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Report and Recommendation. In the Matter of Timothy J. Heyd, M.D.. Page 2. II. Appearances. A. On behalf of the State of Ohio: Jim Petro, Attorney General, ...

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 2 II.

Appearances A.

On behalf of the State of Ohio: Jim Petro, Attorney General, by Tara L. Berrien, Assistant Attorney General.

B.

On behalf of the Respondent: Paul J. Coval, Esq.

EVIDENCE EXAMINED I.

Testimony Heard A.

Presented by the State Timothy J. Heyd, M.D., as upon cross-examination

B.

Presented by the Respondent 1. 2. 3. 4.

II.

Timothy J. Heyd, M.D. James Eugene Foster Jr., M.D. Lawrence Gene Ratcliff, M.D. Paul Anthony Martin, D.O.

Exhibits Examined * A.

State’s Exhibits 1A through 1C: Documents concerning Patient 1 consisting of the following: Patient Key, Dr. Heyd’s medical records concerning Patient 1, and copies of medical records concerning Patient 1 maintained by the Women’s Med Center in Dayton, Ohio. [Note that paginated copies of Dr. Heyd’s medical records concerning Patient 1 (State’s Exhibit 1B) will be provided to Board members for their review. Dr. Heyd’s original, unpaginated medical records concerning Patient 1 will be made available for review by Board members in the Board’s offices.]

B.

State’s Exhibits 2A through 2T: Procedural Exhibits

C.

State’s Exhibit 3: Not admitted. See Proffered Material, below.

* D.

State’s Exhibit 4: Copy of a February 24, 2004, letter to John Meranda, M.D., from Rebecca Marshall, Board Enforcement Attorney, concerning Dr. Meranda’s expert opinion for the Board; and copies of materials sent with the letter.

E.

State’s Exhibit 5: Copy of Dr. Meranda’s April 30, 2004, expert witness report.

F.

State’s Exhibit 6: Copy of Dr. Meranda’s July 1, 2004, corrections to his April 30, 2004, expert witness report.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 3

G. * H.

State’s Exhibit 7: Copy of Dr. Meranda’s Curriculum Vitae. State’s Exhibit 8: Deposition Exhibit 4 from a May 29, 2003, Investigatory Deposition of Dr. Heyd by the Board. [Note that the transcript of that deposition along with the other deposition exhibits were not admitted to the record but, instead, were proffered. See Proffered Material, below.]

* Note: Exhibits marked with an asterisk (*) have been sealed to protect patient confidentiality.

PROFFERED MATERIAL The following documents were neither admitted to the hearing record nor considered by the Hearing Examiner, but are being sealed to protect patient confidentiality and held as proffered material for the State: State’s Exhibit 3: Transcript of a May 29, 2003, Investigatory Deposition of Dr. Heyd by the Board, attached exhibits,1 and attached compact disk containing copies of the transcript and deposition exhibits in Adobe Acrobat (.pdf) format.

SUMMARY OF THE EVIDENCE All exhibits and transcripts of testimony, even if not specifically mentioned, were thoroughly reviewed and considered by the Hearing Examiner prior to preparing this Report and Recommendation. 1.

Timothy J. Heyd, M.D., testified that he had obtained his medical degree in 1990 from the Wright State University College of Medicine in Fairborn, Ohio. In 1993, Dr. Heyd completed residency training in family medicine at Miami Valley Hospital in Dayton. Dr. Heyd testified that he had been board certified in family medicine in 1994. (Hearing Transcript Volume I [Tr. Vol. I] at 9-10) Dr. Heyd further testified that, in 1996, he had been employed by Miami Valley Hospital Enterprises as a family practitioner. Moreover, Dr. Heyd testified that he holds hospital privileges at both Miami Valley Hospital and Kettering Medical Center in Kettering, Ohio. (Tr. Vol. I at 10-12) Dr. Heyd noted that he is no longer employed by Miami Valley Hospital Enterprises, and that he is currently employed by Providence Medical Group. Dr. Heyd further testified that

1

Note that Deposition Exhibit 4 was admitted to the record and marked State’s Exhibit 8 per agreement of the parties. See Hearing Transcript at 44-52.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 4 he has been in that group and its parent group, Alliance Physicians, for six years. Dr. Heyd testified that he currently has between 3,000 and 4,000 patients. (Tr. Vol. I at 10-12, 85) 2.

Dr. Heyd testified that Patient 1, a female born on November 6, 1969, had been a registered nurse who worked on a floor of Miami Valley Hospital where Dr. Heyd frequently attended to patients. He further testified that he had first become acquainted with Patient 1 in late 1995 or early 1996. Dr. Heyd testified that he frequently talked to the nurses on that floor, especially the nurses who took care of his patients. Dr. Heyd testified that he had talked with Patient 1 as he would any other nurse or clerk at the hospital. (State’s Exhibit [St. Ex.] 1B at 17; Tr. Vol. I at 17, 56-57) Moreover, Dr. Heyd testified as follows: •

One day, while Dr. Heyd was doing rounds with his patients on Patient 1’s floor, Patient 1, who at that time had been reentering nursing school to obtain a Master’s Degree, approached him and asked him to fill out a physical examination form for her for school. Dr. Heyd told Patient 1 to stop by his office and he would examine her and complete the form. On April 3, 1996, Patient 1 presented to Dr. Heyd’s office. Dr. Heyd performed a physical examination and completed the school form. (St. Ex. 1B at 17; Tr. Vol. I at 57-58)



On February 19, 1997, Dr. Heyd performed a similar school physical examination for Patient 1. (St. Ex. 1B at 18; Tr. Vol. I at 59-60)



On June 2, 1997, Dr. Heyd ordered lab tests on Patient 1, also for her school. (St. Ex. 1B at 18; Tr. Vol. I at 60-61)



On June 12, 1997, Patient 1 called Dr. Heyd’s office concerning a question about a form. Dr. Heyd’s nurse answered Patient 1’s question, and Dr. Heyd was not consulted for that issue. (St. Ex. 1B at 18; Tr. Vol. I at 61)



On July 14, 1997, a TB mantoux was administered to Patient 1 at Dr. Heyd’s office with Dr. Heyd’s approval. (St. Ex. 1B at 18; Tr. Vol. I at 61-62)



On August 18, 1997, Dr. Heyd authorized the dispensing of fourteen samples of Claritin-D to Patient 1. (St. Ex. 1B at 18; Tr. Vol. I at 62-63)



On November 25, 1997, Patient 1 saw one of Dr. Heyd’s practice partners, Brad Snider, M.D., for complaints of congestion and sore throat. (Tr. Vol. I at 63-64)

Finally, Dr. Heyd testified that he had not engaged in any type of personal or sexual relationship with Patient 1 prior to and/or during the time period noted above. (St. Ex. 1B at 18; Tr. Vol. I at 58-64) 3.

Dr. Heyd testified that, between January and April 1998, he had engaged in sexual conduct with Patient 1. This had included vaginal intercourse and oral-genital contact. Dr. Heyd

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 5 stated that these encounters had occurred during the day when Dr. Heyd had been off-duty, and had occurred at Patient 1’s house, or at Patient 1’s sister’s house. (Tr. Vol. I at 18-21) Dr. Heyd further testified that, during the time of his sexual encounters with Patient 1, he had been married and had two children, ages five and three. Patient 1 had also been married but had no children. Moreover, Dr. Heyd testified that neither spouse had been aware of the affair at the time. Finally, Dr. Heyd testified that he and Patient 1 had not been seen together in public, and that their affair had not been well known to the people with whom Dr. Heyd worked. (Tr. Vol. I at 19, 21) 4.

Dr. Heyd testified that he had ended his sexual relationship with Patient 1 in April 1998 by telling Patient 1 that he would no longer see her. Dr. Heyd testified that he had ended the relationship because he had been working with his wife and a counselor to rebuild his marriage. (Tr. Vol. I at 65-66) Dr. Heyd further testified that, in mid or late April 1998, he had informed his wife of his affair with Patient 1. Dr. Heyd explained that he had done so because of the effect the affair had been having on him and his family. Dr. Heyd stated that the affair had created more distance between him and his wife, and that he had become more irritable around his children. Moreover, Dr. Heyd testified that he had been nervous, distraught, and having trouble sleeping. Finally, Dr. Heyd testified, “I couldn’t live with myself.” (Tr. Vol. I at 66-67)

5.

Dr. Heyd testified that, during his affair with Patient 1, he had believed that Patient 1 had used birth control. He had reached this conclusion based on what Patient 1 had told him during his first physical examination of her, which had occurred on April 3, 1996. Dr. Heyd testified that the medical record reflects that Patient 1 had informed him that she took Ovral daily, and that he had advised her that she was to continue her birth control as per her ob/gyn. However, Dr. Heyd testified that he had learned after the affair ended that she had not used birth control at the time of the encounters. (St. Ex. 1B at 17; Tr. Vol. I at 20-21, 79-80)

6.

A progress note in Dr. Heyd’s medical records for Patient 1 dated May 7, 1998, states, “Sent slip for preg test.” Moreover, Dr. Heyd testified that, in May 1998, Patient 1 had had a pregnancy test performed at a laboratory adjacent to Dr. Heyd’s office. Dr. Heyd testified that a medical assistant had initialed that note, but that Dr. Heyd had ordered the test. (St. Ex. 1B at 18, Tr. Vol. I at 65) Another progress note dated May 8, 1998, states, “[Patient] aware of [positive] preg test.” Dr. Heyd testified that he had become aware of the positive result because “[t]he assistant [had] put [that] note in the chart.” (St. Ex. 1B at 18; Tr. Vol. I at 21-22) Dr. Heyd testified that, outside of his office, he had personally called Patient 1 on the telephone to inform her of the positive test. Dr. Heyd testified that he had not documented

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 6 that conversation in the medical record nor did he charge Patient 1 a fee. (Tr. Vol. I at 22, 67-68) 7.

Dr. Heyd testified that, after learning of the positive pregnancy test, he and Patient 1 had discussed whether Patient 1 would either terminate the pregnancy or proceed with the pregnancy and give the baby up for adoption. Moreover, Dr. Heyd testified that these discussions took place outside of his office, and that he had had these conversations as Patient 1’s lover rather than as her physician. Dr. Heyd testified concerning his feelings about the pregnancy at that time, I realized that this could cause, you know, major changes in her family situation and especially my family situation. I was the father of two very small kids. I was trying to keep my marriage together and I thought this could very well end my marriage and I could lose my children. (Tr. Vol. I at 25) Moreover, Dr. Heyd testified, I told her that my life would be ruined, but I did not say that [it would be ruined] if she did not get an abortion. We discussed the options at length, and together, given both of our family situations, we decided together that it would be best if we terminated the pregnancy. (Tr. Vol. I at 25) Furthermore, Dr. Heyd testified that when he said that his “life would be ruined,” he had been referring to the effect it would have on his family when his wife discovered that he had fathered Patient 1’s child. (Tr. Vol. I at 25) Finally, when the State’s Assistant Attorney General asked Dr. Heyd, “You wanted her to get an abortion, didn’t you?” Dr. Heyd replied, We decided that together. It was a—it was a very emotional time. I was very distraught. As I said, my marriage, I was working hard on my marriage and we had several discussions together as to what to do. I don’t think she knew clearly what to do and I didn’t know clearly what to do and it was a horrible situation, and I believe that together we decided to do what we thought was best at the time. (Tr. Vol. I at 26)

8.

Dr. Heyd testified that, at some point, Patient 1 decided to have an abortion. Dr. Heyd further testified that she had gone to the Women’s Med Center in Dayton, Ohio, to have the abortion performed, and that he had given Patient 1 the name of that clinic. Dr. Heyd testified that Patient 1 had first made an appointment with the Women’s Med Center, but later cancelled it. Dr. Heyd testified that Patient 1 did not tell him why she had cancelled the first appointment. (St. Ex. 1C at 11; Tr. Vol. I at 26-27)

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 7 Dr. Heyd further testified that Patient 1 had subsequently rescheduled an appointment with the Women’s Med Center for June 18, 1998. Dr. Heyd testified that he had accompanied Patient 1 to that appointment, and had been there when she checked in and registered. Moreover, Dr. Heyd acknowledged that, on the registration form, Patient 1 had indicated that “Tim Heyd” would be the person responsible for the bill. Further, Dr. Heyd testified that Patient 1 had indicated that, if there should be a medical problem with her laboratory tests, she did not want to be contacted at home by the Women’s Med Center, and that her physician, “Dr. Tim Heyd,” should instead be contacted. Finally, Dr. Heyd acknowledged that Patient 1 had indicated that she had learned of the Women’s Med Center from her physician. (St. Ex. 1C at 5; Tr. Vol. I at 27-29, 72) In addition, Dr. Heyd testified that he had been present in the procedure room at the request of Patient 1, although the registration clerk had told him that that was not standard practice. Moreover, Dr. Heyd testified that he had represented himself as a physician at the time he accompanied Patient 1. Finally, Dr. Heyd testified that the Women’s Med Center had sent Dr. Heyd’s practice a post-operative report concerning Patient 1’s abortion, and that he had read and initialed that report. (St. Ex. 1B at 49; Tr. Vol. I at 29-30, 72-73) Dr. Heyd testified that he had never before accompanied a patient to a procedure, nor had he ever before paid for a patient’s clinical bill. (Tr. Vol. I at 32-33) 9.

Dr. Heyd testified that he had not provided any medical services to Patient 1 with regard to her pregnancy. (Tr. Vol. I at 71) Dr. Heyd testified that Patient 1 had had an ob/gyn; however, she had not wanted to consult him with regard to her pregnancy because she had been concerned that he would get upset. (Tr. Vol. I at 71)

10. A progress note dated June 19, 1998, in Dr. Heyd’s medical records for Patient 1 indicates that Patient 1 had called Dr. Heyd’s office to obtain a note for short-term disability. The progress note indicates that Patient 1 had been advised to contact the office that had performed the abortion. The note further states that Patient 1 had indicated that she would do so. (St. Ex. 1B at 15) Nevertheless, Dr. Heyd testified that he had provided Patient 1 with the note she had requested. A copy of the note in Patient 1’s medical records on Dr. Heyd’s office letterhead is dated June 22, 1998, and addressed to “To Whom it May Concern.” The note states, “Please allow for short term disability for [Patient 1] from June 18, 1998, [through] June 21, 1998 (inclusive) due to her D&C. Any further forms or paperwork will be completed by our office at your request.” (St. Ex. 8; Tr. Vol. I at 30-32) When asked why he had provided the note to Patient 1, Dr. Heyd replied, She asked me to write the note. I directed her to the place where she had [the abortion] done, either to the center, [or] to her ob/gyn. She told me that she

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 8 did not want to do that. If she did ask them, they would probably refuse to do it, so she urged me to write the note, so I did. (St. Ex. 8; Tr. Vol. I at 74) 11.

By letter dated June 24, 1998, typed on Dr. Heyd’s office letterhead, Dr. Heyd informed Patient 1 of the following, Due to circumstances that we have discussed previously and for reasons beyond my control, I feel that your medical care would best be served by another physician. Unfortunately, it appears that the situation has dictated that both your medical needs and my ability to provide adequate medical care will be compromised if I continue to serve as your physician. I hope I have been able to provide adequate medical care to you up to this point. We are responsible to you for emergency care for the next 30 days. Thereafter, we will expect that you will be under the management of another physician. If you have any questions or concerns, please call the office. We will be happy to forward any records at your request. (St. Ex. 1B at 9) Dr. Heyd testified that he had discussed with several people the sending of the letter. Further, Dr. Heyd testified that he had discussed the issue with his wife and their counselor, and with two of his practice partners: Steven Robbe, M.D., and Eric McHenry, M.D. Dr. Heyd noted that Drs. Robbe and McHenry are close friends whom he sees socially in addition to being practice partners. Dr. Heyd further noted that Drs. Robbe and McHenry had been made aware of the sexual relationship between Dr. Heyd and Patient 1 after it had ended. Moreover, Dr. Heyd believes that they also had been made aware of the abortion. (Tr. Vol. I at 34-36) Dr. Heyd testified that his wife, their counselor, and Drs. Robbe and McHenry had “strongly suggested” that Dr. Heyd formally terminate his physician-patient relationship with Patient 1. (Tr. Vol. I at 68-69) Dr. Heyd further testified, I thought I already had. I thought there was no ongoing relationship. But [Patient 1] continued to contact me. My counselor told me I needed to make it clear to her that there must be no more contact. My partners said, since she continues to approach you at the office and [by] waiting in the parking lot, she needs to know clearly that she’s not a patient here, so send her a letter.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 9 So I dictated a letter. We don’t have a standard letter, so I dictated a letter to formally terminate so that she could not contact me anymore, I could not take care of her anymore. (St. Ex. 1B at 9; Tr. Vol. I at 69) Dr. Heyd added that Patient 1 had requested to see another physician in his practice, Dr. McHenry; however, because Dr. McHenry had been familiar with the situation between Patient 1 and Dr. Heyd, Dr. McHenry had refused to see her. Moreover, Dr. Heyd testified that no one in his practice could have acted as her physician, because if she should have had a medical problem at a time when Dr. Heyd had been the on-call physician, he would not have been able to provide care to her. (Tr. Vol. I at 69-70) 12.

With regard to the June 24, 1998, termination letter, Dr. Heyd acknowledged that he should have formally terminated the physician-patient relationship earlier, before engaging in any personal relationship with Patient 1. Dr. Heyd further testified, Now I’m acutely aware that I should have [formally terminated the physician-patient relationship]. Back when I wrote the letter, I realized I should have done it back then. But honestly, in my mind, I thought that there—that she didn’t need me as a physician, that there was really no ongoing physician-patient relationship. I see now that there was and I saw back in June [1998] that there was, and that’s why I had to formally terminate it. (Tr. Vol. I at 81-83) Finally, Dr. Heyd acknowledged that, despite the fact that he had not seen Patient 1 professionally during the period that he engaged in a sexual relationship with her, Patient 1 had still been a patient because he had not formally terminated the physician-patient relationship. (Tr. Vol. I at 87)

13.

Dr. Heyd testified that, after he had sent the termination letter to Patient 1, she had continued to contact him. Dr. Heyd further testified that she had called him at his home and at his office, and had continued to appear in the parking lot and in the waiting room of his office. Moreover, Dr. Heyd testified that she had approached him when he did rounds at the hospital. Dr. Heyd believes that Patient 1 had engaged in such behavior because she had wanted to continue their relationship. (Tr. Vol. I at 74-75) Dr. Heyd testified that, in response to Patient 1’s attempts to meet with him, he had “made every serious attempt to try to refrain from any further contact with her.” Dr. Heyd stated that he had enlisted the aid of his office manager and practice partners to help him avoid her, and had altered his normal schedule at the hospital to assure that he would be on Patient 1’s floor only at times when she was not there. (Tr. Vol. I at 75-76)

14.

Dr. Heyd testified that he had had an at-will employment contract with his practice. Dr. Heyd further testified his contract had specified that either party “could terminate the contract without cause with 90 days’ notice.” Moreover, Dr. Heyd testified that, during a

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 10 workday in October 1998, the president of Miami Valley Hospital Enterprises had come to Dr. Heyd’s office and informed Dr. Heyd that Miami Valley Hospital Enterprises was giving him 90 days’ notice, that his employment would be terminated, and that he had been placed on immediate administrative leave. Dr. Heyd stated that he had asked if he should finish the day, as he had had a full patient schedule. Dr. Heyd testified that had been told, “no,” and that he had taken his belongings and left the office. (Tr. Vol. I at 37-38, 53-54) Dr. Heyd testified that he had fought to get his job back, because he liked his partners and he liked practicing there. Dr. Heyd further testified that he had felt very loyal to his patients and believed that he needed to be there to serve them. Moreover, Dr. Heyd testified that, when it appeared that he would not be getting his job back, he had tried to obtain a list of his patients so that he could contact them and inform them at such time he obtained a new practice. (Tr. Vol. I at 54) 15. Dr. Heyd testified that the executives of Miami Valley Hospital Enterprises had learned of Patient 1 when Patient 1 went to them and asked them to make Dr. Heyd talk to her. Dr. Heyd further testified that he believes that the reason that he had been terminated from his practice was because Patient 1 was threatening lawsuits against Dr. Heyd and Miami Valley Hospital. (Tr. Vol. I at 55-56) 16.

Dr. Heyd testified that, prior to his termination by Miami Valley Hospital Enterprises, he had had approximately 4,000 patients under his care. (Tr. Vol. I at 53)

17.

Dr. Heyd testified that Patient 1 had filed a lawsuit against him and Miami Valley Hospital Enterprises claiming patient abandonment. Dr. Heyd further testified that the case had settled for a monetary award of $150,000, which was divided three ways: Dr. Heyd paid $50,000; his malpractice insurer paid $50,000; and Miami Valley Hospital Enterprises paid $50,000. (Tr. Vol. I at 38-39) Moreover, Dr. Heyd testified that the settlement agreement had specified that neither Dr. Heyd nor Patient 1 would initiate any further contact with the other. Dr. Heyd testified that he has honored that agreement; however, Patient 1 has not. Dr. Heyd testified that, through about October 2002, Patient 1 had continued to attempt to contact him by letter, telephone, and page. (Tr. Vol. I at 77-79)

18.

Dr. Heyd testified that the Board had first contacted him in May 1999 concerning his sexual relationship with Patient 1. Dr. Heyd further testified that a Board investigator had come to Dr. Heyd’s office and arranged for Dr. Heyd to come to Columbus to meet further. That meeting took place at the offices of Dr. Heyd’s attorney and was attended by the Board investigator, Dr. Heyd, and Dr. Heyd’s attorney. Dr. Heyd testified that he had cooperated and had answered all of the investigator’s questions. Furthermore, Dr. Heyd testified that, at the end of the meeting, “[The Board investigator] indicated to me that he didn’t see there was anything here, didn’t say, really, if we would hear anything more, didn’t indicate as to when he’d contact us and basically excused himself.” Finally,

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 11 Dr. Heyd testified that he did not again hear from the Board until about four years later. (Tr. Vol. I at 83-84) Dr. Heyd testified that, when the Board next contacted him, two Board investigators appeared at Dr. Heyd’s office and presented him with a subpoena for a deposition to be held in Columbus in May 2003. Dr. Heyd appeared at the deposition as ordered. However, Dr. Heyd testified that he did not again hear from the Board until summer 2004 when he received the Board’s notice of opportunity for hearing. (Tr. Vol. I at 84-85) 19.

John R. Meranda, M.D., provided a written expert witness report to the Board. Dr. Meranda’s Curriculum Vitae states that he had obtained his medical degree in 1982 from the Ohio State University College of Medicine in Columbus, Ohio, then completed an internship and a residency in family practice at Grant Medical Center in Columbus. Further, Dr. Meranda was certified by the American Board of Family Practice in 1985, and recertified in 1991, 1997, and 2003. Moreover, Dr. Meranda is a fellow of the American Academy of Family Physicians. Dr. Meranda is a member of several professional societies, and was licensed to practice medicine in Ohio in 1982. He is also licensed in Pennsylvania. Dr. Meranda practices in Conneaut, Ohio. (St. Exs. 5 and 7) In his report, Dr. Meranda indicated that he had reviewed a copy of Dr. Heyd’s medical records for Patient 1, a copy of the Women’s Med Center’s medical records for Patient 1, a copy of the condensed transcript of the May 29, 2003, deposition of Dr. Heyd by Board staff, and “[c]opies of the American Medical Association’s Principals of Medical Ethics, Principals I-IX, as well as AMA policy statements: E-8.14 Sexual Misconduct in the Practice of Medicine, and E-10.015 The Patient-Physician Relationship.” (St. Ex. 5) In addition, Dr. Meranda offered the following opinion concerning Dr. Heyd’s conduct: It is my opinion, within a reasonable degree of certainty, that Dr. Heyd’s conduct violated policy statement E-8.14 of the AMA Code of Ethics. Dr. Heyd testified [at deposition] that a sexual affair with Patient 1 began in January 1998. Details of the affair were contained within the deposition and substantiated in the medical record. Records showed he did not terminate the physician-patient relationship until June 24, 1998. Policy E-8.14 states ‘At a minimum, a physician’s ethical duties include terminating the physician-patient relationship before initiating a dating, romantic or sexual relationship with a patient.’ This duty was clearly breached. It is also my opinion, within a reasonable degree of certainty, that Dr. Heyd’s conduct with respect to Patient 1 clearly represents a ‘departure from, and [sic] a failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established,’ representing a violation of Section 4731.22(B)(6), Ohio Revised Code.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 12 My opinion on this matter would not be changed whether the patient or the physician initiated sexual contact. As a family practitioner, certified by the American Board of Family Practice, I can verify that I was instructed about this very basic principle of the AMA Code of Ethics, policy E-8.14, early in medical school. This was reinforced in residency training and reinforced in post-graduate continuing education. A question on a recent ABFP recertification exam dealt with the specific steps that must be taken prior to initiating a sexual relationship with a patient. Therefore it is my opinion that the afore-mentioned points of the AMA Code of Ethics should be common knowledge to all Board Certified Family Practice physicians, and, of course, should be strictly followed. (St. Ex. 5, as corrected by Dr. Meranda in St. Ex. 6) 20.

The American Medical Association Code of Ethics, policy E-8.14, entitled, Sexual Misconduct in the Practice of Medicine, states as follows, Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct. Sexual or romantic interactions between physicians and patients detracts from the goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure the physician’s objective judgment concerning the patient’s health care, and ultimately may be detrimental to the patient’s well-being. If a physician has reason to believe that non-sexual contact with a patient may be perceived as or may lead to sexual contact, then he or she should avoid the non-sexual contact. At a minimum, the physician’s ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient. Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician-patient relationship. Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship. (I, II, IV) Issued December 1989; Updated March 1992 based on the report “Sexual Misconduct in the Practice of Medicine,” adopted December 1990 (JAMA. 1991; 266: 2741-2745). (St. Ex. 4)

21.

Dr. Heyd testified that he is familiar with the American Medical Association’s Code of Ethics, and its prohibition against physicians having sex with their patients. Dr. Heyd further testified that he had been taught that early in his medical career. (Tr. Vol. I at 36-37)

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 13 22.

James Eugene Foster Jr., M.D., testified as a witness on behalf of Dr. Heyd. Dr. Foster testified that he obtained his medical degree from the Medical College of Ohio, and that he had completed a residency in family medicine at that same institution in 1994. Dr. Foster further testified that he has been licensed to practice medicine in Ohio for ten years, and that he is also license in Michigan and Indiana. (Tr. Vol. I at 95-96) Dr. Foster testified that he works part-time at two places. He works about 24 hours per week as a practicing family physician for Providence Medical Group, and works 20 hours per week “as a medical director for Caresource, which is a Medicaid HMO.” (Tr. Vol. I at 96-98)

23. Dr. Foster testified that he has known Dr. Heyd for approximately seven years. Dr. Foster stated that they had first met when both of them served on a committee for Alliance Physicians. Dr. Foster further testified, “Since that time, I have probably seen him sometimes more than my wife, I think. We’re on several committees together.” Moreover, Dr. Foster testified that they both serve on the board of Providence Medical Group, “which is a 45-man physician-owned group in Dayton,” and that Dr. Heyd is chairman of the physician compensation committee. Furthermore, Dr. Foster testified that Dr. Heyd is his personal physician. Finally, Dr. Foster testified that he sees Dr. Heyd socially. (Tr. Vol. I at 99-100) Dr. Foster testified that he is familiar with the circumstances surrounding Dr. Heyd’s departure from Miami Valley Hospital Enterprises. (Tr. Vol. I at 100-101, 103) When asked for his assessment of the quality of care that Dr. Heyd provides, Dr. Foster testified, I think [Dr. Heyd] is an excellent physician. I think not only is his technical ability outstanding, but in all facets of his life that I have been exposed to, he has shown compassion and dedication. And if ever given the opportunity, I would welcome him to work directly with me and I have absolutely no reservations. He’s a model physician. (Tr. Vol. I at 100-101) With regard to Dr. Heyd’s conduct that formed the basis for the present matter, when asked if he had any concerns that Dr. Heyd would repeat such conduct, Dr. Foster replied, I can say a hundred percent that I have no reservations he would ever go down this path again. I think it was a bad judgment at the time, an isolated incident, and I have never seen anything of his behavior on multiple levels that would ever, at any time, would I question that he would go down that path again. (Tr. Vol. I at 102) Dr. Foster testified that Dr. Heyd is a very valuable member of the Providence Medical Group, and that it is very likely that he will be the next board president. (Tr. Vol. I at 102)

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 14 24.

Lawrence Gene Ratcliff, M.D., testified as a witness on behalf of Dr. Heyd. Dr. Ratcliff testified that he has practiced medicine for thirty years, and that, for the last three years, he has practiced at Farmersville Medical Center in Farmersville, Ohio. Dr. Ratcliff stated that Farmersville Medical Center is a subdivision of Providence Medical Group. Dr. Ratcliff further testified that, prior to that, he had “practiced in a hospital-based group practice called Alliance Physicians * * *.” Moreover, Dr. Ratcliff testified that he is board certified in family practice, that he is a member of several national and local professional societies, and that he had held a clinical academic appointment at the Ohio State University College of Medicine and Public Health, and a faculty appointment at the Wright State University School of Medicine. (Hearing Transcript Volume II [Tr. Vol. II] at 5-6) Dr. Ratcliff testified that he has known Dr. Heyd since 1992 or 1993. At that time, Dr. Heyd had been a resident at Miami Valley Hospital, and Dr. Ratcliff had been a preceptor for the residency program. After Dr. Heyd finished his residency, Dr. Ratcliff did not see Dr. Heyd very much until around 1996, when Dr. Heyd left Miami Valley Hospital Enterprises. Dr. Ratcliff testified that he had learned that Dr. Heyd was looking for a new job, and had facilitated Dr. Heyd joining Alliance Physicians. Finally, Dr. Ratcliff testified that he has “worked closely with [Dr. Heyd] ever since.” (Tr. Vol. II at 7-8) Dr. Ratcliff testified that he does not socialize with Dr. Heyd outside of work. (Tr. Vol. II at 17) Dr. Ratcliff testified that he is familiar with the circumstances of Dr. Heyd leaving Miami Valley Hospital Enterprises and that Dr. Heyd had related the details to him in 1996. (Tr. Vol. II at 9-11)

25. Dr. Ratcliff testified that he serves as the Assistant Medical Director of Alliance Physicians, and as the Medical Director of Providence Medical Group, described by Dr. Ratcliff as a new group for which Dr. Heyd works. (Tr. Vol. II at 8-13) Dr. Ratcliff testified that, in that capacity, Dr. Ratcliff participates in routine chart reviews, quality of care reviews, and performance improvement reviews. Dr. Ratcliff testified that, on those occasions, I got to see Tim’s chart, Dr. Heyd’s charts, and got to work with him, not clinically, but from a quality review standpoint overviewing any issues that he had. And he came through just with flying colors. He’s very, very conscientious, does an excellent job. I would say he’s above average. (Tr. Vol. II at 11-12) Further, when asked whether he has any reservations about the quality of medicine that Dr. Heyd provides, Dr. Ratcliff replied, “No, not at all.” Moreover, Dr. Ratcliff testified that Dr. Heyd is a valuable member of Providence Medical Group, that he serves on their board and on several committees, and that he has been “integrally related to the group and its success.” (Tr. Vol. II at 12-13)

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 15 26.

Paul Anthony Martin, D.O., testified on behalf of Dr. Heyd. Dr. Martin stated that he had graduated from medical school in 1977, and then completed a one-year internship at Grandview Hospital and Medical Center in Dayton from 1977 through 1978. Dr. Martin testified that he has practiced family medicine at the same address in Dayton since finishing his residency. Moreover, Dr. Martin testified that he is board certified in family medicine, and that he recertified in November 2004. Furthermore, Dr. Martin testified that he is a member of several national and local professional societies, and is past president of the Ohio Osteopathic Association. In addition, Dr. Martin testified that he is a professor at the Ohio University College of Osteopathic Medicine, and an adjunct professor at the University of Dayton biology department. Finally, Dr. Martin testified that he is the ethics officer for the Dayton District Academy of Osteopathic Medicine. (Tr. Vol. II at 21-22, 33) Dr. Martin testified that he has known Dr. Heyd for about five years, and came to know him following a merger of two physician organizations. The merged entities became collectively known as Alliance Physicians. Dr. Martin further testified that, following the merger, both Dr. Martin and Dr. Heyd have been members of the governance council, and Dr. Martin had served as chair of the council. In addition, Dr. Martin testified that, since then, a separate physician organization called Providence Medical Group had been formed when Alliance Physicians was “spun off from the Kettering Medical Center network * * *.” Finally, Dr. Martin testified that he is the President and CEO of Providence Medical Group. (Tr. Vol. II at 23-24) Dr. Martin testified that he is aware of the circumstances underlying the Board’s allegations. Dr. Martin further testified that he had learned of those circumstances after Dr. Heyd had received the Board’s notice of opportunity for hearing. Dr. Martin testified that Dr. Heyd had contacted him concerning that issue immediately after receiving the notice. (Tr. Vol. II at 25-26) Dr. Martin testified that, after Dr. Heyd explained what had happened, “my reaction was that he was, first of all, very honest and forthright in coming to me to discuss the situation as a member of the board. My reaction was, let’s see what’s going to happen.” (Tr. Vol. II at 26-27) When asked whether he believes that Dr. Heyd is likely to repeat his misconduct, Dr. Martin testified that he has not seen or heard anything that would lead him to believe that Dr. Heyd would repeat such conduct. (Tr. Vol. II at 28) Dr. Martin further testified, The Kettering Medical Center network is a Seventh-Day Adventist network and we tend to work or try to make sure that, number one, we evaluate any future employee, be it a physician or a nursing personnel in our network, in such a way that we feel that they are going to be good people for not only our network, but for our community. And we also want to make sure that if someone has made a mistake, have they made—have they gotten to the point where they feel comfortable enough or we feel comfortable enough at Kettering to, in fact, hire them on in the situation.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 16

And in particular, in Dr. Heyd’s situation, we had felt that there was a punishment that was netted out at that time, there was a period of time when he was out of practice for about ninety days, and it was the right thing to do to give him another chance. * * * I think he’s learned his lesson. (Tr. Vol. II at 29) Dr. Martin testified that Dr. Heyd is a very valuable member of the Providence Medical Group. Dr. Martin further testified that, because of a dispute between an insurance company and one of the two hospital systems in Dayton, Providence Medical Group has been asked to take on a large number of new patients. Moreover, Dr. Martin testified, “we need every member that we’ve got in out group to help provide that care for the patients of Dayton and the community of Dayton.” Finally, Dr. Martin testified that if Dr. Heyd is out of practice, the group is going to be hurt, especially Dr. Heyd’s partner, Dr. Louis Lugo. (Tr. Vol. II at 29-31, 35) 27.

Dr. Martin testified that, when Dr. Heyd had approached him about the Board’s notice letter, he had “immediately volunteered to be a witness for [Dr. Heyd].” (Tr. Vol. II at 32-33)

28.

Dr. Heyd testified that the conduct giving rise to this hearing has had severe personal and professional repercussions. Dr. Heyd further testified, I lost my marriage. I was unable to save my marriage. And with that, I lost my kids. I lost my practice. I lost my friendship with my colleagues in that practice. *** * * * I was on several committees at the hospital. I no longer serve on those committees. I lost respect. I lost the esteem of my colleagues, my reputation. I had to rebuild my practice. The previous practice did not allow me access to my patients, so I lost almost all of my patients. So I rebuilt my patient[ base]. Some of them I just phoned because I remembered their names. My—and I guess I lost a lot of my self-respect. I lost a lot of sleep. I still do. * * * (Tr. Vol. I at 85-86) With regard to the Board’s investigation and its effect on him, Dr. Heyd testified, Well, it’s been very hard. It’s been very hard. I guess in one sense, I’ve learned to lean on people I’ve never had to lean on before, like pastor and counselor. For five years now, the first thought every morning is this sword hanging over my head.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 17 I want this behind me. I’ve paid a dear price. I’ve been trying to rebuild my life and rebuild my practice and I want to try to continue to do that. (Tr. Vol. I at 86)

FINDINGS OF FACT On April 3, 1996, Timothy J. Heyd, M.D., undertook the care of Patient 1. Dr. Heyd repeatedly engaged in sexual contact with Patient 1 from about January 1998 through April 1998, despite his ongoing physician-patient relationship with Patient 1 during that time. On or about June 24, 1998, Dr. Heyd directed a letter to Patient 1 informing her that he was terminating such physician-patient relationship, in which he stated, among other things, “my ability to provide adequate medical care will be compromised if I continue to serve as your physician.”

CONCLUSIONS OF LAW 1.

The conduct of Timothy J. Heyd, M.D., as set forth in the Findings of Fact, constitutes “[a] departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established,” as that clause is used in Section 4731.22(B)(6), Ohio Revised Code.

2.

The conduct of Dr. Heyd, as set forth in the Findings of Fact, constitutes “[v]iolation of any provision of a code of ethics of the American medical association, the American osteopathic association, the American podiatric medical association, or any other national professional organizations that the board specifies by rule,” as that clause is used in Section 4731.22(B)(18), Ohio Revised Code, to wit: Principles I, II, and IV of the American Medical Association’s Principles of Medical Ethics. *****

Dr. Heyd’s conduct as set forth in the Findings of Fact represented a serious breach of his duty as a physician. This is somewhat tempered by evidence that he has not tried to hide or minimize his misconduct, that he has cooperated with the Board and has been honest and forthright concerning his misconduct, and because it seems very unlikely that Dr. Heyd would ever repeat such misconduct. Furthermore, Dr. Heyd appears to be genuinely remorseful. In addition, the misconduct is rather remote in time, having occurred about seven years ago. On the other hand, it is clear that Dr. Heyd’s misconduct had an adverse impact on, at the very least, Patient 1 and Dr. Heyd’s patients and practice partners at Miami Valley Hospital Enterprises. The Board has in the past permanently removed physicians from practice for sexual misconduct. However, because of the mitigating circumstances noted above, permanent revocation of

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 18 Dr. Heyd’s certificate would be excessively harsh. Accordingly, the proposed order calls for a stayed permanent revocation, suspension from practice with a requirement that Dr. Heyd complete an approved professional ethics course, and a relatively brief period of probationary monitoring following reinstatement.

PROPOSED ORDER It is hereby ORDERED that: A.

PERMANENT REVOCATION, STAYED; SUSPENSION: The certificate of Timothy J. Heyd, M.D., to practice medicine and surgery in the State of Ohio shall be PERMANENTLY REVOKED. Such permanent revocation is STAYED, and Dr. Heyd’s certificate shall be SUSPENDED for an indefinite period of time, but not less than ninety days.

B.

CONDITIONS FOR REINSTATEMENT OR RESTORATION: The Board shall not consider reinstatement or restoration of Dr. Heyd’s certificate to practice medicine and surgery until all of the following conditions have been met: 1.

Application for Reinstatement or Restoration: Dr. Heyd shall submit an application for reinstatement or restoration, accompanied by appropriate fees, if any.

2.

Professional Ethics Course: At the time he submits his application for reinstatement or restoration, Dr. Heyd shall provide acceptable documentation of successful completion of a course or courses dealing with professional ethics. The exact number of hours and the specific content of the course or courses shall be subject to the prior approval of the Board or its designee. Any courses taken in compliance with this provision shall be in addition to the Continuing Medical Education requirements for relicensure for the Continuing Medical Education period(s) in which they are completed. In addition, at the time Dr. Heyd submits the documentation of successful completion of the course or courses dealing with professional ethics, he shall also submit to the Board a written report describing the course, setting forth what he learned from the course, and identifying with specificity how he will apply what he has learned to his practice of medicine in the future.

3.

Additional Evidence of Fitness To Resume Practice: In the event that Dr. Heyd has not been engaged in the active practice of medicine and surgery for a period in excess of two years prior to application for reinstatement or restoration, the Board may exercise its discretion under Section 4731.222 of the Revised Code to require additional evidence of his fitness to resume practice.

Report and Recommendation In the Matter of Timothy J. Heyd, M.D. Page 19 C.

PROBATION: Upon reinstatement or restoration, Dr. Heyd’s certificate shall be subject to the following PROBATIONARY terms, conditions, and limitations for a period of at least two years: 1.

Modification of Terms: Dr. Heyd shall not request modification of the terms, conditions, or limitations of probation for at least one year after imposition of these probationary terms, conditions, and limitations.

2.

Obey the Law: Dr. Heyd shall obey all federal, state, and local laws, and all rules governing the practice of medicine and surgery in Ohio.

3.

Declarations of Compliance: Dr. Heyd shall submit quarterly declarations under penalty of Board disciplinary action or criminal prosecution, stating whether there has been compliance with all the conditions of this Order. The first quarterly declaration must be received in the Board’s offices on or before the first day of the third month following the month in which Dr. Heyd’s certificate is restored or reinstated. Subsequent quarterly declarations must be received in the Board’s offices on or before the first day of every third month.

4.

Personal Appearances: Dr. Heyd shall appear in person for an interview before the full Board or its designated representative during the third month following the month in which Dr. Heyd’s certificate is restored or reinstated, or as otherwise directed by the Board. Subsequent personal appearances must occur every three months thereafter, and/or as otherwise requested by the Board. If an appearance is missed or is rescheduled for any reason, ensuing appearances shall be scheduled based on the appearance date as originally scheduled.

5.

Tolling of Probationary Period While Out of State: Dr. Heyd shall obtain permission from the Board for departures or absences from Ohio. Such periods of absence shall not reduce the probationary term, unless otherwise determined by motion of the Board for absences of three months or longer, or by the Secretary or the Supervising Member of the Board for absences of less than three months, in instances where the Board can be assured that probationary monitoring is otherwise being performed.

6.

Noncompliance Will Not Reduce Probationary Period: In the event Dr. Heyd is found by the Secretary of the Board to have failed to comply with any provision of this Order, and is so notified of that deficiency in writing, such period(s) of noncompliance will not apply to the reduction of the probationary period under this Order.

7.

Violation of Terms of Probation: If Dr. Heyd violates probation in any respect, the Board, after giving him notice and the opportunity to be heard, may institute whatever disciplinary action it deems appropriate, up to and including the permanent revocation of his certificate.