Sutton’s lawyer, Gary Wittenberg, said in an emailed statement that “the allegations in the pending Accusation are untrue and we will prove that in court.”
In several cases, the board granted probation knowing the doctor had been convicted of misdemeanor criminal charges stemming from sexual-abuse investigations.
Fakhoury, the Inland Empire doctor, had faced felony sexual-abuse-related charges but was not convicted due to a hung jury, according to San Bernardino County Superior Court records.
His lawyer, Courtney Pilchman, told Kaiser Health News that the criminal charges were dismissed afterward and that the doctor “did not stipulate” to—or admit to—the medical-board accusation.
By contrast, Ohio’s medical board, upon learning of California’s sanction, in 2012 revoked his state license.
The number of disciplinary actions taken over the decade is strikingly small given the size of California’s practicing-physician population of more than 100,000. Alleged victims of sexual abuse by physicians are significantly less likely to come forward than sexual-abuse victims in general, some research indicates.
However, numbers provided by the medical board suggest that many of the complaints that are filed—whether by victims themselves or other sources—do not result in formal accusations against doctors. From October 2013 through June 2018, 838 complaints were designated by the board as possible sexual misconduct. During that same period, 74 accusations were filed. (Multiple complaints can be filed about one doctor.)
Experts and lawyers familiar with the board offered various explanations: Some complaints may be false. Doctor sexual misconduct can be hard to prove by “clear and convincing evidence,” as required in medical-board cases. Many accused physicians hire experienced lawyers who aggressively fight back, leading to delays and deals. Victims may decline to testify or present poorly as witnesses.
Some victims, for instance, have psychiatric disorders or believe that they were engaging in a “consensual” relationship, according to medical-board documents.
Board staff have worked hard to treat alleged victims sensitively, Kirchmeyer said. Expert reviewers are instructed to read complaints as if the person is telling the truth, she said, and the board plans week-long training sessions to help investigators work better with alleged victims and prepare them for testifying.
Read: Does anyone still take both sexual assault and due process seriously?
Many of the cases drag on. It can take years for victims to come forward in the first place—and more time for cases to wind their way through the state’s complex bureaucracy. Evidence can go stale.
“Physicians have to have due process,” Kirchmeyer said. “Anyone can make a complaint about anyone at any time.”
Facing what they see as an uphill battle, lawyers from the state Department of Justice, who handle administrative hearings, will sometimes preemptively recommend probation—even in serious sexual-misconduct accusations—to avoid the possibility that a doctor will get no sanction at all from a judge, said Laura Sweet, a former deputy director for the medical board who retired in 2015.