This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the Medical License of

Robert J. Woolley, M.D., Date of Birth:  4/17/61,

License Number: 33,667.



Filed August 30, 2005


Halbrooks, Judge



Minnesota Board of Medical Practice

File No. OAH No. 15-0903-15673-2



Robert J. Woolley, 2156 Winthrop Court, St. Paul, MN 55119 (pro se relator)


Mike Hatch, Attorney General, Steve M. Gunn, Tiernee Murphy, Assistant Attorneys General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)




            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            By writ of certiorari, relator challenges the decision of the Minnesota Board of Medical Practice (board) revoking his license to practice medicine in the state of Minnesota.  Relator argues that the board (1) assumed facts beyond those originally agreed on for purposes of summary disposition, (2) erred by misconstruing the term “patient” and by misapplying certain provisions of the Medical Practices Act, and (3) abused its discretion by revoking his medical license.  We affirm. 


            Pro se relator Robert J. Woolley, M.D., was licensed to practice medicine on June 30, 1990.  In 1993, patient #1 began her employment as an X-ray technician at the Boynton Health Service (BHS) of the University of Minnesota (university).[1]  Patient #1 has suffered from a number of serious health problems since an early age, including cataracts, blood clots, and severe asthma.  In 1994, relator began practicing medicine at BHS.  On July 16, 1997, relator, along with a colleague, first treated patient #1 for an asthma attack.[2]  That summer, relator sent an email, offering a theater ticket to his work colleagues; patient #1 accepted the offer.  Over the course of the next year and a half, relator treated patient #1 on six separate occasions, although both parties acknowledge that relator was not patient #1’s primary physician.[3]

            Although relator was married, his friendship with patient #1 developed into a sexual relationship.  At first, the touching involved back rubs over patient #1’s clothing, but eventually relator encouraged patient #1 to remove her blouse and reassured her by explaining that he was a doctor and that he had “seen thousands of breasts.”  Patient #1 complied with relator’s request, and he proceeded to “massage[] [her] front and suck[] [her] breasts.”  During some of their encounters, patient #1 was hospitalized and under heavy medication.  For example, in a notarized statement, patient #1 explained:

9.         In April 1999, I was hospitalized for severe asthma at the University of Minnesota Hospital.  I was on IV prednisone and was receiving oxygen through a nasal cannula.  [Relator], who has privileges at this hospital, came to my room wearing his work clothes and asked if I wanted a back rub.  He pulled up my gown, caressed other areas and sucked my breasts trying to stimulate them.  I nudged his hand away and he stated that he was trying to make me feel good. 


10.       In November of 1999, I was hospitalized for an exacerbation of my asthma and was also suffering from bronchitis.  I was in a double room with another patient.  I was receiving IV medications and was on oxygen.  [Relator] came in and started to caress and suck my breasts.  He also stated he wanted to make me feel better and asked if I ever had oral sex.  I said “no” and he put his head down by my vagina.  I said “no” and put my hand near my vaginal region.  Again, [relator] stated that he just wanted to give me pleasure. 


As late as February 2001, relator sent patient #1 a note that read:

Yesterday’s great big hug apparently didn’t cure you.  So today I’m giving you a great big pair of lips, with which to administer a great big “kiss better.”  Medical science has demonstrated that this remedy is infallible.  However, you will have to administer the treatment yourself since I don’t know all the places [you are] hurt.  Just press the great big lips to any affected areas.  Get better soon.  I hate having you sick and in pain.


(Emphasis added.)  Patient #1 alleged a number of other incidents, and relator has admitted to having a sexual relationship with her. 

In March or April 2001, the sexual relationship ended when relator told patient #1 that he had disclosed their relationship to his wife.  In April, patient #1 attempted to avoid contact with relator and eventually reported her concerns to a work supervisor.  In June, patient #1 took a medical leave of absence from work and obtained a restraining order because she felt that relator was stalking her.  The university conducted an internal investigation and concluded that relator’s conduct was “of a sexual nature, that the conduct was unwelcome, and that the escalating pattern in 2000 and 2001 created an intimidating, hostile, and offensive working environment.”  On September 28, 2001, BHS terminated relator’s employment for sexually harassing patient #1.[4]

After receiving notice that relator had allegedly engaged in sexual contact with a patient, the Complaint Review Committee (committee) of the Minnesota Board of Medical Practice (board) conducted a separate investigation into the allegations made by patient #1.  When negotiations between the committee and relator proved unsuccessful, the committee initiated a contested case before the Office of Administrative Hearings by filing a notice and order for prehearing conference and hearing (contested-case notice) in December 2003.  The contested-case notice alleged, among other things, that relator had engaged in conduct with a patient that was sexual, in violation of Minn. Stat. § 147.091, subd. 1(t) (2004).  Pursuant to Minn. Stat. § 147.092 (2004), relator requested a probable-cause hearing.  Relator acknowledged that his relationship with patient #1 was sexual in nature, but specifically denied that she was, in fact, his patient.  An administrative-law judge (ALJ) concluded that there was probable cause to believe that there was a physician-patient relationship between relator and patient #1 and allowed the allegations to go forward. 

The parties each moved for summary disposition, adopting the factual allegations of the contested-case notice.  Because the essential facts were not in dispute, the committee argued that relator had violated several disciplinary provisions of the Minnesota Medical Practices Act, including Minn. Stat. § 147.091, subds. 1(g) (unethical conduct); 1(k) (unprofessional conduct); and 1(t) (2004) (sexual conduct with a patient).  The ALJ granted the committee’s motion for summary disposition on the issue of whether relator “[e]ngag[ed] in conduct with a patient which is sexual or may reasonably be interpreted [by the patient] as sexual,” in violation of Minn. Stat. § 147.091, subd. 1(t).  But because there were “sufficient facts in dispute concerning [relator’s] prescribing practices and the accepted professional standards,” the ALJ granted partial summary disposition to the committee on the issue of whether relator had engaged in conduct “demonstrat[ing] a willful or careless disregard for the health, welfare or safety of a patient,” in violation of Minn. Stat. § 147.091, subd. 1(g).  And because the committee did not establish that relator’s “actions constitute[d] unprofessional conduct, and ha[d] not established the appropriate standard of professional conduct,” the ALJ also granted partial summary disposition to the committee on the issue of whether relator had “engag[ed] in unprofessional conduct,” in violation of Minn. Stat. § 147.091, subd. 1(k).

The committee then moved to certify the record of the ALJ’s order for review and action by the board.  Because both parties agreed that there was a controlling question of law as to whether relator had engaged in sexual activity with a patient and because there were no material facts in dispute that would prevent the board’s review of that issue, the ALJ certified the record to the board “for such action as it deems appropriate,” pursuant to Minn. R. 1400.7600(A) (2003).

Post-certification, the committee requested that the board revoke relator’s license to practice medicine in the state of Minnesota.  The board heard argument from both parties.  Relator maintained that he did not have a physician-patient relationship with patient #1.  After deliberations, the committee concluded that patient #1 was relator’s patient and that he had violated Minn. Stat. § 147.091, subds. 1(g), 1(k), and 1(t).  First, and relating to Minn. Stat. § 147.091, subd. 1(g), the board found by a preponderance of the evidence that

[relator] engaged in unethical conduct, demonstrating a careless disregard for the health, welfare, and safety of patient #1, by using his status as her physician to have sexual contact with her. . . .  Patient #1 was a vulnerable person.  [Relator] acquired knowledge of patient #1’s vulnerability through the physician-patient relationship [and] used this knowledge to repeatedly exploit patient #1’s vulnerability.  [Relator] demonstrated a careless disregard . . . by orally and manually stimulating patient #1’s breasts and kissing patient #1, occasionally using his status as a physician to reassure her that his conduct was appropriate.  [The] behavior escalated to the point where he attempted to have oral sex with patient #1 while she was hospitalized, weak, and receiving oxygen and intravenous therapy. 


Second, relating to Minn. Stat. § 147.091, subd. 1(k), the board found that relator engaged in unprofessional conduct and that relator’s sexual behavior did not “adhere[] to the minimal standards of acceptable and prevailing medical practice.”  Third, relating to Minn. Stat. § 147.091, subd. 1(t), the board found that relator “engaged in conduct with a patient that was sexual, including but not limited to, orally and manually stimulating patient #1’s breasts, kissing patient #1, and attempting to have oral sex with patient #1.”  The board explained that patient #1 was relator’s patient “regardless of whether the physician-relationship was their primary relationship or a secondary relationship.”  The board also noted that it had “no reason to believe that [relator] will refrain from engaging in similar conduct in the future” and that relator “remains a threat to other patients.”  Accordingly, and pursuant to its authority under Minn. Stat. § 147.141 (2004), the board revoked relator’s license to practice medicine in the state of Minnesota and ordered him to pay a civil penalty in the amount of $10,000.  This appeal follows. 


            Summary disposition is the administrative equivalent of summary judgment.  Pietsch v. Minn. Bd. of Chiropractic Exam’rs, 683 N.W.2d 303, 306 (Minn. 2004) (citing Minn. R. 1400.5500(K) (2003)).  On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  When summary judgment is granted after applying the law to undisputed facts, the legal conclusion is reviewed de novo by this court.  Lefto v. Hoggsbreath Enters., 581 N.W.2d 855, 856 (Minn. 1998).

Agency decisions are presumed correct, and this court defers to an agency’s expertise and its special knowledge in the field of its technical training, education, and experience.  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977).  An agency decision will be reversed only when it constitutes an error of law or when the findings are arbitrary and capricious or unsupported by substantial evidence.  In re Hutchinson, 440 N.W.2d 171, 176 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989).  An agency’s conclusions are not arbitrary and capricious if a rational connection between the facts found and the choice made has been articulated.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001).  Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  Nat’l Audubon Soc’y v. Minn. Pollution Control Agency, 569 N.W.2d 211, 215 (Minn. App. 1997), review denied (Minn. Dec. 16, 1997). 


            Although relator acknowledges that the allegations contained in the contested-case notice “were sufficient factual grounds on which the decision-maker could determine as a matter of law whether the alleged violations had occurred,” he contends that the board made a number of factual assumptions beyond those articulated in the notice.  Specifically, relator claims that the board failed to recognize that (1) the sexual relationship was welcome, (2) knowledge of patient #1’s health was not obtained through the physician-patient relationship, (3) the fact that patient #1 stayed with friends during the summer of 2001 was unrelated to her relationship with relator, (4) patient #1 was not harmed by the relationship, (5) the sexual relationship was not dependent on his role as a physician and her role as a “patient,” (6) the nature and relevance of patient #1’s vulnerability are unexplained, and (7) the board’s conclusion that relator presents a danger to others is unfounded. 

We conclude that each of these factual challenges is without merit and briefly discuss them here.  First, even if the sexual relationship were welcome, this would not change the fact that relator could have taken advantage of his role as a physician by exploiting patient #1’s vulnerability.  Moreover, Minn. Stat. § 147.191, subd. 1(t), does not distinguish between welcome and unwelcome sexual conduct.  Second, the record supports the fact that relator obtained knowledge about patient #1’s health condition because of his role as one of her treating physicians.  Third, the board’s finding that patient #1 “stayed with friends throughout the summer of 2001 because she did not feel safe at home” is also found in the contested-case notice, whose facts relator agreed to accept as true for purposes of summary disposition.  Fourth, while recognizing that actual injury is not required, the board expressed its opinion that patient #1 was “injured” by relator’s actions when she, among other things, obtained a temporary restraining order against him.  This finding is supported by the record, and, furthermore, it cannot be said to have been a determining factor in the board’s decision.  Fifth, the record also makes clear that relator used his status as a physician to gain access to patient #1 and, as the board explained, “blurred the distinction between their personal and professional interactions” by for example, “sending her notes that suggested that hugs and kisses were medically proven methods of curing pain.”  Sixth, although relator claims that the board needs to explain “[t]he nature and relevance of [patient #1’s] alleged vulnerability,” the board does not need to elaborate upon every one of its observations.  Seventh, and finally, it is well within the discretion of the board to conclude that it “has no reason to believe that [relator] will refrain from engaging in similar conduct in the future” and that he remains a threat to other patients.  See Padilla v. Minn. State Bd. of Med. Exam’rs, 382 N.W.2d 876, 887 (Minn. App. 1986) (stating that one of the very functions of the board is to consider “the harm to the public if such acts remain unpunished”), review denied (Minn. Apr. 24, 1986). 

A review of the board’s decision reveals that it did not make factual assumptions beyond those agreed on by the parties at the hearing before the ALJ for purposes of summary disposition.  In fact, the board specifically acknowledged that the allegations of the notice were “incorporated by reference and were treated as undisputed material facts for the purpose of deciding the cross motions for summary disposition” by the ALJ.  Our remaining focus is limited to review of the legal issues presented below.  Any lingering dispute about facts that the board might have relied on to reach its decision would be entirely speculative, given the fact that the board was charged with reviewing the record certified by the ALJ “for such action as it deem[ed] appropriate.” 


Relator challenges the board’s conclusion that he engaged in prohibited conduct in violation of the Medical Practices Act (MPA).  The crux of relator’s argument is that patient #1 was not actually his “patient” within the meaning of the MPA.  Whether a statute has been properly construed is a question of law subject to de novo review by this court.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  When interpreting a statute, we examine

whether the statute’s language, on its face, is clear or ambiguous.  A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.  Basic canons of statutory construction instruct that we are to construe words and phrases according to their plain and ordinary meaning.  A statute should be interpreted, whenever possible, to give effect to all of its provisions; no word, phrase, or sentence should be deemed superfluous, void, or insignificant.  We are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations. Finally, courts should construe a statute to avoid absurd results and unjust consequences.  When construing a statute, our goal is to ascertain and effectuate the intention of the legislature.


Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277-78 (Minn. 2000) (citations and quotations omitted).

            Under Minnesota law, the board “may impose disciplinary action as described in section 147.141 against any physician” when he or she has engaged in prohibited conduct.  Minn. Stat. § 147.091, subd. 1 (2004).  Prohibited conduct includes: 

(g)       Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm the public, or demonstrating a willful or careless disregard for the health, welfare or safety of a patient; or medical practice which is professionally incompetent, in that it may create unnecessary danger to any patient’s life, health, or safety, in any of which cases, proof of actual injury need not be established.


. . . .


(k)       Engaging in unprofessional conduct.  Unprofessional conduct shall include any departure from or the failure to conform to the minimal standards of acceptable and prevailing medical practice in which proceeding actual injury to a patient need not be established.


. . . .


(t)        Engaging in conduct with a patient which is sexual or may reasonably be interpreted by the patient as sexual, or in any verbal behavior which is seductive or sexually demeaning to a patient.


Id.  When any one of these provisions has been violated by a licensed physician, it is within the board’s discretion, as the licensing regulator of the medical profession, to “revoke the [physician’s] license.”  Minn. Stat. § 147.141(1) (2004).  The board is also authorized to “impose a civil penalty not exceeding $10,000.”  Minn. Stat. § 147.141(5) (2004).  It is decidedly within the discretion of the board to select the appropriate punishment and sanction.  See Padilla, 382 N.W.2d at 887 (explaining that “the nature and duration of the discipline is best determined by [the physician’s] fellow professionals, who are in a superior position to evaluate the breaches of trust and unprofessional conduct”). 

A.        Definition of “Patient”

            Relator argues that patient #1 was not his “patient” when their sexual relationship began.  While it is clear that the MPA does not specifically define the term “patient,” it is equally clear that this court is to “construe words . . . according to their plain and ordinary meaning.”  Schroedl, 616 N.W.2d at 277; see also Minn. Stat. § 645.08(1) (2004) (“words . . . are construed according to . . . their common and approved usage”).  As it is commonly understood, a patient is “[o]ne who receives medical attention, care, or treatment.”  The American Heritage Dictionary 1327 (3d ed. 1992); see also Am. Med. Ass’n, Code of Medical Ethics, E-10.015 (2002) (“A patient-physician relationship exists when a physician serves a patient’s medical needs, generally by mutual consent between physician and patient.”); Black’s Law Dictionary 1148 (7th ed. 1999) (defining patient as “[a] person under medical or psychiatric care”).  Under these well-accepted definitions, the board could have reasonably concluded that patient #1 was a “patient” for purposes of imposing discipline under the MPA. 

            Moreover, while this court conducts a de novo review of an agency’s statutory interpretation, when an agency reasonably interprets a statute, it is the role of the legislature or the supreme court, and not the court of appeals, to overrule that interpretation.  In re Univ. of Minn., 566 N.W.2d 98, 103 (Minn. App. 1997) (citing In re Hyman Freightways, Inc., 488 N.W.2d 503, 505 (Minn. App. 1992)).  When a statute is couched in general terms, the agency is left with “the duty of determining precisely what standards will fulfill the [] policy enunciated by the legislature.”  See In re Indep. Spent Fuel Storage Installation, 501 N.W.2d 638, 649 (Minn. App. 1993) (in the environmental regulatory context), review denied (Minn. July 15, 1993); see also Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984) (noting that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer”).  Finally, “an agency’s interpretation of the statutes it administers is entitled to deference and should be upheld, absent a finding that it is in conflict with the express purpose of the [a]ct and the intention of the legislature.”  Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn. 1988).

            The board’s overarching purpose is “to protect the public from the unprofessional, improper, incompetent, and unlawful practice of medicine.”  Minn. Stat. § 147.001 (2004).  The board itself is in a unique position to understand and interpret the meaning of the term “patient.”  Given the broad purpose of the board’s regulatory authority, it must be left to that specialized body—primarily composed of licensed physicians—to uphold and enforce the standards of the medical profession.  See Minn. Stat. § 147.01, subd. 1 (2004) (requiring that 10 of the 16 board members “be licensed to practice medicine”); Minn. Stat. § 147.141 (giving the board authority to “revoke [a medical] license” when a physician “has violated a provisionor provisions of sections 147.01 to 147.22”).  Without specifically defining the term “patient” beyond its plain and ordinary meaning here, we defer to the board’s reasonable discretion to decide when a person becomes a “patient” for the purpose of regulating medical licensures.  Accordingly, the board acted well within its discretion by determining that patient #1 was relator’s patient within the meaning of the MPA.   

            Relator also argues that while patient #1 might have been his patient for a short time, the statutory prohibition against sexual relations with a patient does not apply to former patients.  But the record makes clear that relator continued to treat and prescribe medication to patient #1 while he was simultaneously having a sexual relationship with her.  And while a Minnesota appellate court has not yet reviewed a disciplinary action in which a physician claims that the sexual relationship occurred after the termination of the physician-patient relationship, in the context of a disciplinary proceeding, courts in other jurisdictions have placed the burden to terminate the physician-patient relationship on the physician.  See, e.g., Wharton v. Sobol, 580 N.Y.S.2d 554, 555 (N.Y. Sup. Ct. 1992) (affirming censure and reprimand of physician who “fail[ed] to appropriately terminate his professional relationship with patient” prior to engaging in sexual contact with patient); Larsen v. Comm’n on Med. Competency, 585 N.W.2d 801, 803, 810 (N.D. 1998) (affirming revocation of physician’s license for sexual misconduct with patient where physician failed to properly terminate physician-patient relationship because he continued to see patient professionally after advising her by letter that he could not continue to be her physician).[5] There is no evidence in the record that relator terminated the physician-patient relationship here.

B.        Bases for License Revocation

            Because we have determined that patient #1 was a “patient” within the ordinary and plainly understood meaning of that term and relator never attempted to terminate the physician-patient relationship with patient #1, relator’s challenge to the board’s conclusions that he engaged in (1) unethical, (2) unprofessional, and (3) sexual conduct with a patient are similarly unavailing.  Relator admits that he engaged in sexual conduct with patient #1.  Because the board determined that patient #1 was a “patient” within the meaning of the MPA, relator’s conduct clearly violated the statutory prohibition that a physician may not “engage[e] in conduct with a patient which is sexual.”  Minn. Stat. § 147.091, subd. 1(t).  This violation alone may serve as a basis for revocation of a medical license, and it was within the board’s discretion to do so.  See Minn. Stat. § 147.141(1) (“When the board finds that a licensed physician . . . has violated a provision . . . of sections 147.01 to 147.22, it may . . . revoke [the physician’s] license[.]”). 

Nevertheless, the board also determined that relator violated Minn. Stat. § 147.091, subd. 1(g) (by engaging in unethical conduct) and 1(k) (by engaging in unprofessional conduct), by virtue of his sexual relationship with patient #1.  This determination was not erroneous.  Minnesota courts have previously affirmed medical-license revocations for “unethical conduct” under subdivision 1(g) where a physician engaged in sexual conduct with a patient.  See, e.g., In re Freidenson, 574 N.W.2d 463, 466-67 (Minn. App. 1998) (upholding revocation where physician performed a pelvic exam without wearing gloves), review denied (Minn. Apr. 30, 1998); Padilla, 382 N.W.2d at 886 (upholding revocation where physician “made unwarranted sexual advances, touchings and solicitations” of a patient). 

Relating to subdivision 1(k), the Minnesota Supreme Court has previously explained that

‘[u]nprofessional conduct’ is conduct which violates those standards of professional behavior which through professional experience have become established, by the consensus of the expert opinion of the members, as reasonably necessary for the protection of the public interest.  In establishing the necessity for and the existence of such standards, every member of the profession should be regarded as an expert. 


Reyburn v. Minn. State Bd. of Optometry, 247 Minn. 520, 523-24, 78 N.W.2d 351, 355 (1956).  It is within the province of a professional regulatory board to determine the exact meaning of the term “unprofessional.”  Id. at 524, 78 N.W.2d at 355.  And this court has previously upheld the revocation of a physician’s license for “unprofessional conduct” where the physician engaged in sexual conduct.  Padilla, 382 N.W.2d at 886. 


            Finally, in an all-encompassing argument, relator asserts that the board abused its discretion by revoking his medical license.  In an effort to illustrate such an abuse, relator attempts to compare his case to past disciplinary proceedings before the board.  But each case is different, and it does not matter whether the board has sparingly revoked licenses in the past.  The point remains that the legislature has given the board wide discretion to regulate its own profession and to revoke licenses when a physician ignores or violates the statutorily articulated standards governing physician conduct with patients.  See generally Minn. Stat. § 147.091, subd. 1 (enunciating grounds for disciplinary action). 

While the revocation of a professional license is a harsh punishment, absent an abuse of discretion, it is not within the province of this court to second-guess the reasoned judgment of a professional board composed primarily of relator’s professional peers.  As in Friedenson, “in the face of the record and the overwhelming evidence supporting the findings of the board of serious violations by relator, we are compelled to affirm the revocation of relator’s license.”  574 N.W.2d at 468.  And as we have previously explained, “[p]rofessionals have a deep responsibility not to abuse the trust which licensure places in them.  There is no other profession in which one passes so completely within the power and control of another as does the medical patient.”  Padilla, 382 N.W.2d at 887.  Here, the board did not err by concluding that relator had violated the standards of the medical profession nor was it an abuse of the board’s discretion to revoke relator’s license to practice medicine in the state of Minnesota


[1] Because the original allegations against relator initially involved two patients and the board’s order employs the term “patient #1,” we also use the term throughout this opinion to identify the patient.

[2] Relator claims that the physician-patient relationship ended after this initial treatment. 

[3] In addition, patient #1 did not consider relator to be her doctor, and relator did not consider patient #1 to be his patient.

[4] Relator filed a grievance with the university, asking for further review of the termination decision.  When proceedings under the university’s grievance policy did not resolve the dispute, relator entered into a binding agreement to arbitrate the matter.  An arbitration panel upheld the termination and found that relator violated the university’s sexual-harassment policy between February and May 2001, even though relator’s behavior might have been welcomed or “not offensive before that point.”

[5] Relator also argues that his extramarital relationship with patient #1 should be afforded the same kind of legal protection as the relationships between spouses or family members.  The board characterizes this argument as a constitutional one.  However it is characterized, we conclude that relator’s extramarital affair with patient #1 does not qualify for constitutional protection.