork on Patient A?s progress and on the surgical procedure. (Tr. 2/24/05 at 114.) Nurse Galeota stated that she observed the Appellant at the head of the surgical table with Patient A. (Tr. 2/24/05 at 114.) The Appellant sat very close to Patient A and leaned over the end of the table. (Tr. 2/24/05 at 114?115.) Nurse Galeota did not observe what the Appellant was doing or hear whether he said anything . to Patient A. (Tr. 3/2/05 at 82.) However, Nurse Galeota testi?ed that the Appellant was hovering close to the patient in an ?intimate? manner. (Tr. 3/2/05 at 82.) She testi?ed that the Appellant was leaning over the patient with his arms on the table, but the surgical screen prevented her from seeing his hands. (Tr. 3/2/05 at 82.) Nurse Galeota then went to the foot of the table to assist the surgical team. (Tr. 3/2/05 at 83.) She observed that the Appellant sat next to the head of the table while she was in the operating room. (Tr. 3/2/05 at 84.) Nurse Galeota did not hear any conversation that may have taken place between Patient A and. the Appellant. (Tr. 3/2/05 at 87-88.) However, she testi?ed that the Appellant?s head was very close to Patient A as if they were conversing. (Tr. 3/2/05 at 88.) Testimony of Mark Patrick, MD. Dr. Patrick is the . Managing Partner of the anesthesia group working at Kent County Hospital.5 (Tr. 3/2/05 at 10.) On the afternoon of (December 23, 2004, a nurse 5 Anesthesia staff members at Kent County Hospital are not hospital employees. The anesthesia staff operates as an independent group that contracts with the hospital to provide anesthesia services. - from the PACU advised him in general terms about Patient A?s complaint. (Tr. 3/2/05 at 17-18.) Dr. Patrick immediately went to see her. When he arrived at the PACU, Patient A . was ?sobbing.? (Tr. 3/2/05 at 18.) She told him that the man that sat. at the head of the operating room table and gave her anesthesia had ?rubbed? her breasts. (Tr. 3/2/05 at 18.) According to Dr. Patrick, Patient A stated that she had tried to ?put it out of [her] mind.? (Tr. 3/2/05 at 18.) Failing that, she decided to Speak to someone about the incident. She said the man kept asking her if she had a boyfriend. (Tr. 3/2/05 at 18.) He also told her that he could not control himself and asked her not to tell anyone. (Tr. 3/2/05 at 18.) Patient A told Dr. Patrick that she was afraid to tell anyone during the incident for fear that the surgeon would injure her knee. (Tr. 3/2/05 at 20.) Dr. Patrick testi?ed that while he was talking to Patient A, the Appellant entered the PACU with another patient. (Tr. 3/2/05 at 20.) As soon as the Appellant started speaking, Patient A said to Dr. Patrick, ?That?s him, that?s the voice. l?ll never forget it.? (Tr. 3/2/05 at 20.) With regard to the drug regimen given to Patient A, Dr. Patrick stated that he examined her record, which prOvided the basis for his testimony. (Tr. 3/2/05 at 20.) He noted that she received a spinal anesthetic a localized anesthetic rather than general anesthesia. (Tr. 3/2/05 at 27-28.) While waiting in the holding area prior to her surgery, Patient A received a 2mg dose of Versed. (Tr. ?3/2/05 at 35.) Once in the surgical suite, the Appellant administered. a spinal with 1% Tetracine, Which would render Patient A numb and unable to move below her waist. During the operation, Patient A received three more doses of 2mg of Versed, which the Appellant injected at three distinct times during the operation. (Tr. 3/2/05 at 65.) Dr. Patrick explained that Versed is an anti-anxiety medication that reduces stress and induces amnesia. (Tr. 3/2/05 at 66.) Patient A also 10 received two doses of 50mg of Propofol, the ?rst at and the second at (Tr. 3/2/05 at 67.) Dr. Patrick also testi?ed about the placement of the EKG leads and electrodes on Patient A?s body. Though Patient A?s record did not indicate the number of leads, Dr. Patrick stated that ?ve would be a typical number, but could vary depending on the doctor?s medical judgment. (Tr. 3/2/05 at 38, 71.) Dr. Patrick testi?ed that an anesthesia provider would place leads near a patient?s breasts, but never on them. (Tr. 3/2/05 at 40.) Testimony of Danny E. MD. Dr. operated on Patient A?s knee. (Tr. 4/8/05 at 11.) He testi?ed generally about what transpired during the surgery, including the con?guration of equipment in the operating room. (Tr. 4/8/05 at 13-20.) However, Dr. could not offer any evidence that supported or disputed Patient A?s allegations of unwarranted touching because he was on the opposite side of the surgical drape and could notsee the patient?s upper body. However, Dr. did state that he could hear some limited conversation between the Appellant and Patient A, including some questioning regarding whether Patient A was feeling stiffness in her neck. (Tr. 4/8/05 at 25.) He recalled that Patient A responded af?rrnatively. (Tr. 4/8/05 at 26.) Dr. further testi?ed that he thought that the Appellant?s conversation was too friendly and that the questions he posed to. Patient A would be more appropriate coming from a person closer in age to her. (Tr. 4/8/05 at 26-27.) Dr. stated that he did not pay particular attention to the details of the conversation, but he felt that the Appellant may have been trying to allay any fears that Patient A had about undergoing surgery. (Tr. 4/ 8/05 at 26.) ll When asked to describe the operating room, Dr. testi?ed that a door with a window Connected the surgical suite to a hallway. (Tr. 4/ 8/05 at 33.) The door was located directly behind the head of the surgical table where the Appellant sat close to Patient A?s upper body. (Tr. 4/8/05 at 33.) Anyone passing by the window could look into the room. (Tr. 4/8/05 at 34.) However, Dr. stated that the Appellant and Patient A might not have been in plain view of anyone looking through the window. (Tr. 4/8/05 at 34.) He stated that the anesthesia apparatus is a large piece of equipment that extends toward the head of the table, thereby potentially obstructing the view of the Appellant and Patient A from the door. (Tr. 4/8/05 at 34.) Dr. noted that people do come through the door during surgery, since neither he nor the Appellant controlled access to the room. (Tr. 4/8/05 at 44.) Testimony of Patient A woman (?Patient testi?ed that the Appellant provided her with anesthesia during a surgical procedure in August 2000 at Wing Memorial Hospital in Palmer, Massachusetts. (Tr. 5/2/05 at 16.) Although the Administrative Decision asserted that Patient contacted the Board a?er reading about the Appellant?s Summary Suspension (Administrative Decision at 12, n. 7), Patient testi?ed that she became aware of the Appellant?s alleged incident with Patient A when a doctor from Wing Memorial Hospital contacted her. (Tr. 5/2/05 at 36.) At'the time of her surgery, Patient was twenty-three years old and a single mother. (Tr. 5/2/05 at 15-16.) She .went to the hospital-for the surgical removal of a on her left wrist. (Tr. 5/2/05 at 17.) Patient testi?ed that during her surgery, her upper body was on one side of a surgical drape. (Tr. 5/2/05 at 18-19.) The surgical drape rose 12 vertically to obstruct her View of the surgical team on the other side of the screen. (Tr. 5/2/05 at 19.) Her left arm was extended through an opening in the drape so that the surgeon could operate on her while on the drape?s sterile side. (Tr. 5/2/05 at 19.) The Appellant remained with Patient at the head of the table on the non-sterile side of the drape. Patient stated that the Appellant sedated her and that she fell asleep for about ?fteen or twenty minutes. (Tr. 5/2/05 at 20.) When she awakened, the Appellant began a conversation with her. (Tr. 5/2/05 at 20.) He asked about her marital status and whether she had any children. (Tr. 5/2/05 at 21.) According to Patient B, the Appellant commented on a small tattoo that she had on her neck. (Tr. 5/2/05 at 21.) He asked her if she had any others, and she responded that she had one on her stomach. (Tr. 5/2/05 at 21 .) The Appellant asked her if he could see the tattoo, and she gave him her permission. (Tr. 5/2/05 at 21.) Instead of looking at thetattoo, the Appellant placed both of his hands on her chest and began massaging and squeezing her breasts. (Tr. 5/2/05 at 21.) The Appellant then asked if he could play with her breasts, but Patient immediately refused. (Tr. 5/2/05 at 22.) Patient testi?ed that the Appellant then leaned closer to her and whispered into her right ear, ?Don?t tell anybody because trouble.? (Tr. 5/2/05 at 22.) According to Patient B, she did not tell anyone because she felt afraid and wanted to leave the hospital quickly. (Tr. 5/2/05 at 23.) After the operation, Patient B?s grandmother came to the hospital to ?nd out how Patient was 5/2/05 at 23.) Once her grandmother arrived, Patient told her what the Appellant had done to her. (Tr. 5/2/05 at 23.) Patient testi?ed that she reported the incident to the Palmer Police Department later that same day. (Tr. 5/2/05 at 24; State?s Exhibit 12.) Patient also discussed the incident with Wing Memorial 13 Hospital. (Tr. 5/2/05 at 26.) According to Patient B, the hospital?s medical director interviewed her ?rst, followed by a six-person investigatory team from the University of Massachusetts Medical Center.6 (Tr. 5/2/05 at 27-30.) Patient testi?ed that she was not satis?ed with the investigation because the team kept focusing on whether the assault she described actually occurred. (Tr. 5/2/05 at According to Patient B, the investigators for the hospital did not appear to believe her. (Tr. 5/2/05 at 31.) Patient further testi?ed that she wanted the police. to press charges against the Appellant. (Tr. 5/2/05 at 33.) However, the police concluded their investigation without charging the Appellant. (Tr. 5/2/05 at 34.) Likewise, the hospital seemingly took no action against him. (Tr. 5/2/05 at 36.) Patient did not initiate any legal action against the Appellant or attempt to obtain any money ?om him. (Tr. 5/2/05 at 32.) Patient testi?ed that she reported the alleged assault to the police and hospital authorities because she ?didn?t want to be a victim.? (Tr. 5/2/05 at 46.) Testimony of Karin Stitsinger, R.N. The Appellant called on Nurse Stitsinger to refute Patient B?s testimony. Nurse Stitsinger served as the circulating nurse during Patient B?s surgery at Wing Memorial Hospital. (Tr. 5/6/05 at 86-88, 94.) She adamantly stated that, as the circulating nurse, she could view Patient and the Appellant at all times during the procedure. (Tr. 7/20/05 at 38.) Nurse Stitsinger claimed that she did not observe any untoward activity on the part of the Appellant toward Patient B. (Tr. 5/6/05 at 90.) She stood by this claim throughout Wing Memorial Hospital?s investigation into Patient. B?s complaint. (Tr. 5/6/05 at 92-93.) 6 Wing Memorial Hospital is a member of the UMass Memorial Health Care system. 14 However, Nurse Stitsinger did note that she had a number of duties to perform as circulating nurse during the forty-minute surgery, including controlling Patient B?s tourniquet, taking notes on the procedure, and Walking around the room to watch the surgery. (Tr. 7/20/05 at 10-12, 21-22.) Additionally, Nurse Stitsinger testi?ed that she was ?'iendly with the Appellant and that he once had provided her with anesthesia during a surgical procedure. (Tr. 7/20/05 at 92.) She noted that they had communicated several times since he left the employ of Wing Memorial Hospital?once when she sought a reference from him and at other times ?just to gossip.? (Tr. 7/20/05 at'37-3 8.) Testimony of Michael J. Infantolino, M.D. Dr. Infantolino participated in Patient A?s surgery as the ?rst assistant to Dr. (Tr. 8/12/05 at 7.) During the surgery, Dr. Infantolino sat on Patient A?s left side, near her hip and on the sterile side of the surgical screen. (Tr. 8/12/05 at 7-8.) Dr. Infantolino testi?ed that as surgeons, he and Dr. concentrate their attention on the surgical area in this case, Patient A?s knee but they note all of a patient?s activities. (Tr. 8/12/05 at 10-11, 37-38.) From where Dr. Infantolino was sitting, he could Wheel his stool out of the sterile ?eld and look at Patient A and the Appellant at any time. (Tr. 8/ 12/05 at 23?24.) Dr. Infantolino indicated that he neither saw nor heard anything unusual during the operation. (Tr. 8/12/05 at 12.) Dr. Infantolino testi?ed that he cannot speci?cally recall whether he arrived in the operating room at the outset of the surgery or shortly thereafter. (Tr. 8/ 12/05 at 33-34.) Dr. Infantolino also, testi?ed that both Propofol and Versed are commonly used medications in surgeries. (Tr. 8/ 12/05 at 7.) When asked his opinion on the?allegations 15 against the Appellant, Dr. Infantolino stated that ?it?s mind?boggling? to believe that the Appellant could have assaulted Patient A in a room ?ill of people. (Tr. 8/ 12/05 at 45.) Testimony of Lee-Ann Falcone, R.N. Lee-Ann Falcone, R.N., served as the primary circulating nurse during Patient A?s surgery. (Tr. 8/12/05 at 50.) Nurse Falcone testi?ed that during the surgery, she had the responsibility of taking care of Patient A, assisting with the anesthesia, providing sterile equipment as needed, and keeping notes. (Tr. 8/12/05 at 50-51.) She estimated that she spent about ?fteen percent of her time to Patient?s A?s right side, about six feet away ?orn the Appellant on the non-sterile side of the surgical drape. (Tr. 8/12/05 at 52.) During the remaining eighty-?ve percent of the surgery, she was moving about the room performing her duties. (TI. 8/ 12/05 at 52..) She testi?ed that she did not speci?cally hear or see the Appellant say or do anything inappropriate to Patient A. (Tr. 8/ 12/05 at 52-53.) On cross?examination, Nurse Falcone described the surgical drape as being about six feet wide across the patient?s upper body. (Tr. 8/ 12/05 at 57.) The drape covered Patient A?s arms, but not her chest. The drape rises vertically above the patient?s body to a height of approximately two feet. (Tr. 8/ 12/05 at 62.) Patient A?s head, while lying on the Operating room table, rested about four feet above the ?oor, so the surgical screen risesto a total height of about six feet ??om the ?oor. (Tr. 8/ 12/05 at 62.) Nurse alcone I testi?ed that an anesthesia provider usually sits behind a patient?s head, such that other people typically cannot see him or her ?om the sterile side of the drape. (TI. 12/05 at 62?63.) During a surgical procedure, the surgeons normally cannot see the anesthesia provider, nor can the anesthesia provider see the surgeons. (Tr. 8/ 12/05 at 63.) 16 Testimony of the Appellant The State initially called on the Appellant to testify as an adverse witness. During this hearing session, the Appellant provided only general background information and refused to testify about Patient A?s allegations, invoking. his Fifth Amendment rights in light of an ongoing criminal investigation by the Of?ce of the Attorney General of Rhode Island. generally Tr. 2/18/05 at 10?64.) However, the Appellant later provided extensive testimony in his defense concerning Patient A?s allegations. He claims he ?rst heard of the complaint later in the same day as the surgery, when he met with Drs. Audett, Patrick, and Andreani-Fabroni and with the hospital?s Vice Presidentof Risk Management. (Tr. 7/26/05 at 12-13.) The Appellant testi?ed that he did not recall what explanation he gave during this meeting, but he did remember giving Patient A ?neck traction,? a term he uses interchangeably with ?neck massage.? (Tr. 5/4/05 at 79-80; Tr. 7/26/05 at 23-25, 44-45.) He denied ever fondling Patient A?s breasts. (Tr. 5/4/05 at 96.) The Appellant stated that when he applied neck traction to Patient A, his hands never went under the surgical drape. (Tr. 7/26/05 at 45.) in response to Nurse Galeota?s testimony that she could not see his hands, the Appellant testi?ed that he may have placed his handsunder Patient A?s head or behind her pillow. (Tr. 7/26/05 at 48.) The Appellant'also disputed Nurse Falcone?s testimony that the steriledrape rose two feet above Patient A?s chest at a ninety degree angle. (Tr. 8/12/05 at 76.) In his testimony, he initially described the sterile drape as rising at a right angle, but he later asserted instead that the angle was less severe, allong him to see Over the drape. (Compare Tr. 7/26/05 at 42 with Tr. 8/12/05 at 76.) 17 With regard to Patient B?s allegations arising ?om her surgery at Wing Memorial Hospital, the Appellant denied any wrongdoing. (Tr. 5/4/05 at could not recall speci?cally the medications he administered to her, but he thought he probably used Versed and Propofol. (Tr. 7/20/05 at 61.) He recalled that hospital administrators interviewed him about the incident, but took no further action. (Tr. 5/4/05 at 97-98.) With resPect to medications, the Appellant testi?ed that he is a ?minimalist,? meaning that he does not administer more medication than required. (Tr. 7/26/05 at 36.) In Patient A?s surgery, the Appellant claims to have administered four separate doses of 2mg of Versed one preoperative dose and the other three during the course of the procedure. (Tr. 5/4/05 at 93, 95; State?s Exhibit 4) Over the course of the surgical procedure, the Appellant administered two doses of Propofol at 50mg and, at the end of the surgery, Benadryl for Patient A?s alleged itching. (State?s Exhibit 4.) Expert Testimony of Kathleen Hittner, M.D.7 In establishing her expertise for the Hearing Committee, Dr. Hittner testi?ed that she worked as a full-time anesthesiologist at Miriam Hospital in Providence, Rhode Island from 1979 until 2000, when she assumed the presidency of the hospital. (Tr. 5/4/05 at 6.) Dr. Hittner also serves as a diplomat of the American Board of Anesthesiologists. (Tr. 5/4/05 at 5.) She testi?ed that despite her position as a hospital president, she practices anesthesia at. least one full day per week and more if Hospital?s anesthesia department requires additional support. (Tr. 5/4/05 at 6-7.) Dr. 7 Dr. Hittner did not provide any testimony with respect to Patient and the Wing Memorial Hospital surgery as the circumstances involving that incident became known to the State only after Dr. Hittner?s testimony. (Administrative Decision at 22.) 13 Hittner is also, a full Clinical Professor of Anesthesia at Brown University School of Medicine. (Tr. 5/4/05 at 7.) Dr. Hittner testi?ed that she is very familiar with the drugs Versed and Propofol. (Tr. 5/4/05 at 8.) She stated that in her capacity as Chief of Anesthesia at Miriam Hospital, she initiated the use of Pr0pofol at the hospital and has administered the drug in ?thousands and thousands? of cases in various operating room settings. (Tr. 5/4/05 at 9, 12.) She further testi?ed that she has used Propofol in ?every dose that is required for sedation of a patient.? (Tr. 5/4/05 at 14.) In support of his case, the Appellant placed into evidence several published articles of case studies involving the administration of Propofol and associated patient fantasies, speci?cally those of a sexual nature. Dr. Hittner commented on the articles based on her own experience as an anesthesiologist and as the supervising chief of a group of anesthesia providers. (Tr. 5/4/05 at 15.) Dr. Hittner testi?ed that despite thousands of cases in which she administered Propofol, she experienced only two instances in which she could recall anything of a sexual nature occurring. (Tr. 5/4/05 at 15.) In one instance, a male patient ?pinched? her backside, while in the other case, a female patient reached out to touch her. (Tr. 5/4/05 at 15.) Dr. Hittner stated she has neither observed nor received any reports of similar cases. (Tr; 5/4/05 at 16.) Furthermore, the two instances that she could recall occurred when anesthesia providers were, juSt beginning to use Propofol. (Tr. 5/4/05 at 16.) As anesthesia providers learned more about Propofol, they became more pro?cient at administering the drug. (Tr. 5/4/05 at 16.) According to Dr. Hittner, anesthesia providers commonly sedate patients using Propofol in combination with other drugs such as Versed. (Tr. 5/4/05 at 16.) 1 l9 Dr. Hittner then testi?ed that in preparation for her testimony, she had consulted the Physician?s Desk Reference concerning the use and effects of Propofol. (Tr. 5/4/05 at - 17.) She stated that the Physician?s Desk Reference notes that sexual fantasies in conjunction with the use of Propofol occurred in less than 1% of patients.8 (Tr. 5/4/05 at 17.) Dr. Hittner further stated that she could not ?nd any documented and controlled experiments regarding sexual fantasies resulting from the use of Propofol. (Tr. 5/4/05 at 16-17.) She asserted that the medical literature on this subject is not scienti?c, but is instead composed of reported case studies. (Tr. 5/4/05 at 21, 57.) Each case study describes one of two speci?c types of patient fantasies. In the ?rst type, the patient reaches out either verbally or physically to medical personnel as ?an object of their sexual attention or desire.? (Tr. 5/4/05 at 22.) In the second type, a patient feels as if someone has sexually assaulted him or her. (Tr. 5/4/05 at 22.) According to Dr. Hittner, the case studies reveal that incidences of these fantasies occur in cases wherein a surgical procedure involves parts of the body normally identi?ed with sexual acts. (Tr. 5/4/05 at 22.) Dr. Hittner gave examples of an endoscopy9 during which'the patient fantasized that she had oral sex and a surgery involving the placement of vaginal sponges wherein the patient fantasized that she had sexual intercourse. (Tr. 5/4/05 at 22?23.) Dr. Hittner stated that the introduction of the use of Versed in conjunction with Propofol has reduced the tendency of patients to ?act out.? (Tr. 5/4/05 at 23.) 8 The Physician?s Desk Reference lists ?amorous behavior? associated with the use of Propofol has having an ?incidence less than 1% Causal Relationship Unknown.? 9 endoscopy: visual examination of the interior of a body cavity or a hollow organ such as the colon, bladder, or stomach by means of a rigid or ?exible tube ?tted with lenses, a ?ber-optic light source, and often a probe, forceps, suction device, or other apparatus for examination or retrieval of tissue. The American Heritage Science Dictionary (Houghton Mif?in available at (last? accessed Dec. 7, 2006). 20 On cross-examination by the Appellant?s counsel, Dr. Hittner pointed out that the medical literature suggests that reports of the hallucinogenic properties of Propofol often disguise incidents of patient abuse. (Tr. 5/4/05 at 46.) Furthermore, she noted that the case studies speci?cally state not to use them in defense of criminal charges of sexual abuse. Dr. Hittner compared the reported cases to the incident reported by Patient A. Dr. Hittner stated that to a reasonable degree of medical certainty she could differentiate the case studies from Patient A?s allegations against the Appellant. (Tr. 5/4/05 at 26.) In these cases, the sexual fantasy comes ?om the release of a patient?s own inhibitions that causes the patient to act out or to make statements that a person would not otherwise state. (Tr. 5/4/05 at 26-27.) However, in the instant case, Patient A reported that the Appellant initiated a conversation with her and asked about her boyfriend. (Tr. 5/4/05 at 26.) The Appellant then progressed to massaging her neck, fondling her breasts, and ?nally telling her not to say anything about the occurrence. (Tr. 5/4/05 at 26.) Dr. Hittner testi?ed that Patient A?s allegations do not ?t any of the reported case studies. (Tr. 5/4/05 at 27.) Although Dr. Hittner found the neck massage ?unusual,? Patient A seemed to accept the Appellant?s offer to provide her with the massage. (Tr. 5/4/05 at 30.) Given that Patient A understood and agreed. to the massage, Dr. Hittner had dif?culty believing that the patient then imagined the physical touching and the Appellant?s admonition that she not tell anyone. (Tr. 5/4/05 at 30.) I In reviewing Patient A?s record of medications, Dr. Hittner testi?ed that she did not ?nd a problem with two doses of 50mg of Propofol. (Tr. 5/4/05 at 30, 32.) However, she stated that she would have used less than the four doses of Versed that the Appellant 21 "administered to Patient A. (Tr. 5/4/05 at 33-34.) The doctor opined that in light of the Propofol and the spinal anesthetic that the Appellant administered, the Appellant used an excessive amount of Versed. (Tr. 5/4/05 at 34.) Additionally, Dr. Hittner considered the administration of Benadryl near the end of the operation to. be unusual. (Tr. 5/4/05? at 32.) She stated that based on Patient A?s record and the anesthesia record, the initial dose of Versed in tandem with two administrations of Propofol should have proven suf?cient for the procedure. (Tr. 5/4/05 at 34-35.) In response to Patient A?s statement that she fell asleep after the Appellant fondled her breasts and admonished her not to tell anyone, Dr. Hittner opined that the Appellant administered the additional doses of Versed to cause the patient to sleep and forget that the incident occurred. (Tr. 5/4/05 at 35.) According to Dr. Hittner, administering Benadryl furthered this purpose. Dr. Hittner also testi?ed about the physical aspects of the operating room and the location of people therein. She stated that in the instant case, the surgeons would have conducted the procedure on the sterile side of the surgical drape outside the view of Patient A. (Tr. 5/4/05 at 37.) The Appellant would have had access to Patient A?s body from her head to almost her waist area and could reach under her patient drape.10 (Tr. 5/4/05 at 38.) On cross-examination, the doctor stated that she did not believe that the removal of the EKG leads could serve as stimuli that would provoke a sexual fantasy, because standards in the practice dictate placing the electrodes above'the breast area, higher on a ?0 A ?patient drape? covers a surgical patient like a blanket. It differs ?'om a ?surgical or sterile drape,? which rises at a ninety degree angle to a patient and separates the patient?s upper body from the surgical ?eld. 22 patient?s chest. (Tr. 5/4/05 at 53.) Dr. Hittner also noted that the Appellant charted itching and administrated Benadryl. She stated that she felt skeptical about Patient A?s alleged itching. (Tr. 5/4/05 at 68.) The operating room nurse did not chart the itching, nor did anyone report it in the PACU. Patient A?s itching appears only on the Appellant?s anesthesia chart. (Tr. 5/4/05 at 68.) Dr. Hittner reiterated her opinion that the Appellant administered the Benadryl in combination with the other medications to make Patient A sleep and forget what happened to her. (Tr. 5/4/05 at 69.) However, she also acknowledged that Benadryl is a common method for treating itchiness in surgical patients. (Tr. 5/4/05 at 68-70.) Expert Testimony of Edward A. Kent, MD. Dr. Kent is a board?certi?ed anesthesiologist. At the time of his testimony, Dr. Kent practiced anesthesia at South County Hospital in Wake?eld, Rhode Island. (Tr. 5/6/05 at 5.) He formerly served as Chief of the Department of Anesthesiology at South- County Hospital and President of the Rhode Island Society of Anesthesiologists. (Tr. 5/6/05 at 7.) Dr. Kent noted that anesthesia providers on occasion provide neck traction or massage to alleviate patient discomfort. (Tr. 5/6/05 at 31-33) He also stated that the amount of medication that the Appellant provided to Patient A falls within normal standards of care. (Tr. 5/6/05 at 27.) Dr. Kent did not believe that incident like that alleged by Patient A would likely occur in an operating room setting. (Tr. 5/6/05 at 56.) With regard to the medical literature on patient sexual fantasies due to Propofol . sedation, Dr. Kent co-authored an article citing cases of patients making physical advances to their anesthesia provider or asking very personal questions. Respondent?s Exhibit B.) He asserted that the medical literature must rely on anecdotal 23 evidence and case studies, because conducting controlled studies into Propofol-induced sexual fantasies would not be feasible. (Tr. 5/6/05 at 10.) He also testi?ed that he has personally observed patients speak and act amorously or otherwise inappropriately while sedated by Propofol. (Tr. 5/6/05 at 9-10.) 0 However, Dr. Kent could not provide statistical evidence on the frequency of Propofol-induced sexual hallucinations. (Tr. 5/6/05 at 18.) He also acknowledged that the relevant medical literature indicates that doctors have used the amnesiac effects of Versed to sexually assault their victims. (Tr. 5/6/05 at 54.) Expert Testimony of Marc S. Andreani?Fabroni, MD. Dr. Andreani currently works as the Chief of Anesthesia at Kent County Hospital and has served on the board of the Rhode Island Society of Anesthesiologists. (Tr. 7/20/05 at 41.) He has experience using Benadryl, Propofol, and Versed during surgeries, and he testified that the Appellant?s dosages fell within reasonable standard use of the drugs. (Tr. 7/20/05 at 49-51.) Moreover, Dr. Andreani considered the dosage of Propofol administered to PatientA as ?probably actually on the low side.? (Tr. 7/20/05 at 51.) He recalled witnessing two instances of hallucinations by patients administered Propofol, but noted that these events occurred approximately twelve or thirteen years ago. (Tr. 7/20/05 at 53-54.) He also acknowledged the lack of controlled studies on the link between Propofol and patients? sexual fantasies, but he believed that incidents of ?hallucinations, euphoria, dreams, etc.? occurred in less than one percent of cases. (Tr. 7/20/05 at 56.) 24 . Expert Testimony of William Dodd, Mr. Dodd has practiced as a nurse anesthetist for thirty years and currently serves on the Rhode Island Board of Nursing. (Tr. 7/26/05 at 4-5.) He testi?ed that he has used Prepofol in his cases on a regular basis for approximately the last twenty years. (Tr. 7/26/05 at 5-6.) Mr. Dodd reported that in 2005, he participated in a surgery on a female patient involving the administration of general anesthesia and an air mask. (Tr. 7/26/05 at 7.) He testi?ed that when he removed the airway mask, the patient exclaimed, ?God, that was the best sex I ever (Tr. 7/26/05 at 7.) Mr. Dodd further testi?ed that the Appellant administered dosages of medications within standard operating procedure in Patient A?s surgery. (Tr. 7/26/05 at 9-10.) On cross-examination, Mr. Dodd testi?ed that he was not engaged in an ongoing conversation with the surgical patient when she made her remark. (Tr. 7/26/05 at 11.) Expert Testimony of Frederick W. Burgess, M.D., Dr. Burgess is a medical doctor and is board-certi?ed in anesthesia. (Tr. 8/17/05 at .4-5.) He also has a bachelor?s degree in pharmacy and a doctorate in biochemical pharmacology. (Tr. 8/ 17/05 at 4.) He testi?ed that he examined the anesthesia record of Patient A?s surgery and stated that he was familiar with Versed, noting that the drug came into popular use around 1986. (Tr. 8/ 17/05 at 5, 6.) Dr. Burgess is also familiar with the use of Propofol, which becMe popularly used in the early 19903. (Tr. 8/ 17/05 at 4, 6.) He stated that he assists in operations similar to Patient A?s procedure on a basis. (Tr. 8/ 17/05 at 5.) Moreover, Dr. Burgess has utilized Versed and Propofol on a daily basis. (Tr. 8/ 17/05 at 7.) Dr. Burgess testi?ed that the combined use of Versed and 11 Certi?ed Registered Nurse Anesthetist. 25 Propofol is a common practice among anesthesia providers. (Tr. 8/17/05 at 16.) He explained that anesthetists use Versed to ?put the patient-out? and to diminish pain, While they administer Propofol to make the patient wake up with less of a ?hangover.? (Tr. 8/17/05 at 16.) The doctor further testi?ed that itchiness is often associated with the use of narcotics and that anesthesia providers usually administer Benadryl to treat the itchiness. (Tr. 8/ 17/05 at 17-18.) Dr. Burgess testi?ed that conversation between an anesthesia provider and a patient is not unusual. (Tr. 8/ 17/05 at 19.) In fact, he preferred conversation to silence, because conversing helps place the patient at ease and distracts the patient from any pain. (Tr. 8/17/05 at 19-20.) Dr. Burgess also stated that the use of neck massage or neck traction can also aid the anesthesia provider in keeping the patient comfortable. (Tr. 8/17/05 at 22.) He explained that patients who receive spinal blocks that create numbness and prevent movement can become stiff and uncomfortable. (Tr. 8/ 17/05 at 22.) However, he acknowledged that nothing in Patient A?s chart indicated that she was experiencing any neck discomfort. (Tr. 8/17/05 at 60?61.) . Dr. Burgess also commented on the anesthesia articles that the Appellant?s counsel had introduced into evidence. He testi?ed that the literature suggests that patients who reCeive lighter drug dosages are more likely to dream, and that with the use of Propofol, rapid recovery from the effects of the anesthetic might permit verbal communication before the patient had forgotten the dream.) (TI. 8/ 1 7/ 05 at 23-26.) On cross-examination, Dr. Burgess acknowledged that absent a complaint of pain from the patient, he would not introduce neck traction or massage. (Tr. 8/ 17/05. at 56.) 26 However, he noted that other anesthesia providers might use neck traction or massage without ?rst hearing a patient complain about pain or discomfort. (Tr. 8/17/05 at 5 5-56.) The Hearing Committee?s Conclusions The Hearing Committee considered Patient A?s testimony both credible and compelling. The Committee noted that she testi?ed about the incident in signi?cant detail, including her conversations with the Appellant and the alleged sexual assault. The conversation included discussions of Patient A?s boyfriend and her Christmas shopping. The Hearing Committee determined that Patient A did not express any discomfort of her neck or shoulders, but she did acquiesce to the Appellant?s suggestion that he give her a massage. He then proceeded to fondle or rub her breasts and asked her not to tell anyone about the incident. The patient said she then fell asleep and did not awaken until after the surgery. In addition to the patient?s testimony, the Hearing Committee considered Dr. Hittner?s observations noteworthy and accepted her as an expert witness in the ?eld of anesthesiology. Dr. Hittner testi?ed that although the Appellant utilized limited dosages of Versed and Propofol to sedate the patient, she opined that the amounts used in combination were excessive. In her opinion, the initial administration of Versed, followed by two doses of Propofol, was suf?cient to numb the patient and mask any pain. I The Hearing Committee concurred with Dr. Hittner in ?nding that the addition of more Versed would bring on sleep and possibly cause Patient A to? think that she had not remained awake during the procedure. Moreover, the Committee agreed with Dr. Hittner that Benadryl would contribute to Patient A?s sleep following the alleged molestation and amnesia upon waking. The Committee Members also considered signi?cant the fact that 27 the nurse?s notes made no mention of Patient A?s supposed itchiness which the Appellant claims necessitated the administration of Benadryl. In light of Dr. Hittner?s testimony, the Hearing Committee readily agreed that the Appellant deliberately chose to administer Versed, Propofol, and Benadryl to induce Patient A to forget that the incident ever happened. The Hearing Committee also noted the fact that the Appellant admitted to having a conversation with the patient and to giving her a neck message. In light of Dr. Hittner?s testimony, the Hearing Committee questioned why the patient would be so clear on that part of her recollection, but not on the Appellant?s actions that followed. In effect, the Appellant was asserting that the Hearing Committee should lend its credence: to one half of Patient A?s testimony, but not the other half. The Hearing Committee did not accept this line of reasoning. The Hearing Committee also considered Patient B?s testimony to be credible. 7 The Committee noted that the Appellant?s actions and statements during Patient B?s surgery mirrored the allegations of Patient A, down to the exact actions and words used by the Appellant. For example, the Appellant also engaged Patient in a conversation about her personal life. After observing that Patient had a tattoo and ?nding out that she had a second tattoo on her stomach, the Appellant asked to see it. When Patient acquiesced, the Appellant took the opportunity to move his hands down to her breasts and . begin squeezing them. He asked her if he could play with them, but she refused. He leaned close 'to her ear and told her that he could not help himself. As in the case of Patient A, he told Patient that he would get in trouble if she told anyone about the incident. Because Patient A and Patient did not know each other and lived in different 28 . states, the Hearing, Committee determined that ?the circumstances dictate against coincidence.? (Administrative Decision at 28.) The Hearing Committee further noted that Nurse?Falcone, the circulating nurse at Kent County Hospital, testi?ed that she spent only ?fteen percent of her time during Patient A?s surgical procedure seeing to Patient A, while she used the remaining eighty- ?ve percent to attend to other duties in the room. In contrast, Nurse Stitsinger, the circulating nurse at Wing Memorial Hospital, testi?ed that she did not leave the Appellant's side during Patient B?s surgery. The Hearing Committee did not accept Nurse Stitsinger?s testimony as credible, considering that circulating nurses have a duty to move . about the operating room while performing various functions on both the sterile and non- sterile sides of the surgical drape. Of the many witnesses who provided factual testimony about Patient A?s surgery, only the Appellant stated that from his position at the head of the surgical table he could observe persons on the sterile side of the drape. The Hearing Committee noted that Dr. Infantolino's testimony was unclear regarding whether he claimed that he could see over the sterile drape while he was seated assisting in the Surgery or that he could see beyond the screen only if he wheeled his chair to the right into the non-sterile side of the drape. Regardless, Dr. clearly testi?ed that he could not see over the sterile drape while seated on the opposite side. Thus, the Hearing Committee: did not accept as true that a physician seated and performing surgery on the sterile side of the drape could simultaneously see over the drape to the head of the table. I The Hearing Committee duly read and considered the case studies and articles I presented by the Appellant. The Committee held that this evidence did not represent 29 controlled experiments. Furthermore, the articles and studies include cautionary language advising that a defendant not use them as evidence in sexual molestation cases. Some of the material also acknowledged that reported cases have been used to conceal patient abuse. Therefore, the Hearing Committee attributed minimal weight to the case studies and articles detailed, especially when measured against the testimony given by Patient A and Patient in this case. After considering the testimony and other evidence in the record, the Hearing Committee held that the Appellant committed unprofessional conduct by sexually molesting a female patient in his care in violation of G.L. 1956 5-37-51, both in general and Speci?cally subsections (7), (l 9), and (30) thereof. In the Hearing Committee?s Administrative Decision of December 8, 2005, the members unanimously voted to revoke the Appellant?s license to practice medicine. All three members certi?ed that they read the transcript, revievved the evidence, and gave their assent to the Administrative Decision. (Hearing Committee?s Certi?cation.) The Hearing Of?cer signed the Revocation Order, and the Rhode Island Director of Health assented to the Order as to form and substance. On December 27, 2005, the Appellant timely ?led the instant appeal pursuant to the Administrative Procedures Act, G.L. 1956 42-35-15. Thereafter, on April 11, 2006, a jury found the Appellant not guilty of sexual assault in a criminal trial arising out of the same events as the matter here on appeal. STANDARD OF REVIEW 7 The Superior Court of Rhode Island reviews contested agency decisions pursuant to the provisions of the Rhode Island Administrative Procedures; Act, G.L. 1956? 42-354 15(g). SectiOn 42-35-15(g) provides that: 30' [t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on the questions of fact. The. court may af?rm a decision of the agency or remand the case for ?irther proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative ?ndings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In access of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; 7(5) Clearly erroneous in light 'of reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. In reviewing an agency decision, this Court will not weigh the evidence upon which ?ndings of fact are based, but will limit itself to an examination of the certi?ed record in deciding whether the agency had substantial evidence to support its decision. Ctr. for Behavioral Health, Rhode Island, Inc. v. Barres, 710- A.2d 680, 684 (R1. 1998). The Rhode Island Supreme Court has de?ned ?substantial evidence? as ?such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance.? Newnort Shipyard, Inc. v. R.I. Comm?n for Human Rights, 673 A.2d 457, 459 (RI 1996). Moreover, this Court will not substitute its judgment for that of an agency as to the weight of the evidence. on questions of fact, even if this Court ?might be inclined to view the evidence differently and draw inferences different ?'om those of the agency.? .mg Ambulatory Surgical Assocs. v. Nolan, 755 A.2d 799, 805 (RI 2000) (quoting 31 Rhode Island Pub. Telecomm. Auth. V. Rhode Island State Labor Relations Bd., 650 A.2d 479, 485 (RT. 1994)). When ?ndings of fact are the product of a two- tiered agency review, the body of law elevates the role when credibility is in issue. Envtl. Scienti?c Corp. v. Durfee. 621 A.2d 200, 209 (RI. 1993). Therefore, this Court may reverse ?ndings of fact only where the factual conclusions of an administrative agency are ?totally devoid of competent evidentiary, support in the record,? Baker v. Dep?t of Employment and Training Bd. Of Review, 637 A.2d 360, 363 (RT. 1994) (quoting Milardo v. Coastal Res. Mgmt. Council, 434 A.2d 266, 272 1981)). However, this Court may freely conduct review of determinations of law made by the agency. Arnold V. R.I. DOL Training Bd. of Review. 822 A.2d 164, 167 (RT. 2003) (citing Johnston Ambulatory Surgical Assocs.. Ltd. v. Nolan, 755 A.2d 799, 805 (RI. 2000)). DISCUSSION I Constitutionality of G.L. 1956 The Appellant has attacked the constitutionality of G.L. 1956 based on the fact that this statute does not require the members of a hearing committee to observe, personally all testimony during a hearing to determine whether a medical professional has engaged in unprofessional conduct. The Appellant alleges that the statute violates his right to due process Of law, because Hearing Committee members charged with making credibility determinations can only duly evaluate witness testimony by attending all hearing sessions. Section 5-3 provides that: 32 [i]n the event of a determination by the investigating committee of probable cause for a ?nding of unprofessional conduct, the accused may request a hearing (see 5-37-5.3 and A hearing committee shall be designated by the chairperson consisting of three (3) other members of the board, at least one of whom shall be a physician member and at least one of whom is a public member. If the complaint relates to a procedure involving osteOpathic manipulative treatment (OMT), at least one member of the investigating committee shall be an osteopathic physician member of the board. The hearing shall be conducted by a hearing of?cer appointed by the director of the department of health. The hearing of?cer shall be responsible for conducting the hearing and writing a proposed ?ndings of fact and conclusions of law along _with a recommendation of a sanction, if warranted. The hearing committee shall read the transcript and review the evidence and, after deliberation, the hearing committee shall issue a ?nal decision including conclusions of fact and of law. The board shall make public all decisions including all conclusions against a license holder as listed in ?5 -3 7-6.3. The Constitutions of both the United States and Rhode Island provide that the state shall not ?deprive any person of life, liberty, or property, without due process of law.? US. Const. amend. XIV, 2; RI. Const. art. I, 2. The Appellant asserts that his license to practice mediCine constitutes a constitutionally protected property right, citing a number of federal cases in support of this contention. Lowe v. Scott, 959 F.2d 323 (lst Cir. 1992); Beauchamp v. De Abadia, 779 F.2d 773 (1st Cir. 1985); Kudish v. Bradley, 698 F.2d 59 (lst Cir. 1983). According to the Appellant, procedural due process demanded the personal presence of the Hearing Committee members at all sessions of the hearing. In the instant case, only one member of the three-member panel observed all twelve sessions of the hearing. The remaining two members each only observed one session personally?the testirnony of Patient on May 2, ?2005. The Appellant claims 7 that having all three members appear together at only one of the Sessions deprived him of his right to due process. 33 The record evidences that the Appellant did not argue the issue of his due process rights before the Hearing Committee. The Rhode Island Supreme Court has consistently held that a court "will not consider on appeal an issue that was not raised before the trial court." East Bav Cmtv. Dev. Corp. v. Zoning Bd. of Review. 901 A.2d 1136, 1152 (RI 2006) (quoting Harvey Realty v. Killinng Manor Condominium Assoc, 787 A.2d 465, 466-467 (R1. 2001)). However, the Supreme Court has never explicitly held that the ?raise-or?waive? doctrine applies to administrative proceedings. Id; at 1153. Because the instant appeal implicates an important constitutional right?41m right to a fair hearing?? this Court will address the rami?cations of the Appellant?s constitutional challenge, because the failure to raise a constitutional issue at the administrative level does not preclude its litigation in Rhode Island Superior Court. Randall v. Norberg, 121 R.I. 714, 721, 403 A.2d 240, 244 (1979) (holding that an appellant of a tax administrator?s decision could have alleged a due process issue for the first time while on appeal to the Superior Court). In support of his assertion that see. violates his due process rights, the Appellant relies heavily on a series of Massachusetts cases, a set of decisions from the State of New Hampshire?In re Smith, 652 A.2d ?154 (NH. 1994), and In re Grimm, 635? A.2d 456 (NH. l993)??and the Rhode Island Superior Court?s decision in El Gain v. R.I. Bd. of Med. Licensure and Discipline, No. 97?4344, 1998? R.I. Super. LEXIS 36 (R.I. 7 Super. Ct. 1998). The Appellant has misplaced his reliance on these cases. 7 With regard to the New Hampshire decisions, this Court notes that the statute controlling how medical board hearings should take place in New Hampshire differs from our own statute in Rhode Island. Section specifically provides that none'of 34 the hearing committee members has to attend the hearing sessions. Instead, the statute charges the designated hearing of?cer with ?conducting the hearing and writing a proposed ?ndings of fact and conclusions of law along with a recommendation ?of a sanction, if warranted.? The committee members must only ?read the transcript and review the evidence? to make a ?nal decision. In contrast, the corresponding New Hampshire statute does not involve a hearing of?cer as a statutorily designated fact- ?nder. N.H. Rev. Stat. Ann. As noted in mm and S_mith, the board itself has elected to make factual determinations as a hearing panel. Unlike sec. 5?37? the New Hampshire statute does not excuse board members ?om attending hearings personally. Thus, the New Hampshire statute provides no guidance for this Court, particularly in light of established precedent in Rhode Island and in other jurisdictions. Furthermore, the decision does not call into question the constitutionality of sec. The Appellant asserts that the judge in that case determined that the appellant's due process rights were not violated only after the majority of the hearing committee members had heard all of the testimony and the other member had read the complete transCript of the hearing he missed. (Appellant?s Memorandum of Law at 16, citing M, 1998 R1. Super. LEXIS 36 at However, when the Superior Court decided sec. required the hearing committee, and not the hearing, of?cer, to conduct the hearings. Additionally, on-closer inspection of Elgabrj, this Court notes that the judge only offered this statement as Speculation on how he might have ruled if the two members who were present during the entire testimony differed in their 35 vote on the decision and the third absent member had to break a tie. In reality, the two members in M11 actually concurred on their ?nding, rendering this speculation moot. As the Appellant himself notes, the state legislature has since revised sec. 5-37? 5.2(e) to remove the quorum requirement. Now, a hearing of?cer no longer merely conducts the proceedings. Instead, the designated hearing of?cer pr0poses ?ndings of fact and conclusions of law. Under the current statutory provisions, the committee members need not hear testimony in order to satisfy due process. Indeed, the Massachusetts cases cited by the Appellant turned on the fact that no one charged with fact-?nding or with rendering a decision evaluated the credibility of witnesses. gig of Salem v. Mass. Comm?n Against Discrimination, 534 283 (Mass. 1989) (remanding an agency decision for a new hearing because the hearing of?cer died before rendering a decision and the substitute hearing of?cer observed none of the hearing testimony); Dowd v. Dir. of Div. of Employment Sec., 459 471, 473 (Mass. 1984) (remanding a case for further proceedings where ?no one, neither the evidence taker nor the decisionmaker Lg], assessed the credibility of the witnesses?). However,-under sec. 5-3 and in the instant case speci?cally, the appointed hearing of?cer satis?es the need to have a fact-?nder present at all hearings. 7 As the Connecticut Supreme Court noted in Pet v. Dept. of Health Servs., 638 Ai2d 6, 19-20- (Conn 1994), an agency hearing satis?es a respondent?s right to due process when each hearing committee member has either heard all the evidence or read the transcript in its entirety. The Bet decision implicated the due process rights of a medical professional facing the suspension of his license to practice medicine. There, the court held that ?where hearings are required by statute, a board member need not be 36 present in order to participate in decisions, if that member acquaints himself suf?ciently with the issues raised and the evidence and arguments presented at the public hearing?in order to exercise an informed judgment.? m, 638 A.2d at 20. In evaluating sec. this Court remains mindful that the Rhode Island Supreme Court has provided strict guidelines for investigating the constitutionality . of state statutes. ?In reviewing the constitutionality of statutes, ?[t]he Legislature is presumed to have acted within its constitutional power.? Gem Plumbing Heating Co. v_.lio_s_s_i, 867 A.2d 796, 808 (RI. 2005) (quoting Burrillville Racing Assoc. V. State, 372 A.2d 979, 982 (R1. 1977)). State courts must ?attach ?every reasonable intendment in I favor of . . . constitutionality? in order to preserve the statute.? I_d. (quoting meh v. 391 A.2d 117, 121 (R1. 1978)). The party challenging the constitutionality of a statute ?bears the burden of proving that the statute is unconstitutional.? Li. (quoting M, Insurers' Insolvency Fund v. Leviton Mfg. Co.. 716 A.2d 730, 734 (R1. 1998)). Therefore, ?the challenger must prove beyond a reasonable doubt that the statute is unconstitutional.? Id, (citing R.I. Insurers' Insolvency Fund, 716 A.2d at 734); When attacking economic legislation, such as statutes implicating property rights, the United States Supreme Court has held that ?the burden is on one complaining of a due process violation to establish that the legislature acted in an arbitrary and irrational way.? Mg Power Co. v. Carolina Envtl. Study Group, Inc., 438 US. 59, 83 (1978) (quoting Dim Turner Elkhorn Mining Co.. 428 US. 1, 15 (1976)). i i In this-case, the Appellant has not met the burden of proving beyond a reasonable doubt that sec. violates his constitutional rights by not requiring all members of the Hearing Committee personally to observe all testimony. Under Section 5- '37 the Hearing Of?cer must ?[conduct] the hearing and [write] a proposed ?ndings of fact and conclusions of law along with a recommendation of a sanction, if warranted.? The statute then requires the members of the hearing committee to ?read the transcript and review the evidence? and ?issue a ?nal decision including conclusions of fact and of law.? The Rhode Island Supreme Court has consistently upheld statutes requiring a hearing of?cer to hear evidence and make a recommended decision which the state agency either accepts, modi?es or rejects. Egg Goncalves v. NMU Pension Trust, 818 A.2d 678 (R.I. 2003); Envtl. Scienti?c Corp. v. Durfee, 621 A.2d 200 (R.I. 1993). In fact, Rhode Island courts must afford great deference to agency decisions based on the ?ndings of fact and recommendations of the hearing of?cer. Goncalves, 818 A.2d at 682? 683. ?[R]eviewing courts will uphold administrative decisions . . . as long as the administrative interpreters have acted within their authority to make such decisions and their decisions were rational, logical, and supported by substantial evidence." Li. (citing Doyle v. Paul Revere Life Insurance Co., 144 F.3d 181, 184 (lst Cir. 1998)). I In light of the ?great deference? afforded to the hearing of?cer?s ?ndings, the ultimate fact-?nders do not have'to observe all proceedings of an agency hearing. The Rhode Island Supreme Court has held that: in a quasi-judicial contest . . . ?when a quorum of [fact-?nders] reaches its decision after having access to a transcript of the hearing and also the evidence . . . [t]here is a presumption, soundly established, rationally reached, that administrative of?cials will properly consider the evidence before they reach a decision.? This principle is in accord with the general rule that ?in the absence of speci?c statutory direction to the contrary the deciding member or members of an administrative or quasi-judicial agency need not hear the witnesses testify . . . . The general rule is that it is enough if those who decide have considered and appraised the evidence.? 38 Gardner v. Cumberland Town Council, 826 A.2d 972, 979 (R1. 2003) (quoting In re R1. Comm?n for Human Rights, 472 A.2d 1211, 1214 (R1. 1984) and Younkin v. Boltz, 216 A.2d 714, 715 (Md. 1966)). The Supreme Court has held that fact??nders can rely on a transcript even when asked to assess the credibility of witnesses, including victims of an accused party?s unprofessional conduct. See Foster-Glocester Reg'l Sch. Comm. v. 13d. Of Selim, 854 A.2d 1008, 1020 (?nding no reason for an agency to present as witnesses the victims of a teacher?s inappropriate conduct when a transcript of their testimony before. an arbiter was available). Other jurisdictions have also held an agency?s fact- ?nders do not violate a party?s right to due process byrelying on a transcript of an agency hearing in rendering their decision. See, Grupo Indus. Camesa v. United Stagg, 85 F3d. 1577, 1580 (Fed. Cir. 1996) (holding that an agency?s fact-?nder does not have to be present to hear the testimony upon which the ?nding is based); Au Yi Lau v. ES, 555 F.2d 1036, 1042 (DC. Cir. 1977) (holding that ?even without agreement of the parties, a member of an administrative agency who did not hear oral argument may - nevertheless participate in the decision where he has the bene?t of the record before him?); NLRB v. Stocker Mfg. Co., 185 F.2d 451, 453 (3d Cir. 1950) (holding that an agency is permitted to make its ?ndings and predicate its orders upon the written record without hearing the witnesses testify); Pundv v- Dgat. of Prof?l Regulation, 570 458, 466 (Ill. App. Ct. 1991) (holding that in a medical license suspension hearing, ?[d]ue process does. not require that a quorum of the decision-making board personally hear all of the evidence in order for an administrative determination to be valid?). Accordingly, this Court ?nds that the hearing provided to the Appellant under sec. 5-3 did 7 not substantially prejudice his procedural due process rights. 39 II Admissibility of Alleged Hearsay Testimony The Appellant argues that the Hearing Of?cer should not have admitted the testimony of Dr. Audett, Dr. Patrick, and Nurse Kelliher regarding Patient A?s statements to them about the Appellant?s alleged sexual misconduct. Essentially, the Appellant argues that their testimony amounts to inadmissible hearsay, because Patient A?s repetition of the same statements to multiple hospital employees does not make the allegations true. R.I. R. Evid. 801(0). Therefore, the testimony. of these three witnesses unfairly prejudiced the Appellant throughout the administrative proceedings and inappropriately in?uenced the outcome of the hearing. Regardless of whether the contested testimony amounted to hearsay, the Rhode Island Supreme Court has held that hearsay testimony is admissible in administrative hearings. DePasquale v. Harrington, 599 A.2d 314, 316 (RI. 1991). In DePasguale, the Supreme Court stated that: [t]he admission of hearsay evidence in an administrative forum is re?ective of the traditional division of function between judge and jury. Many of the rules surrounding the exclusion of hearsay in jury trials are meant to prevent juries, uninitiated in the evaluation of evidence, from hearing unreliable or confusing testimony and rendering a verdict based on such evidence. See McCormick on Evidence, 351?352 at 1006-12. Such protection is far less necessary when evidence is presented to a judge sitting without a jury or, as in this case, a hearing of?cer with substantial expertise in the matters falling within his or her agency's jurisdiction. I_d, See 2 Charles H. Koch, Jr., Administrative Law and Practice, (2d ed. 1997) (?The general rule remains that hearsay eVidence is admissible in administrative hearings?). "Administrative hearings are not held to the same evidentiary standards as criminal or even judicial civil proceedings. Hearsay is quite acceptable in administrative 40 hearings.? In re Cross, 617 A.2d 97, 102?103 (R.I. 1992) (citing Craig v. Pare, 497 A.2d 316, 320 (R1. 1985)). Section Speci?cally provides for circumstances in which a hearing of?cer can admit evidence that Rule 404(b) might otherwise exclude. Section 42-35- 10(a) provides in relevant part that: [i]rrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in civil cases in the superior courts of this state shall be followed; but, when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible under those rules may be submitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs . . . . (emphasis added) Section 42-35-10(a) thereby allows for the admission of evidence if a reasonably prudent man would commonly rely on that type of evidence. The Rhode Island Supreme Court has held that ?a hearing of?cer with ?substantial expertise in matters falling within his or her agency?s jLu'isdiction? should be able to judge whether evidence offered is trustworthy, credible, and probative regardless of whether it is hearsay.? Foster-Glocester m1 Sch. com., 854 A.2d at 1019 (quoting DePasguale, 599 A.2d at 316). The Supreme Court has consistently relied on hearing officers? ?ability to exercise prudence in considering evidence and the reliability that must condition its admissibility.? DePasguale, 599 A.2d at 317. Thus, this Court ?nds that see. 42-35-10(a) does not bar the admission of the testimony of Dr. Audett, Dr. Patrick, and Nurse Kelliher, because the Hearing Of?cer, acting with reasonable prudence and within her expertise, considered their testimony necessary to ascertain facts about the complaint, such as the consistency of Patient A?s story and the circumstances surrounding her recounting of the incident. The Hearing Of?cer did not abuse her discretion by admitting the testimony of the three _41 witnesses, and her admission of the alleged hearsay testimony was not affected by error of law. This Court need not address the issue of whether the contested testimony amounted to hearsay. However, this Court ?nds that the testimony of these three witnesses does not actually constitute inadmissible hearsay. Rule 801(d)(1)(B) of the Rhode Island Rules of Evidence provides that a hearing of?cer can admit evidence of prior consistent statements to rebut a charge of recent fabrication or improper in?uence or motive by the declarant, as long as the opposing party has had the opportunity to cross- examine the declarant regarding the statement. See State v. Morey, 722 A.2d 1185, 1188 (RI. .1999) (stating that, in a criminal context, the Supreme Court would admit testimony that simply demonstrated that the complainant?s testimony never varied). Here, Patient A testi?ed without objection that she recounted the incident involving the Appellant to multiple hospital staff members. (Tr. 2/18/05 at 92-93.) The Appellant?s counsel later cross-examined her regarding her discussions with people in the PACU. (Tr. 2/18/05 at 138-140.) The Appellant?s counsel then proceeded to challenge Patient A as. to the truth of the alleged incident: A Q. You certainly had anopportunity to tell a number of people before you actually said something to Susan [Kelliher] about three hours after you got into the recovery room, correct? A. I Suppose so. Q. But you elected not to? A. Yes. 7 (Tr. 2/ 18/05 at 139.) The Appellant?s counsel then questioned Patient A about how she made her comments to people at the hospital: 42 Q. Now, you indicated that you made comments to a number of people in the hospital and I think we went through a litany of people that you allegedly talked to. Did you ever give any written statement to anyone in the hospital as to what allegedly occurred to you? The Witness: A written statement? Mr. Carroll: Written statement. The Witness: While I was at the hospital, is that Mr. Carroll: At any time while you were in the hospital. While you were at the hospital did you make a written statement? A. No. (Tr. 2/ 18/05 at 139.) The testimony of Dr. Audett, Dr. Patrick, and Nurse Kelliher concerns Patient A?s recounting of the alleged incident. Their statements provide evidence of Patient A?s prior consistent statements used to rebut a charge of recent fabrication or improper motive by opposing counsel. Therefore, their testimony does not constitute hearsay, and the Hearing Of?cer did not abuse her discretion or make an error of law by admitting their testimony into the record. - Admissibility of Patient B?s Testimony The Appellant argues that the Hearing Officer erroneously admitted into evidence the testimony of Patient B. The event about which Patient testi?ed occurred several years prior to Patient A?s surgery, and neither the local police northe hospital ever ?led charges or took disciplinary action against the Appellant. Patient testi?ed that the Appellant sexually molested her during a surgical procedure at Wing Memorial Hospital in Palmer, Massachusetts in August 2000. She asserted that after receiving anesthesia from the Appellant, he started talking to her and asking questions regarding her family, her relationships, and her tattoos. Although she acknowledged giving permission for him 43 to see a tattoo on her stomach, she thought he would view the tattoo by lifting the side of her johnny. According to her testimony, he instead lifted the johnny from her neck area and proceeded to fondle her breasts, even after she told him not to touch her in that manner. She also stated that he asked her not to tell anyone about his actions because he could ?get in a lot of trouble.? She claims that no one else in the operating room could observe the Appellant?s actions, because the other operating room staff were on the other side of a surgical drape from Patient and the Appellant. She later reported the incident to the Palmer Police Department and signed a police statement detailing her allegations against the Appellant. The Appellant asserts that pursuant to sec. the hearing of?cer must follow the Superior Court?s Rules of Evidence, which he claims would bar the admission of Patient B?s testimony. The Appellantclaims that her testimony unduly prejudiced him, because her statements amounted to inadmissible character evidence under Rule 404(b) of the Rhode Island Rules of Evidence. To support this contention, the Appellant relies on State v. Quattrochi, 681 A.2d 879 (RI. 1996) (holding that the trial court improperly admitted evidence of two uncharged sexual encounters with other children because the evidence had no independent relevance that was reasonably neCessary to prove the elements of the crimes charged). Section 42-35-10(a) speci?cally provides for circumstances in which a hearing of?cer can admit evidence that Rule 404(b) might otherwise exclude. Section 42-35- 10(a) provides in relevant part that ?when necessary to ascertain facts not reasonably susceptible?of proof under [Superior Court Rules of Evidence], evidence not admissible under those rules may be submitted (except where precluded by statute) if it is of a type 44 commonly relied upon by reasonably prudent men in the conduct of their affairs.? As previously noted, ?a hearing of?cer with ?substantial expertise in matters falling within his or her agency?s jurisdiction? should be able to judge whether evidence offered is trustworthy, credible, and probative regardless of whether it is hearsay.? Foster?Glocester Reg'l Sch. Comm., 854 A.2d at 1019 (quoting DePasguale, 599 A.2d at 316). Thus, this Court ?nds that see. 42-35-10(a) does not bar the admission of Patient B?s testimony, because the Hearing Of?cer, acting with reasonable prudence and within her expertise, considered the Testimony of Patient necessary to ascertain facts about the Appellant, such as the similarity of the experiences Patient A and Patient had with the Appellant. Additionally, the Appellant attacks the credibility of Patient B?s testimony, citing the testimony of NUrse Stitsinger, who claims she stayed within approxiinately two feet of the Appellant and had a clear View of both the Appellant and Patient throughout the surgical procedure. The Appellant also raises the fact that both Wing Memorial Hospital and the Palmer Police Department investigated Patient B?s claims and decided not to pursue disciplinary action or ?le charges against the Appellant. Courts may not substitute their judgment for that of an agency. with respect to the credibility of a witness. Tierney v. Dep't of Human Servs., 793 A.2d 210, 213 (R.I. 2002). Therefore, this Court will make no new determinations as to the credibility of Patient when the Hearing Committee has already considered her testimony credible. Even if this Cour-t were to follow the Appellant?s assertions and consider the evidence under Rule this Court would still ?nd Patient B?s testimony admissible. Rule 404(b) provides that: I [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity 45 therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable. The Rhode Island Supreme Court has held that courts may admit evidence of uncharged sexual conduct admitted to show motive, intent, and a plan to engage in sexual molestation, even if the uncharged incident occurred many years previously. SQ mm, 698 A.2d 183, 185 (R.I. 1997) (admitting evidence of the uncharged sexual molestation of a child occurring ten years prior to the incident before the trial court). A trial justice may conclude that evidence of a defendant?s sexual misconduct with another victim ?is also admissible under certain limited circumstances when it tends to establish that the charged misconduct was part of a common scheme or plan directed against victims under the defendant?s. control.? State v. Rice, 755 A.2d 137, 145 (R.I. 2000) (citing Hem, 698 A.2d at 185). Courts may also consider ?evidence of 'uncharged sexual misconduct [when used] to Show ?lustful disposition or sexual propensity.? Stag v. Morey, 722 A.2d 1155, 1189 (R.I. 1999) (quoting State v. Toole, .640 A.2d 965, 971 (R.I. 1994)). In the instant matter, the accusations of Patient A and Patient exhibit ahigh I degree of coincidence. The two incidents involved young, female patients in the Appellant?s care when he had overwhelming control over them. Their testimony noted that he asked them similar, overly familiar questions about'their personal relationships before fondling theirbreasts. Each patient stated that he reached for her breasts v'iaprthe neck-opening of her johnny while a surgical drape concealed the Appellant and his patient ?'om the direct view of the other medical staff in the operating room. Furthermore, in both cases, Patient A and Patient testified that the Appellant 46 admonished them not to talk about the molestation because he could get into considerable trouble. In light of the strong similarities in the allegations of Patient A and Patient against the Appellant, admitting Patient B?s testimony under one or more of the Rule 404(b) exceptions, such as motive, Opportunity, intent, or identity, did not constitute an abuse of discretion and was not affected by error of law. IV. References to the Appellant?s Criminal Trial The'Appellant calls special attention to the :verdiCt of criminal trial, decided several months after the agency decision here on appeal. (Appellant?s Memorandum of Law at 2-3, 51-53.) In the criminal trial, a jury found the Appellant not guilty of sexually assaulting Patient A, apparently after approximately ten minutes of deliberation. at 3. Although this Court duly notes the swiftness of the verdict in the criminal trial, the Appellant?s criminal trial and its outcome have no bearing on the instant matter the Appellant?s administrative appeal of an agency decision. Courts have consistently held that: trial and conviction in a court of competent jurisdiction is not a Condition precedent to a proceeding by the state board of health against a physician to revoke his license for any of the causes provided by statute. Even an acquittal of a physician in a prosecution for criminal acts does not preclude the institution of proceedings for the revocation of his license to practice medicine based upon the same acts. 61 Am. Jur. 2d Physicians. Surgeons. and Other Healers M9 (2006). As noted by the Rhode Island Supreme Court in the analogous context of attorney disbarment proceedings, ?disciplinary proceedings are civil in nature, designed primarily to protect the members of the public from the actions of attorneys who are unwilling or unable to conform their conduct to the standards of professional conduct adopted by this court for 47 the welfare of the public.? Lisi v. Bashaw, 599 A.2d 1038, 1040 (R1. 1991). The reasoning in extends to medical professionals as well. ?ag, Egg, v. of Med. Examiners, 170 P.2d 510, 514 (Cal. Ct. App. 1946) (holding that a medical board?s decision to revoke a physicians license ?is an administrative, disciplinary proceeding, and is not criminal in its naturejudged by the legal standards applicable to criminal prosecutions?); Thangavelu v. Dept. of Licensing Regulation, 386 584, 589 (Mich. Ct. App. 1986) (holding that ?an administrative proceeding against a [licensed physician] is a different cause of action than a criminal proceeding against the same licensee, even if based on the same facts which resulted in acquittal of licensee in the criminal case?); Younge v. State Bd. of Registration for Healing Arts, 451 346, 349, (Mo. 1969) (holding that ?revocation proceedings by the State Board of Registration for the Healing Arts are not penal? or Like the Supreme Court in Lg, this Court will not. apply the findings of a criminal court with its strict rules of evidence and standards for ?nding guilt only beyond a reasonable doubt to disciplinary proceedings against a professional. Therefore, the Appellant?s argument with respect to the applicability of his criminal trial has no merit. V. - Alleged Incorrect Factual Findings in the Agency Decision The Appellant argues that the Board has made an arbitrary or clearly erroneous I decision based on allegedly incorrect findings of fact. The Appellant cites inconsistencies - between the Administrative Decision and actual testimony and evidence given during the hearing. Speci?cally, the Appellant questions the following allegedly incorrect factual findings: 48 The Administrative Decision found that the Appellant initiated a conversation involving Christmas shopping, although Patient A testi?ed that this conversation did not occur; (2) The Administrative Decision noted that someone removed a television monitor following the completion of the arthroscopic phase of the surgery, but no one testi?ed about this removal. (-3) The Administrative Decision misrepresents the con?guration of the surgical drape; and (4) Patient contacted the Board due to a call from a doctor at Wing Memorial Hospital, not because she read about the Appellant?s Summary Suspension. The Appellant argues that these alleged errors demonstrate that the Board did not base its decision on competent or credible evidence. However, this Court ?nds that the alleged inconsistencies amount only to harmless errors that did not substantially prejudice the Appellant. I An agency must not make arbitrary decisions. C-Line, Inc. United States, 376 F. Supp. 1043, 1049 (D.R.I. 1974). Therefore this Court may set aside agency-decisions that are irresponsible or based on inadequate ?ndings of fact. LL However, in order for this Court to ?nd that the agency acted arbitrarily, the agency must have made a clear error in judgment. Citizens to Preserve Overton Park, Inc. v. Volne, 401 US. 402, 416 (1971). Incompetent evidence becomes prejudicial ?only when it reasonably appears that the incompetent evidence so in?uenced the judgment of the trial justice as to have caused him to rest his decision in whole or substantial part on that evidence.? Corrado v. 49 Providence Redevelopment Agency, 110 RI. 549, 556-557, 294 A.2d 387, 391 (1972) (citing Nugent ex rel. Hurd V. City of East Providence, 103 RI. 518, 528, 238 A.2d 758, 764 (1968); New England Box Barrel Co. v. Travelers Fire Ins. Co., 63 RI. 315, 321- 322, 8 A.2d 805, 808 (1939); New England Transportation Co. v. Doorlev205, 208 (193 In the instant matter, the Board did not render an arbitrary or capricious decision because the record presents reliable, probative, and substantial evidence to support the Board's decision, even without the alleged inconsistent factual ?ndings. Accordingly, the Board?s decision was not clearly erroneous. 7 VI. The Weighing of Evidence and Testimony by the Hearing Committee The Appellant argues that the administrative record provides no competent and credible evidence to support the Hearing Committee?s conclusion that the Appellant molested Patient A. The Hearing Committee found that the Appellant committed an act of unprofessional conduct based on the factual testimony of the alleged victim, hospital staff, a prior patient of the Appellant, and the expert testimony of an anesthesiologist. 7 However, the Appellant highlights instances of supposedly inaccurate, contradictory and incompetent testimony by Patient A the result of Patient A?s misperceptions while under medication. He points to specific instances of witness testimony that allegedly directly contradict Patient A?s allegations. The Appellant also attacks the credibility of Dr. Hittner and her Opinions regarding the dosages of medicatiOns used by the Appellant on Patient A and the supposed Causal link between the medication Propofol and sexual fantasies in patients administered the drug. The Appellant disputes Dr. Hittner?s contention that instances of patients? sexual fantasies while on Propofol are rare'and anecdotal by stressing the case studies and the first-hand 50 knowledge of his own experts. In essence, the Appellant argues that in light of the all the testimony and other evidence presented during the twelve sessions of the Appellant?s hearing, the Board made an arbitrary and capricious decision to revoke the Appellant?s license to practice medicine. The Rhode Island Supreme Court has consistently upheld the limited scope of the ?arbitrary and capricious? standard of review and affords great deference to agency decisions. Goncalves, 818 A.2d at 682-683. "Use of the arbitrary and capricious standard means that reviewing courts will uphold administrative decisions . . . as long as the administrative interpreters have acted within their authority to make such decisions and their decisions were rational, logical, and supported by substantial evidence. Id; (citing m, 144 F.3d at 184). In a ?credibility war? between opposing parties, discrepancies in trial testimony and other evidence contained in the record do not rise to a level to warrant second-guessing a hearing of?cer?s credibility ?ndings unless the hearing of?cer overlooks material evidence or is otherwise clearly wrong. Connor v. Biorklund, 833 A.2d 825, 828 (RI. 2003) (upholding a trial judge?s decision to set aside jury ?ndings in con?ict with those of the trial judge and order a new trial). 7 In the instant matter, the Hearing Committee heard from numerous witnesses. Both Patient A and the Appellant testi?ed before the Hearing Committee. The Hearing Committee also Considered testimony from doctors and nurses acquainted with the incident, as well as Patient B, who alleges that Appellant sexually molested her while under his care. Both sides also presented expert testimony from professional anesthesiologists regarding the Appellant?s treatment of Patient A and the dosages and effects of the medications he administered to her. Additionally, the Hearing Committee 51- reviewed dozens of exhibits, including medical literature. Furthermore, throughout the hearing, the Appellant had the opportunity to call witnesses on his behalf and submit evidence to substantiate his claims and refute those of Patient A. As required by statute, the Hearing Of?cer personally conducted all twelve sessions of the hearing. Moreover, the Hearing Of?cer provided a detailed proposed ?ndings of fact, as well as a thorough analysis of these ?ndings. The Hearing Officer explained in considerable detail the evidence that the Hearing Committee used in adopting its decision. The members of the Hearing Committee all signed an af?davit certifying that they reviewed the entire record before rendering their decision. Moreover, one Hearing Committee member attended all twelve hearings, even though sec. 5-37- only requires committee members to ?read the transcript and review the evidence.? Furthermore, all members of the Hearing Committee and the Hearing Of?cer personally observed the testimony of Patient and could directly assess her credibility. Upon a full examination of the Hearing Committee?s decision, this Court ?nds that the Hearing Committee?s determination that Appellant committed unprofessional conduct in the practice of medicine was not arbitrary and capricious. CONCLUSION After thoroughly reviewing the entire record, this Court holds that the Board based its decisions on reliable, probative, and substantial evidence in the record and that its ?ndings were not affected by error of law. The Board?s decision was not arbitrary or capricious or characterized by an abuse of discretion. Thus, the Appellant?s substantial rights have not been prejudiced. For the reasons stated above, this Court af?rms-the Board?s decision ?nding that the Appellant sexually molested Patient A in violation of 52 sec. 5?37-51, both in general and speci?cally subsections (7), and (30) thereof. Counsel shall prepare an appropriate judgment for entry. 53 STATE OF RHODE ISLAND AND PROVIDENCE PLAN TATIONS BOARD OF MEDICAL LICENSURE AND DISCIPLINE CASE NO. C04-904 IN THE MATTER OF RUSSELL J. AUBIN, D.O. LICENSE NO.: DO 0522 ADMINISTRATIVE DECISION The above entitled matter came on for hearing on diverse dates before a hearing of?cer and hearing panel who were appointed by the Director of Health.1 TRAVEL The Respondent is a doctor of osteOpathy licensed to practice in the State of Rhode Island. He is an anesthesiologist who was working at Kent County Hospital at all pertinent times herein. On' or about December 29, 2004 the Board of Medical Licensure and Discipline (hereinafter ?Board?) received noti?cation that the Respondent had been suspended from the medical staff at Kent County Hospital following an investigation into allegations that the Respondent had sexually molested a 21 year old female patient for whom he was providing anesthesia during operation that occurred on December 23, 2004. After a preliminary inVestigation, pursuant to 5-37-8, the Director of Health issued an order summarily suspending the Respondent?s license to practice medicine in this state, effective January 11, 2005. As required by statute, the Board then issued a 1 Pursuant to a hearing of?cer appointed by the Director of Health is charged with conducting the hearing, writing proposed ?ndings of fact and conclusions of law and recommending a sanctiOn, if warranted. The hearing panel is charged with reviewing the transcript and making a ?nal decision after deliberation. notice to the Respondent for a hearing to be conducted on January 21, 2005. The Respondent requested a continuance of that date to February 18, 2005, on which date the hearing was commenced. Thereafter, the proceedings continued over the course of several months durin which time there were several more continuances granted due to the unavailability of Respondent?s counsel. The evidentiary hearing concluded on August 17, 2005 with both parties requesting additional time for the ?ling of post hearing memoranda. SUMMARY OF THE EVIDENCE AND FINDINGS OF FACT The Summary Suspension Order issued by the Director of Health on January 11, 2005 charges that the Respondent engaged in unprofessional conduct by sexually molesting a female patient while she was undergoing knee surgery on DeCember 23, 2005, that he violated professional boundaries by asking a patient out on a date,2 and that he engaged in unprofessional conduct by asking a female hospital employee to view pornography with him in his ?on-call? room at the hOSpital.3 9? The parties presented several witnesses on the issue of whether the Respondent engaged in unprofessional conduct by asking an anesthesia patient out on a date. There was also con?icting testimony as to how the Respondent obtained the patient?s telephone number. The Respondent claimed that the patient?s relative provided him with the telephone number and urged him to call her. The relative denied that she did so, and the State asserted that Respondent obtained thepatient?s telephone number from her medical chart. Given the ultimate outcome of this matter, the Board deems it unnecessary at this time to decide whether a violation of ethical boundaries occurs when an anesthesiologist, subsequent to the provision of anesthesia and after discharge, contacts the patient for a date. Notwithstanding that fact, the more credible testimony was persuasive that the contact was not initiated by the patient or her relative, but rather by the Respondent himself. 7 3 The testimony is in con?ict on this issue also. The Board declines to determine herein whether accessing pornographic websites while ?on-call? within a private room within the hospital that was reserved for the Respondent constitutes unprofessional conduct. The Respondent_admitted that he had accessed pornographic websites, that he was subsequently advised by the hospital administrator that doing so violated hospital policy and that thereafter he did not engage in that activity while in the hospital. That testimony by Respondent is supported by the testimony of Kent?s network specialist who was called to testify for the State. For purposes of this Decision the hearing of?cer and hearing panel focused on the charge that the Respondent sexually molested a patient in his care. For its ?rst Witness, the State called upon the Respondent to testify as an adverse witness. The Respondent provided some general background information in reSponse to the State?s inquiry. However, in response to questions that were speci?c to the allegations set forth in the Summary Suspension Order,the Respondent invoked his 5th Amendment rights, citing an ongoing criminal investigation by the Of?ce of Attorney General.4 The second witness called by the State was the patient who the Respondent is' accused of sexually molesting. The patient is a 21 year old college student who injured her knee in October 2004 while playing collegiate soccer. The patient consulted with her primary care physician who referred her to Dr. for surgery to repair her torn ACL. The surgery was scheduled for December 23, 2004 at Kent County Hospital. The patient testi?ed that she ?rst met the Respondent on the morning of the surgery in the pre?operativeanesthesia room. The patient chose a spinal anesthetic over general anesthesia so she would remain awake during the procedure. The patient was moved to the operating room where the surgery was commenced. The patient testi?ed that she was wearing a blue johnny that opened in the back. She was lying ?at on the table with her legs extended; Between the patient and the surgeon, there was a vertical drape that was located at or around her ?belly button? that extended to a height above her so as to 4 After completion of the State?s case, the Respondent did testify as part of his defense. The State was permitted to fully examine the ReSpondent at that time without limiting its questions to matters brought forward in the direct examination. preclude her from seeing the surgeon and vice versa. The initial part of the surgery was arthroscopic and the surgeon had the drape lowered so she could see that part of the surgery on a television monitor. The patient testi?ed that she was awake, alert and Speaking to the surgeon during this part of the procedure. The Respondent was near her at the head of the bed on her side of the drape. After the arthroscopic portion of the surgery was completed, the television monitor was removed and the drape raised so that the patient could not see the more invasive portion of the surgery. The patient testi?ed that the Respondent was behind her at the head of the bed. Once the drape was back in place, the patient stated that the Respondent began to massage her neck and shoulders with both hands. The patient stated that she was not in any pain and had not requested the ?massage?. In fact, she was confused by the Respondent?s actions, wasn?t sure if the massage was part of the procedure. The Respondent next began to touch her breast under the johnny. He bent down close to her face and told her not to tell anyone or he could lose his job. The patient asked Respondent if he did this all the time, to which he responded, ?No, I just couldn?t control myself?. The patient testi?ed that the Respondent told her at least three times that he would be in trouble if she told anyone. After her conversation with the Respondent, the patient fell asleep and did not awaken until she was being moved from the operating room to the recovery room. _She was greetedby two I'nurses, one female, one male. When the male nurse left the room the patient con?ded to the female nurse what had transpired in the operating room. The nurse then reported the incident to hospital administrative staff, who in turn, asked the patient to recount her story. She did so several times that day. On cross-examination, Respondent?s counsel tried to intimate that the patient - mistook the ReSpondent?s handling of the EKG leads and electrodes on her body for his having fondled her breast. The patient readily testi?ed that there were electrodes placed on her chest to which the Respondent attached leads for monitoring purposes. She testi?ed that as he attached the leads, the Respondent acted professionally and appropriately. During the arthroscopic portion of- the Surgery, the patient was able to watch the procedure on a monitor. Upon conclusion of that aspect of the surgery, the monitor was removed and the vertical surgical drape was raised occluding the patient?s view of the surgical staff and vice versa. It was at that time that the patient clearly recalls being assaulted by the Respondent. She testi?ed that at the time, there were two female nurses and the surgeon on the other side of the drape. She and the Respondent were alone on their side of the drape. Respondent?s counsel inquired as to why the patient 'did not immediately cry out to alert others that the Respondent was aeting inappropriately. The patient testi?ed that she was afraid that any movement or sOund she made would distract the surgeon, thus exposing her to injury. I The next witness called to testify by the State was John R. Audette, MD. Dr. Audette is the Vice President for Medical Affairs at Kent CountyHospital, and he had been so for approximately four years prior to the subject incident. Dr. Audette testi?ed that he initiated an investigation of the patient?s complaint immediately upon learning of it. He interviewed the post-operative nurse, the circulating nurse who was in the Operating room during surgery, Dr. and several other staff members. Dr. Audette testi?ed that among those present in the interviews was the hospital?s Vice President for Risk Management. He lead the interviews, encouraging all to tell a complete story. Following those interviews, they met with the Respondent to get his side of the events. Dr. Patrick and Dr. Andreani were present for the meeting with the Respondent.5 The Respondent admitted to the group that he had given the patient a neck and shoulder massage and told them that was his routine for patients who had epidural anesthesia when delivering babies by section. He implied to the group that he could extend the massage therapy to other surgical patients who received local anesthetics. The ReSpondent told the group that in addition to the spinal, he had administeredother drugs to the patient throughout the procedure, most notably, versed and prepofol. In the meeting with the Respondent, one of his anesthesia group associates, Dr. Andreani offered that it was his experience that propofol could cause patients to think strange things, e. g. a patient might wake up thinking that he had been chopping wood in the backyard. The Respondent did not reply to his colleague?s remarks. After his interviews with staff and the Respondent, Dr. Audette went to meet with the. patient and her family. Dr. Audette testi?ed that he found the patient ??illy aware?, ?communicative? and ?intelligent?. Dr. Audette suggested to the patient that the anesthesia drugs may have caused her to believe that the Respondent had assaulted her, when in fact he had not done so. Dr. Audette testified that the patient described in detail that the Respondent had started massaging her neck and shoulders, then moved his hands down to fondle her breasts. She told Dr. Audette that she was aware of the placement of the EKG leads and they had nothing to do with Respondent?s touching her breasts. Dr. Audette stated that the patient was offended that he would suggest that she didn?t know 5 The anesthesia staff at Kent County Hospital is not employed by the hospital. Rather, it is a private independent group that contracts with the hospital to provide anesthesia services. the difference between a touching of the EKG leads and fondling her breasts. Upon completion of his interview with the patient, Dr. Audette concluded that the patient?s story was credible. Administrative staff at the hospital then asked the Respondent to take an administrative leave ?om work at the hospital. The Respondent agreed. Dr. Audette testi?ed that placing the Respondent on administrative leave would not require reporting the circumstances to the Department of Health and would give the hospital an opportunity to ?sort things out? without continuing the Respondent on the premises. The State?s next witness was Susan Kelliher, R.N. Nurse Kelliher was employed at Kent County Hospital as the recovery room nurse on December 23, 2004. Nurse Kelliher saw the patient when she arrived in the recovery unit (also known as post anesthesia care unit after her surgery. The patient was brought to the recovery room at approximately 11:40am. The patient was awake, but spinal anesthesia was in effect. The patient was numb from the waist down. Upon her arrival, the patient was evaluated every 15 minutes to determine whether sensation was returning to her lower extremities. Nurse Kelliher went to lunch sometime between 12:20pm and 12:30pm. At 12:35pm a nursing note (made by'someone in Nurse Kelliher?s absence) stated that the patient?s eyes were closed, maybe sleeping, maybe just resting her eyes. The next nursing note by Nurse Kelliher was at 13: 15pm. At 13:30pm the patient reported to Nurse Kelliher that someone at the ?top of the bed? had inappropriately touched her during her surgery while the surgical screen was up and no one else-could see it. The recovery room nurse testi?ed that she? immediately noti?ed the charge nurse. Both she. and Dr. Patrick then came to speak with the patient. The patient reiterated her Story to them and told them that the person who had touched her was the same one who had given her anesthesia. The patient denied to the three of them that she had complained of neck pain or discomfort as would warrant the neck massage. She repeated that she did not cry out or alert anyone as to what was going on during the surgical procedure as she was afraid to disrupt the procedure. She also stated that she was ?ashamed? and ?embarrassed?. The patient and the Respondent were on the other side of the surgical screen (or drape) where no one could see them. The patient felt that no one would believe her if she said anything. While recounting her story, the patient was tearful, crying, upset and she developed blotches. On cross-examination, the nurse testi?ed that when the patient ?rst anived in the recovery room, she was alert, oriented and communicative. She was talking, but said nothing about the incident until 1:30pm.6 Martha Galeota, R.N. was-the next witness. She participated in the surgical procedure to a limited extent. Nurse Galeota worked as the circulating nurse while the primary circulating nurse was on coffee break. Therefore, she was present during the surgery for only a brief amount of time (approximately 15 minutes). It is the circulating nurse?s responsibility to keep an accurate record of the patient and surgical procedure and to assist the operating room nurse and surgeon to the extent that she is required to do 50. Nurse Galeota testi?ed that when she came into the operating room she got a report from the primary circulating nurse on duty and then began completing her paperwork of the progress of the patient and surgical procedure. The witness stated that she observed the RespOndent at the head of the of the bed with the patient. She testi?ed that the Respondent was very close to the head of the bed, leaning forward over the bed and very 6 The patient?s testimony was that when she arrived in the recovery room there was a male nurse present also. She did not say anything until he left at which time she con?ded in Nurse Kelliher. close to the patient. She did not observe what the Respondent was doing or hear whether he said anything to the patient. However, she testi?ed that the Respondent was hovering close to the patient in an ?intimate? manner. The nurse testi?ed that the Respondent was leaning over the patient with his arms on the bed, but the surgical drape (screen) prevented her from seeing his hands. Nurse Galeota then went to the foot of the .bed to assist the surgical team. The witness observed that the Respondent was seated next to the head of the patient?s bed at all times when she was in the room. The nurse did not hear anyconversation that may have taken place between the patient and the Respondent. However, she testi?ed that the Respondent?s head was very close to the patient as if a conversation was in progress. Mark Patrick, MD. was the next witness. Dr. Patrick is the managing partner of the Respondent?s anesthesia group. Dr. Patrick was on call in the hospital from 7:30am on December 23, 2004 through 7:30am on December 24th. On the afternoon of the 23rd, he was approached by a nurse from the PACU who asked to speak with him. She advised him in general terms about the patient?s complaint and he immediately went to see her. When he arrived in the PACU, the patient was ?sobbing?. She told him that the man at the head of her operating room bed who gave her anesthesia ?rubbed? her breasts. The patient stated that she had been trying to ?put it out of her head?, but couldn?t, so she ?nally spoke to, someone about it. She said the man kept asking her if she had a . boyfriend. He also told her that he couldn?t control himself and asked her not to tell anyone. The patient told Dr. Patrick that she was afraid to tell anyone as it was happening for fear the surgeon would injure her knee. Dr. Patrick testi?ed that while he .was talking with the patient, the ReSpondent came into the recovery room with another patient. As soon as the Respondent started speaking, the patient said to Dr. Patrick, ?That?s him, that?s the voice. I?ll never forget it?. Dr. Patrick said he asked the patient about the placement of the leads and wires. He testified that the patient then put up her hands and told him in no uncertain terms that the fondling of her breasts had nothing to do with the EKG leads, that they were attached in the beginning and that the assault took place during the surgical procedure. Dr. Patrick was then questioned relative to the drug regimen that had been given to the patient. Dr. Patrick examined the patient?s record which formed the basis for his testimony. The doctor testi?ed that the patient met with Dr. Misra for her pre-operative anesthesia screening. The patient chose a spinal anesthetic rather than general anesthesia. Dr. Patrick explained that a ?spinal? and an ?epidural? anesthetic were essentially the same thing in that they are local anesthetics. The two differ in the point of injection. The patient was administered 1% tetracine at the L4 interSpace. The expectation with this administration is that the patient would have numbness and lack of mobility ?om T10 to R5. That is, the patient would be numb and unable to move below the waist. The patient was administered 2mg of versed in the holding area before she went to surgery. In the surgical suite, the spinal was administered to the patient. Interoperatively, the patient was given 3 more dosages of versed 2mg which was injected at three different timesduring the Operation. Dr. Patrick explained that versed is an anti-anxiety mediation that reduces stress and produces amnesia. The patient was also administered propofol, 50mg at 9: 15am and another 50mg at 9:50am. Dr. Patrick was also asked about placement of EKG electrodes and wires. Though the patient?s record did not indicate the number of leads that were placed, three would be typical. Ollie lead would be placed just below each 10 shoulder and the third under the left arm, a little toward midline near the armpit. He testi?ed that the leads would never be placed on the breasts, but they would be close to them. The next witness pertinent to the sexual assault allegation was the operating surgeon, Danny Dr. testi?ed generally about the procedure and what transpired during the surgery. He was unable. to offer any evidence that supported or disputed the patient?s allegations of unwarranted touching because he was on the opposite side of the drape and could not see the patient?s upper body. Dr. did state, however, that he was able to hear some limited conversation between the Respondent and the patient. His impression was that the Respondent?s conversation was too friendly. He thought that the questions Respondent posed to the patient would be more appropriate coming from a person closer in age to the patient. Dr. didn?t pay particular attention to the details of the conversation. He felt that the Respondent may have been trying to allay any fears that the patient had about undergoing surgery. On cross-examination, Dr. testi?ed that there is adoor opening up into the surgical suite from the hallway. The door has a window in it and is located right behind the area where the Respondent and patient. were located at the head of the bed. He testified that anyone passing by the window could look into the room. However, he disputed that the Respondent and patient would be in plain view of anyone looking into the window. He stated that the anesthesia apparatus is a large piece of equipment that extends inward toward the bed, thus obstructing the view from the window in the door. Dr. did testify that people do come through the door during surgery. Neither he nor the Respondent control access to the room. 11 The next factual witness relevant to the allegation of sexual abuse was a female surgery patient for whom the Respondent had provided anesthesia in August of 2000 while he was working at Wing Memorial Hospital in western Massachusetts.7 On the date of the surgery at Wing, the patient was 24 years old, a single mother. She went to the hospital for the surgical removal of a on her left wrist. The Respondent provided anesthesia to her. The patient testi?ed that her upper body was on one side of a surgical screen. The surgical screen rose vertically to obstruct her view of the surgical team on the other side of the screen. Her left arm was extended through a hole in the drape (or screen) so that the surgery could take place on the sterile side of the screen. The Respondent remained with the patient at the head of the bed on the non-sterile side of the screen. The patient stated that she was sedated and fell asleep for about 15 or 20 minutes, after which time, she awakened. The patient testi?ed that the Respondent then began a conversation with her. He asked if she were single and whether she had any children. He then commented about a small tattoo the patient had on her neck. He asked her if she had any more, and she told him that she had one on her stomach. He asked if he could look at it, and she said that he could. Instead of looking at the tattoo, however, the Respondent then placed both of his hands on the patient?s chest and began massaging and squeezing both of her breasts. He then asked the patient if he could play with her breasts. She said no. At that point, the Respondent leaned down closer to the patient and whiSpered into her right ear, ?Don?t tell anyone. I could get in a lot of trouble?. The patient testi?ed that she didn?t tell anyone. She was afraid and wanted to leave the hospital as fast as she 7 This woman read about the Respondent?s Summary Suspension in Rhode Island and contacted the Board during the course of the proceeding. She had a similar experience with the Respondent. Counsel for Respondent argued that her testimony should be excluded under 42-35-10(a) and Rule 404(6) of the Rhode Island Rules of Evidence. This hearing of?cer disagreed and entered a written Interim Order on April 26, 2005 (copy attached to this Decision). 12 could. The patient?s grandmother came to the hospital to take her home. Once there, the patient told her grandmother what the Respondent had done to her. The patient then called her parents, both of whom immediately came home ?om work. The patient reported the incident to the local police that same day, The patient also reported the incident to Wing Memorial Hospital. She was initially interviewed by the Medical Director of the hospital,_then subsequently by a six-person investigatory team ?om the University of Massachusetts Medical Center.8 The patient testi?ed that she was not satis?ed with the investigation because the team kept focusing on whether the assault she described-really happened. They did not appear to believe her. The patient testi?ed that she wanted the police to charge the Respondent, but they didn?t do so. She does not know why the police concluded their investigation without charging the Respondent. Likewise, the hOSpital took no action as far as the patient knows. The patient did not initiate any legal action against the Respondent, nor did she attempt to obtain any money ?'om him. She stated that she reported the assault to the police and hospital authorities because she didn?t want to be a ?victim?. The Respondent presented testimony from Karen Stitsinger_who was the circulating nurse in the surgery that was performed at Wing Memorial Hospital. The witness was adamant in her testimony that, as the circulating nurse on that day, she was able to View the patient and the Respondent at all times. She did not observe any untoward activity on the part of the Respondent. The evening of the surgery, the nurse was contacted by a supervisor who inquired whether anything unusual had transpired that day in the operating room. The witness stated that she had no idea what the supervisor was talking about, that she had observed nothing unusual that day. A few days later a 8 Wing Memorial Hospital is apparently an af?liate of the University of Massachusetts Medical Center. 13 hospital vice president asked her again whether she had observed anything out of the ordinary during the patient?s surgery. The witness replied that she had seen nothing. A few days or perhaps a week after her talk with the vice president, the witness was summoned to the hospital of?ce where she was again interrogated about the surgery. The witness stated that it was on that date that she ?rst learned of the patient?s allegation that she was sexually assaulted by the Respondent. The witness testi?ed that she was friendly with the Respondent, that he once gave her anesthesia, and that after he left the employ of Wing Memorial Hospital she had talked to him several times, once seeking a reference from him and at other times just to gossip. The Respondent presented testimony from Michael J. Infantolino, MD. Dr. Infantolino participated in the December 23rd surgery. Dr. was the primary surgeon and Dr. Infantolino was the ?rst assistant. He testi?ed that he is very familiar with the drugs propofol and versed. They are the medications that are commonly used in surgery. Dr. Infantolino testi?ed that he sat on the patient?s left side, near her hip and on the sterile side of the drape. As surgeons, Dr. Infantolino Stated that he and Dr. concentrate their attention on the surgical area (in this case, the patient?s knee), but they note all activity of the patient. From where Dr. Infantolino was sitting, he could wheel his stool in and out of the of the sterile ?eld. He could look at the patient and the Respondent at any time. Dr. Infantolino indicated that he neither saw, nor heard, anything unusual during the operation. He testi?ed that he recalls arriving in the operating room just after the surgery had commenced, although it is possible that he was there at the outset. He can?t speci?cally recall. He likewise was not sure that he stayed in the operating room for the duration of the surgery; may have exited early. 14 Anecdotally, Dr. Infantolino testi?ed that he himself had undergone- similar surgery for repair of a torn ACL. During the procedure, the doctor testi?ed that he experienced a sore neck. The attending nurse anesthetist (CRNA) massaged his neck and applied traction at that time. Dr. Infantolino?s take on the allegation against the Respondent was that it was ?ludicrous? to think that the Respondent could have assaulted the patient in a room full of people. I The last factual witness presented by the Respondent was Lee-Ann alcone, RN who was the circulating nurse at the December 23rd surgery. Nurse Falcone testi?ed that it was her responsibility to take care of the patient, assist anesthesia, provide sterile 1 equipment and operate equipment as needed, keep notes and to move about the room. The nurse testi?ed that her ?station? is to the patient?s right side, about six feet away from the anesthesia provider, on the non-sterile side of the screen. In this case, the nurse estimated that she Spent approximately 15% of her time in that position. The remaining 85% of the time she was hanging ?uids, running equipment, making notes, etc. She did not speci?cally hear or see the Respondent say or do anything inappropriate. On cross-examination, nurse Falcone described the Sterile drape as being about six feet wide across the patient?s upper body. The drape covered the patient?s arms, not her chest. The height that the drape rises vertically above the patient?s body is approximately two feet. The patient?s head, lying on the operating room table is about four feet off the ?oor, so the sterile- screen is about six feet high from the ?oor. The nurse testi?ed that the anesthesia giver usually sits behind the patient?s head and cannot be seen on the sterile side of the drape. During the surgical procedure, the anesthesia care giver cannot see the surgeons, nor can the surgeons see the anesthesia person. .Nurse 15 Falcone testi?ed that at the conclusion of the operation, the patient was awake and speaking to the surgeon about the surgery. Nurse alcone did not hear the patient say that anything had happened to her during the procedure. Although the Respondent refused to answer questions posed to him by the State when Respondent was initially called as an adverse witness, the Respondent thereafter did?take the witness stand and testify in the defense portion of the case. The Respondent provided extensive testimony Concerning the allegations that he inappr0priately accessed pornographic websites while at work in Kent County Hospital. The witness essentially admitted that he engaged in this activity while he was off duty but on-call in the hospital. Once advised by hospital administration that sur?ng pornographic websites was against hospital policy, there is no evidence that the Respondent engaged in this activity at the hospital again. Likewise, the Respondent admitted that he had tried to arrange a date with a person to whom he had administered anesthesia, although the Respondent?s testimony was that he did so at the behest of the patient?s relative who worked at the hospital. The relative disputed that testimony and intimated that the Respondent gained access to the patient?s telephone number via the patient?s medical record. - I The Respondent testi?ed that he became aware of the patient?s complaint late in the day on December 23rd when he was interviewed by Drs. Patrick, Audette and Andreani in conjunction with the Risk Manager, Mr. DePietro. The Respondent testi?ed that he didn?t recall what explanation he gave when he was interviewed. The Respondent does admit that he gave the patient ?neck traction? and stated that he used that term interchangeably with ?neck massage?. Dr. Patrick testi?ed that the Respondent told him 16 that he gave the patient a neck massage. There is a difference between neck traction and neck massage. The ReSpondent stated that when applying the neck traction with respect to this patient that at no time were his hands under the sheet. In response to Nurse Galeota?s testimony that she could not see his?hands, the Respondent testi?ed that perhaps they were under the patient?s head or obscured by the pillow. The Respondent also disputed Nurse alcone?s testimony that the sterile drape rises off the patient?s chest area at a 90 degree angle. The Respondent stated that the angle was less severe allowing him to see above it. The Respondent recalled that it was Dr. Andreani who suggested that the medications administered to the patient may have caused her to hallucinate the whole sexual touching. With regard to the allegations surrounding the Wing Memorial Hospital surgery, the Respondent denied any wrongdoing. .He could not recall speci?cally the medications that were administered during that surgery. He thought probably versed and couldn?t recall propofol. At any rate, he stated that he was interviewed regarding the incident and that nothing further came of it. With reSpect to medications, the Respondent testi?ed that he is a ?minimalist?. He does not give more medication than is required. In the Wing surgery, be guessed that he had given versed and couldn?t recall what else, if anything. With respect to the Kent surgery, the Respondent administered four separate dosages of versed at 2mg, one pre- operative and the other three during the course of the procedure. He also administered two dosages of propofol at 50mg and, at the end of the surgery, benadryl for itching. l7 In addition to factual witnesses, both parties presented witnesses who are expert in the anesthesiology ?eld. The State produced testimony from Kathleen Hittner, MD. Dr. Hittner testi?ed that she worked as a ?ill'time anesthesiologist from 1979 until 2000, when she assumed the presidency of Miriam Hospital. Dr. Hittner is a diplomat of the American Board of Anesthesiologists. Dr. Hittner testi?ed that despite her position as president of a hospital, she nevertheless practices anesthesia at least one full day per week and more if the anesthesia department needs additional help. Dr. Hittner is also a ?ll] Clinical Professor of Anesthesia at Brown University Medical School. Dr. Hittner testi?ed that she is very familiar with the drugs versed, propofol and fentanyl. She testi?ed that when propofol was introduced to the market, she was employed as the Chief of Anesthesia and that she initiated use of the drug at Miriam. She stated that she has administered propofol in ?thousands and thousands of cases? in various operating room settings. She further testi?ed that she has used propofol in ?every dose that is required for sedation of a I patient?. In support of Respondent?s case, the defense placed into evidence several published articles of case studies involving the administration of propofol and associated patient fantasies, speci?cally those that were sexual in nature. Dr. Hittner was asked by the State to comment on the articles, from her own experience as an anesthesiologist and as the supervising Chief ofa group of anesthesia providers. Dr. Hittner testi?ed that despite thousands and thousands of cases wherein she administered propofol, there were - only two cases wherein she could recall anything happening of a sexual nature. In the - case of one male patient, he ?pinched? her backside. Another patient, a female reached, reached out to touch her. Other than those two experiences, she has not observed, nor did 18 she receive any reports of similar cases. She further stated that these two instances occurred during the period of time in which use of propofol was in the beginning stages. As time went on and more was learned about the drug, it became common to sedate patients using a combination of drugs, propofol and something else, versed e. g. Dr. Hittner testi?ed that in preparation fer her testimony, she had consulted the Physicians Desk Reference (PDR) concerning the use and effects of propofol. The statistic cited on the PDR are that the occurrence of sexual fantasies with use of propofol is less then Dr. Hittner further stated that there have been no documented controlled experiments regarding the use of pr0pofol and that the literature is not scienti?c, but rather is composed of reported case studies. The case studies, she testi?ed, can be broken down into two speci?c types of fantasies. In the ?rst type, the patient reaches outto the medical personnel either verbally or physically. In the second type, the patient feels she has been assaulted sexually. Case studies have revealed that the incidence of these fantasies occurs in cases wherein the surgical procedure involves a part of the body normally identi?ed with sexual acts. Dr. Hittner gave examples of an endoscopy, I involving insertion of a tube in the patient?s throat wherein the patient fantasizes that she has had oral sex, or surgery involving the placement of vaginal sponges wherein the patient fantasizes that she has had intercourse. Dr. Hittner stated that the introduction of the use of versed in conjunction with propofol reduces the tendency of patients to act out. Dr. Hittner was asked to compare the reported cases to the incident reported by the Kent County Hospital patient. Dr. Hittner stated that to a reasonable degree of medical certainty she could differentiate the case studies from the allegations against the . Respondent. Dr. Hittner testi?ed that the patient?s allegations differ substantially from 19 the cases that Dr. Hittner personally observed and from the reported case studies. In Dr. Hittner?s personal experiences, and as home out by the case studies, the sexual fantasy comes about from a release of the patient?s own inhibitions that causes the patient to act out or to say things that a person would not otherwise say. In the instant case, the patient reported that the Respondent initiated a conversation with her, asked about her boyfriend and Christmas shopping, progressed to massaging her neck, then fondled her breasts and told her not to say anything. Dr. Hittner testi?ed that the patient?s allegations do not ?t any of the reported case studies. Dr. Hittner also stated that though she found the ?massage unusual?, the patient seemed okay with it. The Respondent admitted that he did massage the patient?s neck and shoulders. Given that the patient understood and agreed to the massage, it is then even more dif?cult to believe that the patient then imagined the physical touching and the Respondent?s admonition that she not tell anyone. In reviewing the patient?s medication record, Dr. Hittner testi?ed that she did not ?nd a problem with two dosages of pr0pofol, 50mg. However, she stated that the four dosages of versed were more than she would have used, and the administration of benadryl near the end of the operation was also unusual. She stated that from the patient?s record and the anesthesia record, it appeared that the initial dosage of versed in tandem with two administrations of prOpofol were suf?cient for the. procedure. The patient stated that after the Respondent fondled her breasts and admonished her not to disclose it to anyone, she fell asleep. Dr. Hittner?s opinion was that the additional dosages of versed were administered to make the patient sleep and forget what happened. The addition of benadryl furthers that purpose. 20 As to the physical aSpects of the operating room and the placement of people therein, Dr. Hittner testi?ed that in this case, the surgeons would have been on the sterile side of the drape outside the view of the patient and anesthesiologist. The anesthesiologist had access to the patient ?om her head to almost the waist area and could reach under the patient drape.9 On cross-examination by Respondent?s counsel, Dr. Hittner reiterated that the case studies proffered by the defense are merely that, anecdotal stories without scienti?c foundation. Dr. Hittner also pointed out that the articles suggest that reports of the hallucinogenic properties of propofol are often used to disguise incidents of patient abuse. Further, the articles speci?cally state that the case studies should not be used in defense of criminal charges of sexual abuse. Further, upon cross-examination, the doctor stated that she did not believe that the removal of the EKG leads could serve as the stimuli that would provoke a sexual fantasy inasmuch as standards in the practice dictate that the electrodes would have been placed above the breast area, higher on the chest. Dr. Hittner also noted that the Respondent charted itching and administered benadryl. The doctor said she was skeptical about the itching. It was not charted by the operating room nurse, nor was it reported in the recovery room or anywhere except the anesthesia chart. Dr. Hittner reiterated her opinion that the benadryl was administered to make the patient sleep and forget what happened to her. The doctor testi?ed that between the propofol and the spinal anesthetic (fentanyl) that were administered, she believes versed was excessive. 9 The patient drape covers the patient like a blanket. It is distinguished from the surgical or-sterile drape which is at a 90 degree angle to the patient separating the patient?s upper body from the surgical ?eld. 21 Dr. Hittner did not provide any testimony with respect to the Wing Memorial Hospital surgery as the circumstances involving that incident became known to the State only after the witness? testimony. The Respondent presented William Dodd, a CRNA as one of his expert witnesses. The witness has been a CHNA for 30 years. Mr. Dodd testi?ed?that he has used propofol in his cases on a daily basis for approximately the last 20 years. He reported that in 2005, he attended at a surgery that involved the administration of general anesthesia and an airway mask. He testi?ed that when he removed the airway mask, the patient exclaimed, ?God, that was the best sex I ever had?. Mr. Dodd further testi?ed that in operations such as the one performed at Kent, the dosages of medications administered by the Respondent were standard operating procedure. on cross-examination, the witness testi?ed that he does not usually engage in conVersations with his patients. The RespOndent?s second expert was Frederick Burgess, MD. Dr. Burgess is board certi?ed in anesthesia and has a bachelor?s degree in pharmacy. He testi?ed that he examined the anesthesia record of the December 23rd surgery. He stated that he was familiar with versed and that it came into use in about 1986. He is,,a1so familiar with the use of propofol which came into popular use in about 1990. He stated that he assists in operations similar to the subject one on a basis. He utilized versed and propofol in literally every operation. Dr. Burgess testi?ed that the combined use of versed and propofol is common practice. He explained that versed is used to put the patient out and to diminish pain. Propofol is given to make the patient wake up with less of a 22 ?hangover?. The doctor further testi?ed that itchiness is often associated with the use of narcotics and that the administration of benadryl is the most usual treatment. Dr. Hittner acknowledged that fact in her testimony, too. Dr. Burgess testi?ed that conversation between the anesthesia giver and the patient is not unusual and, in his opinion, is preferred as it places the patient at ease and distracts the patient from the pain. Dr. Burgess was questioned about the neck massage/traction. He responded that it was not unusual to keep the patient comfortable. He explained that patients who receive spinal blocks that create numbness and prevent movement can become stiff and uncomfortable. Dr. Burgess was questioned at length about the anesthesia articles that had been introduced into evidence by Respondent?s counsel. Dr. Burgess testi?ed that the literature would suggest that patients who receive lighter drug dosages are more likely to dream and that, with the use of propofol, rapid recovery from the effects of the anesthetic might permit verbal communication before the patient had forgotten the dream. On cross-examination, Dr. Burgess acknowledged that absent a complaint of pain from the patient, he would not introduce neck traction or massage, but he admitted another might do so. CONCLUSIONS The Respondent is charged with unprofessional conduct that he is alleged to have sexually molested a female patient while he was administering anesthesia to her. Certainly, if true, the Respondent?s conduct is at a minimum in violation of 5?3 7-5 .1 generally, and speci?cally subsections and (30) thereof. The testimony given by the patient relative to the Kent County Hospital is both credible and compelling. The patient testi?ed in signi?cant detail as to what was said between herself and the 23' Respondent and what was done to her. She testi?ed that the Respondent initiated a conversation with her about her boyfriend and her Christmas shopping. The patient did not express any discomfort of her neck or shoulders, but she did acquiesce in the Respondent?s suggestion that he give her a massage (see testimony of Dr. He then moved his hands down to her breast and began fondling or rubbing them. When the patient asked the Respondent if this is something he routinely did, the Respondent told her he couldn?t help himself. He then leaned down closer to her and told her not to tell anyone because, if she did so, he would be in a lot of trouble. The patient then said she fell asleep and did not wake up until the surgery was completed. In addition to the patient?s testimony, Dr. Hittner?s observations were noteworthy. Dr. Hittner has been administering anesthesia for, in excess of 25 years, since 1979. The Board accepts Dr. Hittner as an expert in her ?eld despite Respondent?s attempt to characterize her as an anesthesiologist turned administrator. Dr. Hittner testi?ed that while the Respondent did utilize limited dosages of versed and propofol to sedate the patient, in her opinion, the . amounts used in combination were excessive. She noted that the initial administration of versed followed by two hits of propofol were suf?cient to numb the patient and mask the pain. More medication was not necessary. Dr. Hittner correctly noted that the addition of more versed would bring on sleep and possibly cause the patient to think that she had not been awake at all. Dr. Hittner also noted that benadryl would contribute to the patient?s sleep and amnesia upon waking. She questioned why the nurse?s notes made no mention of the ?itchiness? for which the Respondent claims to have given the patient the benadryl. Dr. Hittner surmised that the ReSpondent administered the later dosages of versed and ?benadryl in the hopes that the patient would not remember what Respondent 24_ had done to her or would believe that it had been a dream. Dr. Hittner also was quick to note that the-Respondent admitted to having a conversation with the patient and to giving her a neck massage. She questioned why the patient would be so clear on that part of her recollection and not on Respondent?s actions that followed. In other words, the i - Respondent would have the Board accept half of the patient?s testimony, but not the balance. The Board is constrained to accept Dr. Hittner?s testimony as reliable and credible. The Board recognizes, too, the expertise of the Respondent?s witness, Dr. Burgess. In fact, his testimony as to the practice of anesthesiology was, for the mest part, in agreement with that of the state?s expert with the exception of the conclusions drawn therefrom. The testimony of the patient to whom the Respondent administered anesthesia at Wing Memorial Hospital was also credible and damning to the Respondent. It is clear that the actions and statements by the Respondent on that occasion mirror those alleged by the Kent County Hospital patient, down to the exact actions and words used by the Respondent. In that case, the Respondent also engaged the patient ina conversation about her personal life, whether she had a boyfriend and/or children. He observed that she had a tattoo. In response to her further probing, the patient told the Respondent that she had a second tattoo on her stomach. He asked to look at itand she acquiesced. Instead, the Respondent then moved his hands down to her breasts and began squeezing them. He asked her if he could play with them. When she replied in the negative, he leaned down closer to her and told her that he could not help himself and that she shouldn?t say anything because he would be in trouble. The circumstances dictate against coincidence. The patients did not know each other and are from different states. ?25 The circulating nurse at Kent County Hospital testi?ed that only 15% of her time is devoted to the patient, while 85% of her time she attends to other duties in the room. The circulating nurse at Wing Memorial HOSpital testi?ed that she did not leave the Respondent?s side during that surgery. The Board does not accept as Credible that testimony, inasmuch as it is the duty of a circulating nurse to move about the operating room performing various '?mctions on both the sterile and non-sterile sides of the drape (or screen). Of the many witnesses who testi?ed only the Respondent stated that from his position at the head of the patient?s bed he could observe persons on the sterile side of the drape. It was unclear from Dr. Infantolino?s testimony whether he claimed to be able to see over the sterile screen while he was seated on the other side assisting in surgery or that he would be able to see beyond the screen only if he wheeled his, chair to the right, away fromthe patient. The Board does not acceptas true that a physician seated and performing surgery on the sterile side of the screen can simultaneously see over the screen to the head of the bed. It was clearly Dr. testimony that he could not see over the sterile screen while he was seated on the opposite side. The case studies and articles presented by the Respondent were read and considered by the Board. They do not represent controlled experiments and there is cautionary language that they not be used in sexual molestation defense cases. Some of the material also acknowledges that reported cases have been used to conceal patient abuse. The weight attributed to the cases detailed in these articles is minimal when measured against the testimony given by the two patients in this case. 26 9% Based upon the testimony and evidence on the record, the Respondent?s license to practice medicine in the State of Rhode Island is hereby REVOKED. This order takes 7 effect on the date of entry. Entered this day of December, 2005. The hearing panel herein unanimously adopted the above Administrative Decision as its ?nal decision. 1. Maureen A. Hobson, Esq. Adjud ative Of?cer f?ee Legal Services R.I. epartment of Health Cannon Building, Room 404 Three Capitol Hill Providence, RI 02908-5097 Tel. (401) 222-2137 Fax (401) 222?1250 Assented. oFo and Substance . D'Wfford, M.P.H. Director of Health If you are aggrieved by this ?nal agency order, you may appeal this ?nal. order to the Rhode Island Superior Court within thirty (30) days from the date of mailing of this notice of ?nal decision pursuant to the provisions for judicial review established by the Rhode Island Administrative Procedures Act, speci?cally, R.I. Gen. Laws 42-35-15. 27 CERTIFICATION I hereby certify that I have mailed a copy of the within Administrative Decision by regular mail, postage prepaid, to David Carroll, Esquir 10 Weyb sset Street, Providence, RI 02903 on this ?4 day of - 2005. 28 COMMONWEALTH OF MASSACHUSETTS - BOARD OF REGISTRATION IN MEDICINE Suffolk, ss. . Adjudicatory Case No. 2006-007 . In the Matter of Final Decision Order Russel Aubin, D.O a A This matter came before the Board fOr ?nal disposition on the basis of the Administrative Magistrate?s Recommended Decision dated October 5, 2006, Board?s Partial Final Decision as to Findings of Fact Conclusions'of Olnly? (hereinafter ?Partial Final Decision?), dated January 10, 2007; After full censideratiOn Of 2 the Partial Final Decision, which is attached hereto and incorporated by reference, the Board imposes the following sanction: I aim The record demonstrates that the Respondent has been disciplined by another jurisdiction for reasons substantially the. same as those found in M.G.L. 112 5 and 243 CMR speci?cally that he committed misconduct in the practice of medicine in violation Of 243 CMR 1.03 and that he engaged in conduct which places into question his competence to practice medicine, including gross misconduct inthe practice of medicine, in violation of M.G.L. c; 112 5 and 243 CMR Furthermore, the record demonstrates that he engaged-in conduct that undermined public con?dence in . the integrity of the medical profession. Therefore,?it is proper for the Board to impose J-I .1 sanction. See Raymond v. Board of Registration in Medicine, 387 Mass. 708 (1982); Levy Medicine, 378 Mass. 519 (1979). v. Board of Registration i ?s conduct involved sexual misconduct with a patient. Speci?cally, the Reapondent inappropriately touched the breasts of a surgery. ?While the Respondent? conduct occurred out~of~ right to renew his license in Massachusetts, and therefore could apply to renew his I setts. As .a function of its ohligation to protect the public health, license in Massachu the Respondent. See safety and welfare, it is proper for the Board to impose sanction on - Levy, supra and Raymond, supra. In the past, the Board has dealt strictly with cases involving sexual misconduct, freq ?ently determining that revocation of the physician?s license is necessary to protect the public and to uphold the integrity of the medical profession. The Board has found that such conduct warrants a serious departure from good and accepted medical practice, and- further, that such conduct demonstrated a complete abuse of patient trust. See 'In the Matter of Richard B. HaWkins, M. Board of Registration in Medicine, Adjudicatory (Final Decision and Order, Medicine, Adjudicatory Case i. - . Case No. 03- . Matter of David P. Ingalls, M.D., Board of Registration in JDALA (Final Decision-and Order, November 13, 2003). Moreover, the Board who had been disciplined in another jurisdiction- chard D. Salerno, No, 02-01 of a physician In the Matter of Ri Adjudicatory Case No. 96-26mm has revoked the license M. 13., Board for engaging in such conduct. Se Registration in Medicare, (Final Decision and Order, July 17, 1996) (physician?s license had been revoked by are state ofNew York for? engaging in sexual misconduct.) DATE: March 21, 2007, . The Board ?nds this matter to be on par with the Hawkins, Ingalls and Salerno matters. In light of his conduct,and the Board?s precedent, the Respondent?s inchoate I right to renew his license to practice is hereby REVOKED. - The Respondent shall provide a complete copy of this Final Decision and Order, with all exhibits and attachments, within ten (10) days by certi?ed mail, return receipt requested, or by hand delivery to the following designated entities: the Drug Enforcement Administration, Boston Diversion Group; any in- or out?of-state hospital, nursing home, clinic, other licensed facility, or municipal, state, or federal facility at which he practices medicine; any in- or out-of?state health maintenance organization with - Whom he has privileges or any other kind of association; any state agency, in? or out-of? state, with which he has a provider contract; any in? or out-of-state medical employer, whether or not he'practices medicine there; and the state licensing boards of all states in which he has any kind of license to practice medicine. The Respondent shall also provide this noti?cation to any such designated entities with which he becomes associated for the duration of this revocation. The-Respondent is further directed to certify to the Board within ten (10) days that he has complied with this directive. The Respondent the right to appeal this Final Decision and Orderwithin (30) days, pursuant to G.L. c. 30A, 14 andlS, and o. . 112, . ,l . - ?4 Roscoe Trimnii?i, Vice Chairman. STATE OF RHODE ISLAND DEPARTNIENT OF HEALTH BOARD OF MEDICAL LICENSUPE AND DISCIPLINE In the Matter of: Russel J. Aubin, D.O. License Number: DO 00522 Reinstatement Order This matter came before the Board of Medical Licensure and Discipline on the Petition of Russel J. Aubin, DD. for the reinstatement of his medical license. Respondent?s medical license was revoked by this Board on December 8, 2005, based on the complaints of two women that he had inappropriate contact with them in the operating room while they were under sedation in 2000 and 2004. The Rules and Regulations for the Licensure and Discipline of Physicians (Section 10.2) permit a physician whose medical license has been revoked by this Board to apply for readmission after ?ve years. On December 20, 2010, Dr. Aubin ?led a reinstatement application supported by substantial documentation. It was approved by the Licensing Committee of the Board on April 7, 2011 and the minutes were rati?ed by the Full Board meeting on April 13, 2011. In support of his application, Dr. Aubin submitted evidence that in the six years since his license was revoked he has undergone extensive training in patient boundary issues under the aegis of a leading expert on boundary violations; that he has been found to be ?t to return to practice after an extensive series of and tests administered by the physician evaluation team used by this Board and the Physicians Health Committee of the Rhode Island Medical Society; and that he has been admitted to practice medicine in the United States Territory of Guam and has practiced for three years in an under-served area. The Licensing Committee of this Board, after reviewing this evidence and interviewing the Petitioner, has recommended the reinstatement of the Petitioner?s medical license. The Board makes the following Findings of Fact and Conclusions of Law: (1) The Petitioner has met his burden of demonstrating to the satisfaction of the Board that he is ?t to practice medicine in the State of Rhode Island. Based upon the foregoing, it is the Order of the Board that the medical license of Russel J. Aubin, D.O. be reinstated on the date listed below. is Rati?ed by the Board of Medical Licensure and Discipline on Fig December 2011. live/Ldi a, Michael Fine, MD. Director of Health Chair, Board of Medical Licensure and Discipline Aubin - Reinstatement Order} COMMONWEALTH OF MASSACHUSETTS - BOARD OF REGISTRATION IN MEDICINE Suffolk, ss. . Adjudicatory Case No. 2006-007 . In the Matter of Final Decision Order Russel Aubin, D.O a A This matter came before the Board fOr ?nal disposition on the basis of the Administrative Magistrate?s Recommended Decision dated October 5, 2006, Board?s Partial Final Decision as to Findings of Fact Conclusions'of Olnly? (hereinafter ?Partial Final Decision?), dated January 10, 2007; After full censideratiOn Of 2 the Partial Final Decision, which is attached hereto and incorporated by reference, the Board imposes the following sanction: I aim The record demonstrates that the Respondent has been disciplined by another jurisdiction for reasons substantially the. same as those found in M.G.L. 112 5 and 243 CMR speci?cally that he committed misconduct in the practice of medicine in violation Of 243 CMR 1.03 and that he engaged in conduct which places into question his competence to practice medicine, including gross misconduct inthe practice of medicine, in violation of M.G.L. c; 112 5 and 243 CMR Furthermore, the record demonstrates that he engaged-in conduct that undermined public con?dence in . the integrity of the medical profession. Therefore,?it is proper for the Board to impose J-I .1 sanction. See Raymond v. Board of Registration in Medicine, 387 Mass. 708 (1982); Levy Medicine, 378 Mass. 519 (1979). v. Board of Registration i ?s conduct involved sexual misconduct with a patient. Speci?cally, the Reapondent inappropriately touched the breasts of a surgery. ?While the Respondent? conduct occurred out~of~ right to renew his license in Massachusetts, and therefore could apply to renew his I setts. As .a function of its ohligation to protect the public health, license in Massachu the Respondent. See safety and welfare, it is proper for the Board to impose sanction on - Levy, supra and Raymond, supra. In the past, the Board has dealt strictly with cases involving sexual misconduct, freq ?ently determining that revocation of the physician?s license is necessary to protect the public and to uphold the integrity of the medical profession. The Board has found that such conduct warrants a serious departure from good and accepted medical practice, and- further, that such conduct demonstrated a complete abuse of patient trust. See 'In the Matter of Richard B. HaWkins, M. Board of Registration in Medicine, Adjudicatory (Final Decision and Order, Medicine, Adjudicatory Case i. - . Case No. 03- . Matter of David P. Ingalls, M.D., Board of Registration in JDALA (Final Decision-and Order, November 13, 2003). Moreover, the Board who had been disciplined in another jurisdiction- chard D. Salerno, No, 02-01 of a physician In the Matter of Ri Adjudicatory Case No. 96-26mm has revoked the license M. 13., Board for engaging in such conduct. Se Registration in Medicare, (Final Decision and Order, July 17, 1996) (physician?s license had been revoked by are state ofNew York for? engaging in sexual misconduct.) DATE: March 21, 2007, . The Board ?nds this matter to be on par with the Hawkins, Ingalls and Salerno matters. In light of his conduct,and the Board?s precedent, the Respondent?s inchoate I right to renew his license to practice is hereby REVOKED. - The Respondent shall provide a complete copy of this Final Decision and Order, with all exhibits and attachments, within ten (10) days by certi?ed mail, return receipt requested, or by hand delivery to the following designated entities: the Drug Enforcement Administration, Boston Diversion Group; any in- or out?of-state hospital, nursing home, clinic, other licensed facility, or municipal, state, or federal facility at which he practices medicine; any in- or out-of?state health maintenance organization with - Whom he has privileges or any other kind of association; any state agency, in? or out-of? state, with which he has a provider contract; any in? or out-of-state medical employer, whether or not he'practices medicine there; and the state licensing boards of all states in which he has any kind of license to practice medicine. The Respondent shall also provide this noti?cation to any such designated entities with which he becomes associated for the duration of this revocation. The-Respondent is further directed to certify to the Board within ten (10) days that he has complied with this directive. The Respondent the right to appeal this Final Decision and Orderwithin (30) days, pursuant to G.L. c. 30A, 14 andlS, and o. . 112, . ,l . - ?4 Roscoe Trimnii?i, Vice Chairman.