author: Judge CASEBOLT.

text:
    COLORADO STATE BOARD OF MEDICAL EXAMINERS, Appellee, v. Gary A. OGIN, M.D., Appellant.
    No. 01CA1508.
    Colorado Court of Appeals, Div. I.
    Sept. 12, 2002.

      Ken Salazar, Attorney General, Cheryl K. Hara, Assistant Attorney General, Claudia Brett Goldin, Assistant Attorney General, Denver, Colorado, for Appellee.
    Sherman & Howard, LLC, Frederick Y. Yu, Claire E. Douthit, Denver, Colorado, for Appellant.
   Opinion by

Judge CASEBOLT.

Respondent, Gary A. Ogin, M.D., appeals the order of the Colorado State Board of Medical Examiners that revoked his license to practice medicine. We affirm.

Respondent practiced as an anesthesiologist in the administration of surgical anesthesia and in treating patients for alleviation of pain through the administration of medication, a practice known as interventional pain management (IPM). Respondent suffers from a sleep disorder, known as idiopathic central nervous system hypersomnia, which causes him to become drowsy and fall asleep in environments of low stimulation. Individuals with that disorder also have trouble maintaining wakefulness during the daytime.

An inquiry panel of the board brought disciplinary charges against respondent based on several instances of unprofessional conduct, in addition to the charge that his disability rendered him unsafe to practice medicine. The charges were supported by evidence that, on a number of occasions, respondent fell asleep while administering anesthesia to patients during surgery. Over the same period, respondent accidentally caused three pneumothoraces-a puncture of the chest wall that can lead to lung collapse-while administering IPM medication. Respondent also engaged in sexual contact with a patient while she was anesthetized during knee surgery.

An administrative law judge (ALJ), sitting in leu of a hearings panel of the board, held an evidentiary hearing on the charges and issued an initial decision finding that the inquiry panel had proved all of the charges against respondent and that he was unsafe to practice anesthesiology, either in surgical practice or in IPM. As sanctions, the ALJ adopted the inquiry panel's recommendations and restricted respondent's practice to IPM with strict conditions of peer monitoring and treatment for his illness.

Respondent filed exceptions to the ALJ's decision. A separate hearings panel of the board then reviewed the ALJ's decision and heard additional argument from respondent and counsel for the inquiry panel. The hearings panel adopted all of the ALJ's findings and conclusions, but set aside the sanctions. Instead, the panel revoked respondent's license to practice medicine. This appeal followed.

I.

Respondent asserts that the board's revocation of his license for conduct resulting from his sleep disorder violates the Americans with Disabilities Act (ADA). We disagree.

Title II of the ADA provides that no otherwise qualified individual with a disability shall, by reason of such disability, be exelud-ed from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132 (1994); see Community Hosp. v. Fail, 969 P.2d 667 (Colo.1998); Colo. State Bd. of Dental Exam'rs v. Major, 996 P.2d 246 (Colo.App.1999).

The parties agree, and we concur, that as a "public entity" within the meaning of 42 U.S.C. § 12181(1)(B) (1994), the board and its licensing activities are subject to ADA Title II. See 28 C.FR. § 35.130(b)(6) (public entity may not administer a licensing program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability); Hason v. Med. Bd., 279 F.3d 1167 (9th Cir.2002)(medical licensing falls within scope of ADA Title II); see also People v. Reynolds, 933 P.2d 1295 (Colo.1997)(ADA applicable to attorney discipline proceedings); Colo. State Bd. of Dental Exam'rs v. Major, supra (ADA applicable to dentist disciplinary proceedings).

The ADA was enacted not only to remedy discrimination in the form of intentional exclusion, but also to mandate reasonable modifications to existing policies or otherwise to reasonably accommodate individuals with disabilities. 42 U.S.C. § 12101(29)(5); PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); Thompson v. Colorado, 278 F.3d 1020 (10th Cir.2001)(Title II's primary focus is to remedy the failure of public entities to make reasonable accommodations for persons with disabilities).

Accordingly, the ADA imposes the affirmative duty to attempt reasonable accommodations for qualified individuals with disabilities. Washington v. Indiana High Sch. Athletic Ass'n, 181 F.3d 840 (7th Cir.1999)(failure to provide reasonable accommodation is actionable discrimination under Title I1). "Qualified individuals" are defined as those individuals with disabilities who can meet a public entity's essential eligibility requirements if provided reasonable accommodation. 28 C.F.R. § 35.104; Community Hosp. v. Fail, supro (ADA Title I employment action).

What constitutes reasonable accommodation requires an individualized assessment. Wong v. Regents of the Univ. of Calif., 192 F.3d 807 (9th Cir.1999). The duty to make reasonable accommodation does not require a public entity to fundamentally alter the nature of the service it provides. 42 U.S.C. § 121312); 28 C.F.R. § 35.130(b)(7); Thompson v. Colorado, supra. And, the ADA does not prevent professional licensing agencies from imposing discipline if the offender is not a qualified individual with a disability. People v. Reynolds, supra; Colo. State Bd. of Dental Exam'rs v. Major, supra.

Likewise, the ADA does not protect an individual with a disability who, by virtue of the disability, is a direct threat to public safety. Kirbens v. Wyo. State Bd. of Med., 992 P.2d 1056 (Wyo.1999). A person who poses a significant risk to public safety is not a qualified individual with a disability if reasonable modifications to the public entity's policies, practices, or procedures will not eliminate the risk. 28 C.F.R. pt. 35, app. A at 481; Kirbens v. Wyo. State Bd. of Med., supra.

A.

The ALJ found that respondent's sleep disorder is a disability under the ADA and that the acts constituting unprofessional conduct (excepting the sexual misconduct) resulted from his disability. The ALJ also found that respondent poses a significant risk to his patients' safety because of his disability and that no reasonable accommodation could be made that would permit respondent to practice medicine safely. Accordingly, the ALJ found that respondent is not a qualified individual with a disability. The board adopted all of these findings and conclusions.

The board's conclusion that no reasonable accommodation can be made for respondent's disability is a finding of ultimate fact that we must uphold if it has a reasonable basis in law and is supported by substantial evidence in the record. See Colo. State Bd. of Dental Exam'rs v. Mojor, supra. Substantial evidence is probative, credible, and competent evidence that warrants a reasonable belief in the existence of a fact without regard to contradictory evidence or inference. Colo. State Bd. of Med. Exam'rs v. Davis, 893 P.2d 1365 (Colo.App.1995).

Substantial evidence in the record supports the board's decision that no reasonable accommodation could be made that would permit respondent to practice IPM or surgical anesthesia while ensuring patient safety. See People v. Reynolds, supra (concluding that accommodation proposed by attorney would not safeguard the public interest); see also Alexander v. Margolis, 921 F.Supp. 482 (W.D.Mich.1995)(no reasonable modification could be made to regulations restricting medical practice); State ex rel. Oklahoma Bar Ass'n v. Busch, 919 P.2d 1114 (Okla.1996); Kirbens v. Wyo. State Bd. of Med., supra.

The board found, with evidentiary support, that:

In this case, the fact[s]l proven at hearing established that with or without reasonable accommodation respondent cannot practice anesthesiology or interventional pain management without risk of injury or death to his patient. The evidence showed that respondent suffers from a lifelong condition for which there is no cure and uncertain remedial measure[s] which can be taken to prevent its symptoms. With or without monitors and medications, respondent falls asleep during surgical procedures and has a higher inciden[ce] of pneumothoraces during interventional pain management procedures. The evidence further established that no medication was effective in insuring that respondent would not fall asleep. Even more important, since respondent was inclined to self medicate and alter dosages, it is not possible to monitor respondent's response to medications in order to find medication which reliably works to keep respondent awake. Therefore, respondent is not a qualified person with a disability entitled to the protections of the ADA.

The board also found, again with record support, that certain aspects of respondent's condition can escape detection by others even under close monitoring, that respondent is often unaware of his lapses of consciousness, and that he had a history of denial, a lack of self-awareness, and significant medical noncompliance with respect to his sleep disorder, all of which limit treatment.

This evidence, as well as the documented instances in which respondent's disability resulted in substandard care while practicing both surgical anesthesia and IPM, supports the conclusion that no reasonable accommodation could eliminate the risk to patient safety posed by respondent's disability. See Florida Bar v. Clement, 662 So.2d 690 (Fla.1995)(where nothing can prevent repetition of the misconduct, no reasonable accommodation is possible that will protect the interest guarded by the licensing authority, and the ADA does not impair the agency's ability to impose discipline).

Because these findings and conclusions have a reasonable basis in law and substantial evidentiary support, we must uphold them on appeal.

B.

Respondent nevertheless contends that the board did not afford him an adequate opportunity to present evidence of reasonable accommodation to allow him to practice medicine limited to IPM and that the disciplinary proceeding itself did not provide an adequate forum to consider all of the options for reasonable accommodation. Initially, we note that the board acted in part upon evidence of past unprofessional conduct, which reasonable accommodation cannot change. However, assuming, without deciding, that the ADA requires public entities to provide adequate opportunity to address reasonable accommodation of an individual's disability in disciplinary proceedings, we conclude that the board's proceeding here provided that opportunity.

The ALJ conducted an eight-day hearing on the inquiry panel's charges of unprofessional conduct. Respondent was permitted ample opportunity to present evidence and argument, including his position that he had voluntarily ceased practicing surgical anesthesia, but with certain accommodation, he could safely practice IPM. As previously noted, the ALJ and the board substantively considered the issue of reasonable accommodation, and the ALJ accepted respondent's position in part, but the board's ultimate finding that respondent is not a qualified individual with a disability is supported by substantial evidence.

C.

For the same reasons, we reject respondent's contention that the board's decision is not entitled to deference because neither it nor the ALJ conducted a full, fair, and candid evaluation of the issue of reasonable accommodation. See Wong v. Regents of the Univ. of Calif., supra (decision of public entity that fails carefully to evaluate reasonable accommodation is not entitled to deference upon review).

Respondent has not alleged any procedural irregularity or cited any evidence of bias on the part of the hearing panel, and we have found none. See deKoevend v. Bd. of Educ., 688 P.2d 219 (Colo.1984)(actions of administrative board are entitled to presumption of regularity). To the contrary, the written decisions by the board and the ALJ amply illustrate a full and fair review of the charges against respondent, with particular consideration of reasonable accommodation that respondent contends would permit him safely to practice IPM. +

Notwithstanding respondent's contrary argument, while the ALJ and the board were required to include findings and conclusions to support their decisions on the material issues, that analysis need not be exhaustive. The ALJ and the board made reference to evidence that each found persuasive. They were not required to make findings as to respondent's contrary evidence concerning each disputed issue. See Sundance Hills Homeowners Ass'n v. Bd. of County Comm'rs, 188 Colo. 321, 534 P.2d 1212 (1975); Ross v. Denver Dep't of Health & Hosps., 883 P.2d 516 (Colo.App.1994)(no requirement that findings be exhaustive).

IL

Respondent next contends the board's conclusion-that he provided substandard care when he caused pneumothoraces in certain patients-was erroneous as a matter of law. We disagree.

The nature and existence of a standard of practice must be established by expert testimony. We will uphold the board's finding of an applicable standard of practice if it has a reasonable basis in law and is supported by substantial evidence. Colo. State Bd. of Med. Exam'rs v. McCroskey, 880 P.2d 1188 (Colo.1994).

Here, the board found that respondent had caused three pneumothoraces during IPM procedures. The board based its finding on testimony by an expert in the field who opined that respondent had provided substandard care when he caused his patients to suffer pneumothoraces. Hence, the existence of a standard of practice was established through the expert, and the board did not create such a standard from its own knowledge.

Relying upon Napier v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978), and noting that pneumothoraces are recognized complications of IPM procedures, respondent nevertheless contends that the evidence was insufficient to support the finding that the mere occurrence of these pneumothoraces established substandard care. We disagree.

In Napier, the court concluded that expert testimony regarding the occurrence of a pneumothorax was insufficient by itself to establish that the treating physician had acted negligently. There, an expert had opined that the patient had received proper care and that there was no wrongdoing on the part of the physician.

Here, in contrast, the expert concluded that respondent had failed to observe the standard of care based on multiple occurrences of the pneumothoraces in a relatively small number of IPM procedures. The expert also based his opinion on the fact that the pneumothoraces occurred during the same period as two instances when respondent fell asleep while administering anesthesia during surgery. Further, the expert cited his experience working with physicians suffering from some type of disability and opined that an increased rate of complications frequently resulted under such conditions, which, in his opinion, had also occurred here.

All of these bases were cited by the ALJ and by the board as supporting the finding that respondent caused the pneumothoraces and that these occurrences were below the applicable standard of care. Because these findings are supported by substantial evidence, we will not disturb them. See Colo. State Bd. of Med. Exam'rs v. McCroskey, supra.

IIL

Respondent contends that the board erred in determining that he committed an act of unprofessional conduct when he touched a female patient's breast during surgery on her knee. We disagree.

Engaging in sexual contact with a patient in the course of care constitutes unprofessional conduct for which a physician is subject to disciplinary action. Section 12-36-117(1)(r), C.R.S.2001. Sexual contact is defined as the knowing touching of a person's intimate parts, including the breasts, for the purpose of sexual arousal, gratification, or abuse. See § 18-38-401(2), (4), C.R.S.2001.

The ALJ and the board found that respondent touched the patient's breast for the purpose of sexual abuse. The ALJ determined, and we concur, that "abuse" in this instance includes immoderate or improper use. See Black's Law Dictionary 10 (6th ed.1990).

Respondent asserts that there was no evidence of knowing touching for the purpose of abuse. We disagree.

Substantial evidence supports the finding that respondent's touching of the victim's breast was knowingly performed and was an immoderate or improper use. Respondent asked a rhetorical question during surgery whether the patient had breast implants, and, following this question, he squeezed her bare breast with his hands. The evidence negated any medical purpose for this touching, which was otherwise a highly inappropriate act that exploited the patient's vulnerability while under sedation.

This conduct meets the requirements of a knowing touching for purposes of abuse. Hence, we reject this contention.

We likewise reject respondent's assertion that the sexual contact charge 'was barred by the statute of limitations applicable to civil claims for sexual assault or by the doctrine of laches.

Statutes of Imitation applicable to the commencement of civil and eriminal proceedings do not apply to the institution of administrative disciplinary proceedings. Colo. State Bd. of Med. Exam'rs v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (1979). We therefore reject this contention.

The doctrine of laches is an affirmative defense requiring a showing that unconscionable delay in enforcing rights has prejudiced the party against whom relief is sought. Whether the elements of the doctrine are proved essentially presents a question of fact to be determined upon the evidence in the case. Montezuma Cty. Dep't of Soc. Servs. v. Laner, 937 P.2d 903 (Colo.App.1997).

Here, the ALJ rejected respondent's contention, finding no evidence to support the claim that the board had failed to exercise diligence in bringing the sexual contact charge. See City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo.1996). Respondent has not called to our attention any evidence to dispute this finding, and accordingly we will not disturb it on review.

IV.

Respondent contends that the inquiry panel's recommendation that he could continue practicing IPM under certain conditions, which the ALJ adopted, constituted a judicial admission that bound the board in its determination of sanctions. We disagree.

For disciplinary proceedings, the board is divided into two panels, each of which is empowered to act as either an inquiry or a hearings panel. If a case that is referred to one panel for investigation results in the filing of formal charges, the case must then be referred to the other panel-or an ALJ-for final hearing and determination of the charges. Section 12-36-118(1), C.R.S. 2001; Colo. State Bd. of Med. Exam'rs v. McCroskey, supra; People ex rel. Woodard v. Brown, 770 P.2d 1373 (Colo.App.1989). In any such proceeding, the inquiry panel and the hearings panel operate independently and are represented by separate counsel. People ex rel. Woodard v. Brown, supra.

This statutory scheme demonstrates that the hearings panel was not bound by any admissions or stipulations made by the inquiry panel. In addition, the inquiry panel's recommendations with respect to sanctions constituted a legal position and not an evidentiary fact that is subject to judicial admission. See Holiday Acres Prop. Owners Ass'n v. Wise, 998 P.2d 1106 (Colo.App.2000).

v.

We reject respondent's assertion that in deciding to revoke his license, the board incorrectly set aside or ignored findings of the ALJ. The record shows that the board did not reject any of the ALJ's eviden-tiary findings or conclusions, but rather affirmed and adopted them in their entirety. The board deviated from the ALJ's order only in its determination to revoke respondent's license rather than to permit him to practice IPM under certain conditions.

Respondent concedes that, in its review of an initial determination by an ALJ, the board may modify or set aside any recommended sanction and impose its own sanction in conformity with the facts and the law. Sections 12-36-118(1)(d), (5)(g)(III), 24-4-105(15)(b), C.R.S.2001; Colo. State Bd. of Med. Exam'rs v. Hoffner, 832 P.2d 1062 (Colo.App.1992).

The board is afforded great discretion in determining the appropriate sanction for unprofessional conduct, and its determination must be upheld on review unless it bears no relation to the conduct, is a gross abuse of discretion, or is manifestly excessive in relation to the needs of the public. In this regard, a reviewing court may not substitute its judgment for that of the board as to what constitutes appropriate sanctions. Colo. State Bd. of Med. Exam'rs v. Hoffner, supra; see also Colo. State Bd. of Med. Exam'rs v. McCroskey, supra.

Respondent contends that the board's actions in this instance were manifestly excessive in relation to the needs of the public. We conclude that the sanction imposed conformed to the facts and the law of the case.

In particular, we note the ALJ's finding, adopted by the board, that the evidence received at hearing established that respondent was not safe to practice either surgical anesthesia or IPM. Additionally, the board noted the incurable and progressive nature of respondent's disability, the fact that certain manifestations of his disorder that threaten patient safety can go undetected even under close monitoring, and his history of denial and noncompliance with treatment.

The hearings panel is required, as its first priority, to consider such sanctions as are necessary to protect the public. Section 12-36-118(b)(g)(III). We conclude that the sanction of license revocation was not manifestly excessive in relation to the need to ensure public safety.

VI.

For all of the reasons previously set forth, we reject respondent's final contention that the board's order is a denial of statutory right, contrary to law, arbitrary and capricious, and an abuse of discretion. See § 24-4-106(7), C.R.9.2001; Lawley v. Dep't of Higher Educ., 36 P.3d 1239 (Colo.2001); Colo. Ass'n of Pub. Employees v. Colo. Dep't of Pers., 991 P.2d 827 (Colo.App.1999).

The order is affirmed.

Judge METZGER and Judge WEBB concur.


source: Caselaw Access Project

author: Judge WEBB.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alexander STANLEY, Defendant-Appellant.
    No. 00CA1164.
    Colorado Court of Appeals, Div. I.
    Sept. 12, 2002.

      Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge WEBB.

Defendant, Alexander Stanley, appeals his judgment of conviction entered on jury verdicts finding him guilty of second degree assault and resisting arrest. He also appeals the trial court's order denying his Crim. P. 35(e) motion without a hearing. We reverse the judgment and remand the case for a new trial on the second degree assault charge.

After sentencing defendant to a lengthy term of incarceration in an unrelated criminal matter, the court recessed, leaving defendant seated at counsel table with his legs shackled. Two deputy sheriffs, an Arapahoe County district attorney investigator, a law clerk, and a court reporter were also in the courtroom.

The deputies allowed defendant a few minutes to compose himself. However, when a deputy approached defendant to return him to jail, defendant stood up, flipped over the defense table, and threw several chairs, one of which was deflected by the investigator. A third deputy entered the courtroom and pepper sprayed defendant, who then calmed down and was taken to jail.

Defendant was charged with felony criminal mischief, second degree assault against a peace officer (the investigator), and resisting arrest.

The trial court appointed counsel, who soon moved to withdraw citing irreconcilable differences with defendant. The court granted the motion to withdraw, continued the trial date, and informed defendant that it would appoint new counsel.

Defendant responded that he wished to proceed pro se and possibly obtain advisory counsel later. As the court began to question him about his request, defendant said that he was in pain from an assault by jail officers. The court then adjourned the hearing so that defendant could receive medical attention, noting that it would appoint new counsel, but also would consider defendant's request for advisory counsel.

When defendant appeared three days later, the trial court appointed advisory counsel and allowed defendant to proceed pro se. The court neither questioned him further nor explained why it had not appointed new counsel for him.

When the jury trial began, defendant represented himself, but repeatedly complained that he was not prepared because of difficulties communicating with advisory counsel and interference by Department of Corrections (DOC) officers However, advisory counsel was present throughout the trial.

Defendant conducted voir dire, made an opening statement, and cross-examined witnesses. At the close of the evidence, the trial court granted defendant's motion for judgment of acquittal on the felony criminal mischief count, but denied his motion as to the other two counts, on which the jury returned guilty verdicts.

The trial court sentenced defendant to imprisonment in DOC for six years on the assault count, to run consecutive to his sentence from the separate criminal case, and to three months in the county jail on the resisting arrest count, to be served consecutively to the sentence from the other case but concurrently with the assault sentence.

At the end of the sentencing hearing, defendant filed a motion to vacate or set aside the conviction under Crim. P. 85(c) which the trial court denied without conducting a hearing. This appeal followed.

L.

Defendant first contends the trial court erred by not advising him adequately of his right to counsel under the Sixth Amendment. Therefore, he argues, his purported waiver of this right was invalid. We agree.

The Sixth Amendment to the United States Constitution guarantees the right to counsel, which is essential to a fair trial. See also Colo. Const. art. II, § 16. As a corollary to this right, a defendant has the right to self-representation. However, before being allowed to proceed pro se, a defendant must make a knowing and intelligent waiver of the right to counsel. People v. Arguello, 772 P.2d 87 (Colo.1989). Although a defendant need not have the skill and experience of a lawyer, the defendant must be aware of the dangers and disadvantages of self-representation. Reliford v. People, 195 Colo. 549, 552, 579 P.2d 1145, 1147 (1978).

A waiver may be an express statement by the defendant to relinquish the benefits of counsel, or it may be implied from the cireumstances of the case. An implied walver has been described as a forfeiture of the right to counsel, rather than a deliberate and informed decision to waive that right. People v. Arguello, supra.

Whether an asserted waiver is express or implied, courts indulge every reasonable presumption against it, and the People bear the burden of demonstrating that the waiver was knowingly, intelligently, and voluntarily made. King v. People, 728 P.2d 1264 (Colo.1986). If the People establish a prima facie case that the waiver was valid, then the defendant may overcome it by presenting evidence from which it could reasonably be inferred that the waiver was not knowing, voluntary, and intentional. People v. Arguello, supra.

A waiver cannot be knowing and intelligent unless the record clearly establishes that the defendant understands: the nature of the charges; the statutory offenses included within them; the range of allowable punishments; possible defenses to the charges and circumstances in mitigation; all of the facts essential to a broad understanding of the whole matter; and the requirement of complying with the rules of procedure at trial. People v. Arguello, supra.

In this regard, the Colorado Trial Judge's Benchbook lists questions that a trial court should ask every defendant who seeks to proceed pro se, including whether: the defendant understands the right to counsel; the defendant understands that if he or she cannot afford an attorney, one will be appointed; the defendant understands the charges and possible penalties; the defendant has any legal training; the defendant is educated; the defendant is under the influence of any drug, medication, or alcohol that would affect his or her understanding; the defendant wishes to consult with the public defender before making a decision to waive counsel; the defendant understands the complexity of criminal law; the defendant understands the right to remain silent; the defendant requests advisory counsel; the defendant understands the risks involved in self-representation; the defendant understands his or her rights of confrontation and cross-examination; and the defendant understands that he or she has the right to compel witnesses to appear and testify. People v. Arguello, supra.

Whether a waiver of the right to counsel is knowing and intelligent presents a mixed question of law and fact that we review de novo. United States v. Cash, 47 F.3d 1083 (11th Cir.1995). On appeal, the reviewing court must not only look at the advisement, but also weigh the totality of the circumstances in ascertaining the validity of the waiver. People v. Arguello, supra.

A.

Initially, we consider whether the trial court adequately ascertained that defendant knowingly, intelligently, and voluntarily decided to represent himself. We conclude that it did not.

When defendant first indicated to the trial court that he wished to proceed pro se, the court inquired only whether defendant had any experience in criminal matters, to which defendant answered "no," and whether defendant thought himself competent to select jurors, to which he responded that he believed he was. However, a defendant's statement that he is aware of the right to counsel and desires to waive the right does not automatically end the court's responsibility. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).

Here, the trial court's questioning was interrupted by defendant's complaint of being in pain. However, defendant was neither disruptive nor discourteous. Cf. People v. Smith, 881 P.2d 385 (Colo.App.1994)(court considered fact that defendant's misbehavior precluded a complete advisement). Nevertheless, the court then made no further inquiry. Three days later, defendant entered his appearance pro se without discussion or advisement.

In our view, defendant's express waiver was invalid because the trial court's inquiries were not adequate to establish that defendant was aware of the dangers and disadvantages of self-representation. See People v. Smith, supra. However, a court's failure substantially to comply with this requirement does not alone preclude a valid implied waiver. People v. Arguello, supra.

B.

The People argue that defendant's overall course of conduct shows an unequivocal intent to give up his right to counsel and thus constitutes an implied waiver. We are not persuaded.

Where the adviseiment has been found deficient, courts rarely recognize an implied waiver. People v. Arguello, supra. To conclude that a defendant impliedly waived the right to counsel, the record as a whole, including the reasons proffered by the defendant for not wanting counsel, together with his or her background, experience, and conduct, must establish that the defendant knowingly and voluntarily undertook a course of conduct which shows an unequivocal intent to abandon legal representation. King v. People, supra.

Here, the record does not explain either why defendant sought to represent himself or on what basis the trial court allowed him to do so. Although defendant proceeded to trial pro se without expressing concern over lack of representation, the trial court neither urged him to reconsider, as in People v. Mossmann, 17 P.3d 165 (Colo. nor renewed its offer to appoint counsel, as in People v. Smith, supra.

The record does not show that defendant had any prior criminal trial experience. Contrary to the People's characterization of the proceedings, defendant made serious tactical mistakes, including failure to disclose witnesses timely, failure to request an instruction on the proper lesser included offense, and failure to attack an element of the assault charge, namely, his knowledge that the investigator was a law enforcement officer. Cf. People v. Smith, supra, 881 P.2d at 389 (in finding an implied waiver, trial court noted that "defendant had done a very commendable job in representing himself").

Thus, under the totality of the cireum-stances, we conclude that defendant did not impliedly waive his right to counsel.

Therefore, defendant's convictions must be reversed.

IL

Defendant further contends the evidence was insufficient to prove beyond a reasonable doubt that he resisted arrest. Because resolution of this issue could bar a retrial, we address it, and we conclude that the evidence was insufficient.

When sufficiency of the evidence is challenged on appeal, the appellate court must determine whether the evidence, viewed as a whole and in the light most favorable to the People, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. People v. Miralda, 981 P.2d 676 (Colo.App.1999).

The People do not contest that leg shackles bound defendant when he allegedly resisted arrest. Defendant argues that he was already in custody, and therefore the People could not establish that he attempted to prevent a police officer from effecting his arrest. We agree.

Section 18-8-103(1), C.R.S.2001, provides:

A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(a) Using or threatening to use physical force or violence against the peace officer or another; or
(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.

Section 18-8-2083(1)(f), C.R.S.2001, provides in pertinent part that a person commits second degree assault if "[wihile lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer ... engaged in the performance of his or her duties."

In People v. Armstrong, 720 P.2d 165 (Colo.1986), the supreme court explained that an arrest must precede the person being "in custody" for purposes of § Hence, when a defendant is charged with resisting arrest and second degree assault, both statutes could be violated only if the defendant's conduct began before the arrest and resumed after it.

Thus, a person using violence against a peace officer to avoid arrest commits the crime of resisting arrest up to the point of arrest. However, after the arrest has been effected, a person then in custody who uses violence against a peace officer commits second degree assault. According ly, "(tlhe two crimes are mutually exclusive, and whether the defendant's use of force precedes or follows the effectuation of the arrest dictates the nature of the offense." People v. Thornton, 929 P.2d 729, 733 (Colo.1996).

Nevertheless, relying on People v. Denison, 918 P.2d 1114 (Colo.1996), the People argue that here defendant was in custody for the unrelated criminal case, not because of his new misbehavior, and therefore the deputies were attempting to arrest him for a different crime. We do not agree.

People v. Denison, supra, addressed whether an inmate incarcerated for one offense, who is questioned about a separate offense allegedly committed while he was incarcerated, is "in custody" for purposes of being entitled to a Miranda advisement. We read Denison as deciding only that, although in custody, the inmate was not separately restricted by the questioning for Miranda purposes on the particular facts presented.

-An arrest occurs when, in view of all the circumstances, a reasonable person would believe that he or she is not free to leave. People v. Pancoast, 659 P.2d 1348 (Colo.1982). "Custody" means "the restraint of a person's freedom in any significant way." Section 16-1-104(9), C.R.98.2001. Thus, at the time of his outburst, defendant was already both in custody and under arrest.

Accordingly, we conclude that he could not be placed under arrest for the new crimes and, therefore, could not have resisted arrest. On remand, the trial court must dismiss this charge.

TIL.

Based on our decision to reverse and remand for a new trial, the remaining issues raised by defendant, including those concerning the order denying his Crim. P. 85(c) motion, are moot, and we decline to address them.

The judgment is reversed, and the case is remanded to the trial court for dismissal of the resisting arrest charge and a new trial on the second degree assault charge consistent with the views expressed in this opinion.

Judge METZGER and Judge CASEBOLT concur.


author: Judge ROTHENBERG.

text:
    The PEOPLE of the State of Colorado, In the Interest of A.D., a Child, Upon the Petition of the El Paso County Department of Human Services, Petitioner-Appellee, and Concerning W.B., III, Respondent-Appellant.
    No. 01CA0881.
    Colorado Court of Appeals, Div. IV.
    Sept. 12, 2002.

      Judith L. Hufford, Guardian Ad Litem.
    Michael A. Lucas, County Attorney, Laura C. Rhyne, Assistant County Attorney, Colorado Springs, Colorado, for Petitioner-Appel-lee.
    Davide C. Migliaccio, Colorado Springs, Colorado, for Respondent-Appellant.
   Opinion by

Judge ROTHENBERG.

W.B., III (father) appeals from an order terminating the parent-child legal relationship between him and his child, A.D., pursuant to § 19-8-604(1)(a), We affirm.

Father and mother were never married. At or near the time of the child's birth in October 1997, mother told father he was the child's biological parent, but the maternal grandmother told father he was not. Father did not pursue a relationship with the child.

On August 4, 1999, a petition in dependency or neglect was filed that named mother, her husband, and "unknown father" as respondents. Two weeks later, an amended petition was filed naming father as the child's biological parent.

After the amended petition was filed, father telephoned the county department of human services and spoke to the caseworker, stating that mother had told him he was the possible biological parent of the child. Father left a telephone message for the caseworker again in September 1999, stating he would call again the following day. However, the caseworker did not hear from him again until April 2000. During this time, the petition, summons, and other paperwork were sent to father at several addresses, including his mother's address.

Father appeared for the first time in the dependency or neglect proceeding on May 2, 2000. At that time, visitation was approved and was to be arranged between father and the maternal grandmother, with whom the child was placed. Father scheduled a tentative visit, but did not follow through.

In August 2000, a paternity test confirmed that father was the child's biological parent, and the child was adjudicated dependent or neglected. Thereafter, father did not make any further efforts to visit the child until shortly before the termination hearing. He did not pay child support and rarely contacted the caseworker for information about the child.

In October 2000, the county department of human services filed a motion to terminate the parent-child legal relationship on the basis of abandonment. At the March 2001 termination hearing, father did not seek custody of the child, but wanted his parental rights to remain intact so he could visit the child and perhaps assume custody of him at a later date. At the close of the evidence, the trial court granted the motion to terminate.

Father contends the trial court erred in finding he abandoned the child. He maintains that because he never had physical custody of the child, he could not surrender physical custody, nor could he resume physical custody as required by § 19-3-604(1)(a)(I), C.R.9.2001. We disagree.

Termination of the parent-child legal relationship on the basis of abandonment is permitted if the "parents have surrendered physical custody of the child for a period of six months or more and have not manifested during such period the firm intention to resume physical custody of the child or to make permanent legal arrangements for the care of the child." Section 19-8-604(1)(a)(I).

Abandonment of a child by his or her parents is primarily a question of intent and may be determined by the parents' actions as well as their words. Moreau v. Buchholz, 124 Colo. 302, 236 P.2d 540 (1951). In determining whether a child has been abandoned by his or her parents, the cireum-stances must be viewed in light of the child's best interests. People in Interest of G.D., 775 P.2d 90 (Colo.App.1989).

The credibility of the witnesses and the sufficiency of the evidence, its probative effect and weight, and the inferences and conclusions to be drawn therefrom, are within the trial court's discretion. Thus, a trial court's findings and conclusions will not be disturbed on review if the record supports them. People in Interest of C.A.K., 652 P.2d 603 (Colo.1982).

After hearing the evidence, the trial court here found that mother had advised father he was the child's biological parent during the early stages of the proceeding and that his paternity was established. However, because father never asserted his custodial rights, the trial court concluded he had surrendered physical custody and had failed to manifest a firm intention to resume physical custody or to make arrangements for the child's care. In reaching this conclusion, the trial court properly gave primary consideration to the child's condition and needs. See § 19-3-604(8)("In considering. the termination of the parent-child relationship, the court shall give primary consideration to the physical,, mental, and emotional conditions and needs of the child.").

The trial court's factual findings are supported by the record, and we perceive no error in its conclusion that father's failure to assert custodial rights constitutes a surrender of those rights. See In re Robert O., 80 N.Y.2d 254, 264, 590 N.Y.S.2d 37, 604 N.E.2d 99, 103-04 (1992)("The demand for prompt action by the father at the child's birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State's legitimate interest in the child's need for early permanence and stability."); In re Baby Boy K., 546 N.W.2d 86, 100 (S.D.1996).

Accordingly, we conclude the trial court did not err in determining that father abandoned the child. See Moreau v. Buchholz, supra; People in Interest of A.D., supra.

In so holding, we reject father's assertion that by participating in the proceeding, he manifested a firm intent to resume physical custody of the child and attempted to make permanent arrangements for the child's care. Proceedings pursuant to § 19-3-604(1)(a)(I) are initiated by someone other than the parent, and participation in the involuntary proceeding does not in and of itself obviate termination on the basis of abandonment.

Father's desire to visit the child and perhaps someday assume custody is not a manifestation of a firm intention to resume eusto-dy. Nor can he be said to have made legal arrangements for the child's care simply by agreeing to placement with the maternal grandmother through the dependency or neglect proceeding. A parent who wishes to maintain the benefits of a parental relationship must bear the burden of parental responsibilities. See Stjernholm v. Mazaheri, 180 Colo. 352, 506 P.2d 155 (1978); People in Interest of G.D., supra.

Judgment affirmed.

Judge NEY and Judge VOGT, concur.


text:
    In re the Interest of L.F., Ronald R. Thomasson, Appellant, and Patricia J. Fiedler, Appellee.
    No. 01CA2350.
    Colorado Court of Appeals, Div. IV.
    Sept. 12, 2002.
    C. Bert Dempsey, Boulder, Colorado, for Appellant.
    No Appearance for Appellee.
   Opinion by

Judge ROTHENBERG.

In this child support proceeding between Ronald R. Thomasson (father) and Patricia J. Fielder (mother), the sole issue is whether the district court erred in ruling that the adjustment for transportation expenses in § 14-10-115(18)(a)(IT), C.R.S.2001, is limited as a matter of law to those expenses incurred in long distance or interstate travel and does not apply to automobile expenses incurred in transporting a child between the homes of the parents. Because we conclude the trial court erred in so ruling, we vacate the district court order adopting the magistrate's denial of father's request to divide the automobile expenses between the parties in proportion to their income, and we remand for reconsideration of his request.

L.

This action originated in an Oregon court as a paternity action after the parties' child was born on September 26, 1995. After father's paternity and child support obligations were established there, mother relocated to Colorado and filed a motion here to modify child support.

At the hearing on mother's motion, father testified. that he had moved from Oregon to Colorado to be closer to his child, who lived in Littleton with her mother. Father testified that he was unable to find work in Denver, but he had a job in Fort Collins and resided in Longmont to balance the driving distance between his job and the child's residence. Father calculated that the total distance driven by the parties every month to comply with the parenting time order was 969 miles and that he was ordered to drive 833 of those miles. He therefore requested that his driving expenses, calculated at a certain rate per mile, be included in the child support calculation as an extraordinary adjustment.

The magistrate denied the request, concluding § 14-10-115(18)(a)(II) addressed only "the situation where a child was traveling long distances, not simply from the local home of one parent to the local home of the other parent."

On review, the district court adopted the magistrate's order. The court focused on the 1998 amendment to the statute, Colo. Sess. Laws 1998, ch. 215, § 14-10-115(13)(a)(ID) at 769, which allows inclusion of an accompanying parent's expenses if the child is less than twelve years old. The court also considered preamendment cases holding that travel expenses could not be awarded to a parent for expenses incurred in traveling to the other parent's home, such as In re Marriage of Elmer, 936 P.2d 617 (Colo.App.1997)(under pre-1998 statute, court lacked authority to order one parent to pay any of the other parent's interstate travel expenses) and In re Marriage of Hoffman, 878 P.2d 103 (Colo.App.1994).

In addition, the district court reasoned that an award to father of his driving expenses would compensate him for his driving time.

IL

Father contends that the adjustment for transportation expenses addressed in § 14-10-115(18)(a)(II) is not limited to expenses of long distance or interstate travel, and that the trial court erred in ruling otherwise. We agree.

Section 14-10-115(18)(a)(II) provides that:

By agreement of the parties or by order of court, the following reasonable and necessary expenses incurred on behalf of the child shall be divided between the parents in proportion to their adjusted gross income ...
Any expenses for transportation of the child, or the child and an accompanying parent if the child is less than twelve years of age, between the homes of the parents. (emphasis added)

[2-4] Our task in interpreting a statute is to determine and give effect to the intent of the General Assembly. Pediatric Neurosurgery, P.C. v. Russell, 44 P.3d 1063 (Colo.2002); People in Interest of J.A.C., 25 P.3d 1269 (Colo.App.2001). Words and phrases should be given their plain and ordinary meaning unless the result is absurd. If the statutory language is clear and unambiguous, the statute must be applied as written, and the court need not resort to other rules of statutory construction. Humane Soc'y v. Indus. Claim Appeals Office, 26 P.3d 546 (Colo.App.2001).

The statute here plainly provides that "any" reasonable and necessary expenses for transportation of the child between the homes of the parents shall be apportioned. "Any" is a term of expansion without restriction or limitation. See Obert v. Colorado Department of Social Services, 766 P.2d 1186, 1191 (Colo.1989); Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154 (1998).

We perceive no ambiguity in this language that would require a resort to legislative history, and in any event, there is no relevant legislative history that would provide any guidance to us regarding the 1998 amendment. We also observe that the General Assembly has provided specific limitations for other extraordinary expenses of the child, but apparently chose not to do so with regard to extraordinary travel expenses. See § 14-10-115(18.5)(b), C.R.8.2001 (limiting extraordinary medical expenses to a specific dollar amount and listing examples of the various types of treatment included); Colo. Springs Disposal v. Indus. Claim Appeals Office, - P.3d -, 2002 WL 464924 (Colo. App. No. 01CA0464, Mar. 28, 2002).

Because the provisions of § 14-10-115(13)(a)(II) are mandatory, In re Marriage of Long, 921 P.2d 67 (Colo.App.1996), and the statute does not limit transportation expenses only to those incurred for long distance or interstate travel, we conclude it was error to deny father's request based solely on the fact that both parents resided in Colorado. In so holding, we reject mother's contention that our interpretation will encourage litigation of trivial transportation expenses. Any award for transportation expenses is subject to the requirement that the expenses be reasonable and necessary.

We also note that father here requests only a reasonable reimbursement for the expense of driving and seeks no compensation for time spent. Nor does he seek reimbursement for the increased expenses of travelling to and from work occasioned by his election to live nearer to mother and the child and further from work.

The district court's order is vacated, and the case is remanded to the district court to reconsider father's request for travel expenses.

Judge NEY and Judge VOGT concur.


author: CARL B. JONES, J. KENNETH L. BUETTNER, Judge:

text:
    2002 OK CIV APP 96
    George J. CLARK, Jr., Plaintiff/Appellant, v. Douglas G. CLARK, Merrill Lynch Pierce Fenner & Smith, Incorporated, a Delaware corporation, Jerry S. Sellars, and Daniel B. Jay, Defendants/Appellees.
    No. 95,797.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Feb. 25, 2002.
    Rehearing Denied June 7, 2002.
    Certiorari Denied Oct. 1, 2002.

      Gregg R. Renegar, Joan A. Renegar, Oklahoma City, for Plaintiff/Appellant.
    Bruce W. Day, Rodney J. Heggy, Bill Powell Guest, Oklahoma City, for Defendants/Ap-pellees, Merrill Lynch Pierce Fenner & Smith, Inc., Charles Brown, Jerry S. Sellars and Daniel B. Jay.
   OPINION

CARL B. JONES, J.

¶ 1 In 1987, Plaintiffs father, George J. Clark (“Settlor”), executed a trust wherein he served as trustee and beneficiary until his death. Plaintiff asserts that the Trust instrument provided for a life estate for Settlor and upon his death, a life estate for Settlor’s wife, Lois Clark. The instrument originally provided for payments of $350.00 per month to Lois Clark during her lifetime. A subsequent amendment increased that amount to $550.00 per month. The Trust instrument apparently did not' authorize any other payments from the Trust corpus. Plaintiff was named the remainder beneficiary of the Trust and the successor trustee upon the death of Settlor.

¶ 2 Settlor died on November 4, 1992, and Plaintiff was appointed successor trustee. Plaintiff resigned as successor trustee on December 17, 1992, and his son, Douglas G. Clark (“Trustee”), accepted the position of successor trustee the same day.. In about April of 1993, Trustee transferred all the assets of the Trust from its original location at a Florida investment brokerage to the office of Merrill Lynch Pierce Fenner & Smith in Lawton, Oklahoma. At that time, the Trust was worth approximately $332,784.00 and was generating an annual income of about $25,782.00. Jerry S. Sellars and Daniel B. Jay served at various times as Merrill Lynch’s financial consultants for the Trust account. Charles Brown was the branch manager of Merrill Lynch’s Lawton office and the supervisor of Sellars and Jay. Hereafter, Merrill Lynch, Sellars, Jay and Brown are collectively referred to as “Merrill Lynch.”

¶ 3 The Trust account was set up by Merrill Lynch as both a cash management and a margin account. The client agreement (“Agreement”) signed by Trustee contained an arbitration clause. Plaintiff did not know that the Trust account had been established at Merrill Lynch, nor did he know about the Agreement or its arbitration clause. Soon after the account was established, Trustee began dissipating large amounts of money from the Trust. From May through December of 1993, Trustee withdrew nearly $120,000.00 from the Trust account. He made large withdrawals from ATM machines through the use of a debit card issued to him by Merrill Lynch, as well as through the use of a Visa card and checks issued for the Trust account. Lois Clark died in late December of 1996. Plaintiff thereafter began to inquire of Trustee as to the status of the Trust account, but he was never given a satisfactory response. In the summer of 1997, Plaintiff discovered that the account had a balance of approximately $43.00.

¶4 On February 23, 1999, Plaintiff filed the instant action in the District Court of Comanche County. The petition alleged negligence and breach of fiduciary duty on the part of both Trustee and Merrill Lynch. Merrill Lynch moved to stay the proceedings and to compel arbitration pursuant to the Agreement, which was granted by the trial court. Following a hearing before an arbitration panel of the National Association of Securities Dealers, the panel denied Plaintiffs claims as against Merrill Lynch and its defendant employees. On October 12, 2000, Plaintiff filed a petition to vacate the arbitration decision in the United States District Court for the Western District of Oklahoma. That motion is still pending. On November 2, 2000, Merrill Lynch moved the state trial court to lift the stay and confirm by judgment the award of the arbitration panel. On November 15, 2000, Plaintiff filed a purported “Dismissal” of his original petition and Merrill Lynch thereafter moved to strike Plaintiffs filing. On January 4, 2001, the trial court lifted the stay, confirmed by judgment the arbitration award, and ordered Plaintiffs dismissal pleading stricken. Plaintiff appeals. '

¶ 5 Although Plaintiff advances several arguments on appeal, we deem his first assignment of error dispositive. We agree that the trial court erroneously ordered this case sent to arbitration because Plaintiff was not bound by the terms of the Agreement. Before addressing this issue, however, we must fírát dispose of Plaintiffs claim that the trial court wrongfully rejected his attempt to dismiss this action. Title 12 O.S.1991 § 684 states in relevant part:

A plaintiff may, on the payment of costs and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of the costs and without any order of court, dismiss his action after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal shall not prejudice the right of the intervenor or defendant to proceed with the action.

The question here is whether § 684 authorized Plaintiffs eleventh-hour dismissal attempt. We find that it did not.

¶ 6 This court addressed a similar factual situation in Fleming Companies, Inc. v. Tru Discount Foods, 1999 OK CIV APP 18, 977 P.2d 367. There, the plaintiff sued the defendants and the defendants counterclaimed. On the plaintiffs motion and following a hearing, the trial court ordered the parties to proceed to arbitration. Nearly two years later, and after considerable discovery and two weeks of arbitration proceedings, the defendants sought to dismiss their claims. This court held:

Title 12 O.S.1991 § 684, does allow Defendants to dismiss their claims at any time before trial is begun. However, the record herein shows: (1) There had been a hearing with evidence presented on the issue of whether the arbitration agreement was enforceable; (2) The trial court had found that the arbitration agreement was enforceable and had ordered arbitration; (3) The parties had participated in the ordered arbitration proceedings; and, (4) Hearings actually had been held in those proceedings. Under such circumstances, we conclude that Defendants could not avail themselves of the provisions of section 684 in a clear attempt to avoid continued arbitration.

Id. at ¶ 15, 977 P.2d at 370.

¶ 7 We deem Fleming’s rationale sound and its holding persuasive. Like Fleming, in the present case (1) a hearing was conducted regarding whether Plaintiffs claims were subject to arbitration, (2) the trial court ordered the parties to arbitration, (3) the parties participated in the ordered arbitration proceedings, and (4) hearings were actually conducted in those proceedings. Unlike Fleming, the instant case also includes the following additional factors: (5) the arbitration proceedings were concluded, (6) the arbitration panel issued a decision against Plaintiff, and (7) the defendants filed a motion in district court to confirm by judgment the award of the arbitration panel. All of these events transpired prior to the time Plaintiff attempted to dismiss his action.

¶ 8 Under the circumstances of this case, we conclude that Plaintiff could not avail himself of the provisions of § 684 in a clear attempt to avoid the adverse award of the arbitration panel. Independent of this fact, we also find that Merrill Lynch’s motion to confirm by judgment the award of the arbitration panel was tantamount to a prayer for affirmative relief against Plaintiff. A dismissal by Plaintiff at that juncture of the proceedings would plainly have run afoul of § 684 by prejudicing the rights of Merrill Lynch to proceed with the action. Accordingly, the trial court correctly rejected Plaintiffs attempted dismissal.

¶ 9 Turning now to the merits of this case, the Agreement provided in relevant part:

The undersigned agrees that all controversies which may arise between us, including but not limited to those involving any transaction or the construction, performance, or breach of this or any other agreement between us, whether entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration.

The Agreement also stated, “The undersigned represents that no one except the undersigned has an interest in the account ....” Notwithstanding this later provision, Trustee signed the instrument “Douglas G. Clark Trustee FBO George J. Clark.” As previously set forth, Plaintiff did not know that the trust account had been moved to Merrill Lynch or that Trustee had entered into the Agreement.

¶ 10 Initially, we reject Merrill Lynch’s argument that Plaintiff should be bound by the terms of the Agreement because his action is based upon or arises from it. Plaintiff contends — and his Petition supports — that he did not know of the existence of the Agreement at the time he filed this action. Plaintiffs cause of action for negligence alleges that Merrill Lynch owed him a duty of reasonable care to protect his interests in the Trust from unreasonable risk of harm and to protect the Trust corpus. His cause of action for breach of fiduciary duty alleges that Merrill Lynch acted willfully, wantonly, recklessly and maliciously in violation of their duties and responsibilities toward Plaintiff as beneficiary of the Trust. In support of his claims, Plaintiff cited that Merrill Lynch set the account up as a margin account despite the fact that the Trust was for the benefit of an aging woman and Plaintiff as residual beneficiary, and that Trustee was issued both an ATM and a Visa card, and he was given check writing privileges notwithstanding that the Trust authorized only one relatively small, preestablished payout per month. The Petition also noted the rapid dissipation of funds from the account and that many of the payments were obviously personal in nature to Trustee. The Petition made no reference to the Agreement or any of its terms.

¶ 11 Merrill .Lynch contends that it owed no duty to Plaintiff outside of that arising from the Agreement, specifically asserting that in Oklahoma a fiduciary duty arises only from contract. We disagree. “Under Oklahoma law, a fiduciary relationship exists whenever trust is placed by one person in the ‘integrity and fidelity’ of another.” FDIC v. UMIC, Inc., 136 F.3d 1375 (10th Cir.1998), quoting In re Estate of Beal, 1989 OK 23, ¶ 15, 769 P.2d 150, 154. A fiduciary relationship “is not confined to any specific association of parties” and “[n]o precise language can define the limits of the relation.” Beal at ¶ 15, 769 P.2d at 155, quoting In re Null’s Estate, 302 Pa. 64, 153 A. 137 (1930). In some cases, the relationship “is a conclusion of law; in others ... it is a question of fact to be established by the evidence.” Id.

The term “fiduciary relationship” is a very broad term and has been applied in circumstances where influence has been acquired and abused and where confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The question is whether a relation in fact exists. Sellers v. Sellers, 1967 OK 34, ¶¶21, 22, 428 P.2d 230, 236.

Roberson v. PaineWebber, Inc., 1999 OK CIV APP 17, ¶10, 998 P.2d 193, 198. “It is settled law that courts of equity will not set any bounds to the facts and circumstances out of which a fiduciary relationship may spring.” Lowrance v. Patton, 1985 OK 95, ¶ 17, 710 P.2d 108, 111. We conclude that the claims and allegations contained in Plaintiffs Petition are independent of the Agreement.

¶ 12 The Uniform Arbitration Act, 15 O.S.1991 § 801 et seq., confers upon courts the jurisdiction to enforce written agreements to arbitrate controversies. “The fundamental purpose of arbitration is to preclude court intervention into the merits of disputes when arbitration has been provided for contractually.” Voss v. City of Okla. City, 1980 OK 148, ¶ 5, 618 P.2d 925, 927. However, the basic prerequisite to the commencement of an arbitration proceeding is “[a]n agreement for the submission of an issue to arbitrators.” Id. at ¶ 5, 618 P.2d at 928. There is no dispute here that under extant contract law Trustee was bound by the terms of the arbitration agreement. The same cannot be said for Plaintiff. In order to have a valid contract there must be mutual consent, or a meeting of the minds, of the parties. Beck v. Reynolds, 1995 OK 83, ¶ 11, 903 P.2d 317, 319; 15 O.S.1991 §§ 2, 66. Plaintiff clearly did not agree to be bound by the arbitration agreement because he was neither a party thereto nor knew of its existence. It further cannot be said that Plaintiff waived his constitutional right to access to the courts because he did not voluntarily or intentionally relinquish said right. See Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142, ¶ 6, 602 P.2d 203, 206-7 (“waiver” defined as voluntary or intentional relinquishment of a known right).

¶ 13 The issue here is whether Plaintiff, as residual beneficiary of the Trust, is bound by the Agreement’s arbitration clause by virtue of Trustee having signed the Agreement. We find that he is not:

“A trustee is not an agent. An agent represents and acts for his principal .... A trustee may be defined generally as a person in whom some estate interest or power in or affecting property is vested for the benefit of another. When an agent contracts in the name of his principal, the principal contracts, and is bound, but the agent is not. When a trustee contracts as such, unless he is bound, no one is bound, for he has no principal. The trust estate cannot promise; the contract is therefore the personal undertaking of the trustee.”

Riedell v. Stuart, 1931 OK 475, ¶ 22, 2 P.2d 929, 932, quoting Taylor v. Davis, 110 U.S. 330, 334-5, 4 S.Ct. 147, 150, 28 L.Ed. 163. Accord Mertz v. Owen, 1942 OK 165,¶ 29, 126 P.2d 720, 727, also quoting Taylor, supra.

¶ 14 In the present case, Trustee is neither an agent for the Trust nor for the Trust’s residual beneficiary, Plaintiff. The Agreement entered into between Merrill Lynch and Trustee is “the personal undertaking of’ Trustee. The Agreement binds Trustee to arbitrate any controversies arising between himself and Merrill Lynch. It does not bind Plaintiff to arbitrate this case, which arose independent of the Agreement. The trial court erred in sending this matter to arbitration.

¶ 15 REVERSED AND REMANDED.

ADAMS, J., concurs.

KENNETH L. BUETTNER, Judge:

(specially concurring).

¶ 16 At issue in this case is whether a trust beneficiary, who was not a signatory to the trust account set up with Merrill Lynch by the trustee, may be compelled to arbitrate based on an arbitration provision included in the trust account agreement. Appellant, the beneficiary of the trust which was purportedly dissipated by the trustee without Appellant’s knowledge, filed his petition against Merrill Lynch alleging that Merrill Lynch breached its fiduciary duty to Appellant and also alleging that Merrill Lynch negligently failed to protect the trust corpus.

¶ 17 The majority holds that Appellant may not be bound by the arbitration clause in the account agreement because Appellant did not sign the agreement, was unaware of the agreement, and because a trustee is not an agent of the trust beneficiaries. In addition, the majority holds that the Petition alleges violations of duty independent of the account agreement. Under these circumstances, I agree that the reference to arbitration was error. However, I would not go as far as the majority opinion goes by implying that under no circumstances may a non-signatory be bound contractually to arbitration. It has been held that a party may be bound by an arbitration agreement even when that party has not signed the arbitration agreement. Merrill Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 879 (Tex.App.1992). Eddings held that trust beneficiaries may be bound by an arbitration clause included in a trust account agreement entered by the trustee and an investment firm even when the beneficiaries have not signed the account agreement. Id. The key is whether the account agreement, containing the arbitration clause, is the underlying basis for all of the beneficiaries’ claims; if so, the non-signatory beneficiary will be bound by the arbitration agreement. Id. In other words, if the beneficiaries would have no claim against the investment firm in the absence of the agreement containing the arbitration clause, then the beneficiaries are bound by the arbitration clause in the agreement giving rise to their claims, despite the fact they did not sign the agreement themselves. Id. I find Eddings persuasive.

¶ 18 I concur with the majority’s decision to the extent that Appellant is able to articulate some claim against Merrill Lynch not arising out of the account agreement which contained the arbitration clause. At this point, we are dealing solely with allegations in the Petition, and not addressing the validity of those claims either legally or factually. If Appellant’s claims all arise out of the account agreement signed by the trustee and Merrill Lynch, then based on the holding in Eddings, the trial court correctly ruled that Appellant was bound by the arbitration agreement.

      . Black’s Law Dictionary 871 (5th ed.1979) defines a "margin account" as:
      Securities industry's method of extending credit to customers. Under such practice customer purchases specified amount of stock from securities firm by advancing only portion of purchase price, with brokerage firm extending credit or making loan for balance due, and firm maintains such stock as collateral for loan and charges interest on balance of purchase price.

      . A default judgment was subsequently entered in favor of Plaintiff against Trustee. That judgment is not at issue in this proceeding.


author: GOODMAN, Presiding J. RAPP, J.,

text:
    2002 OK CIV APP 103
    Clesta DARNABY and Jeff Darnaby, Plaintiffs/Appellants, v. Martin J. DAVIS, D.O., Defendant/Appellee.
    No. 94,523.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 19, 2002.
    Rehearing Denied June 4, 2002.
    Certiorari Denied Oct. 15, 2002.

      Keith A. Ward, Stephanie Dinsmore Phipps, Richardson, Stoops, Richardson & Ward, Tulsa, for Plaintiffs/Appellants.
    Bruce A. McKenna, Holden, Glendening & McKenna, Tulsa, for DefendantyAppellee.
   GOODMAN, Presiding J.

¶ 1 This is Clesta (Patient) and Jeff Dar-naby’s appeal from the trial court’s March 13, 2000, order entering judgment on a jury verdict rendered in favor of Martin J. Davis, D.O. (Doctor), on Patient’s claim of negligence and battery arising out of sexual encounters which took place in Doctor’s office. Patient contends the trial court erred when it failed to grant judgment to her as a matter of law on the issue of whether Doctor was treating Patient after Doctor admitted the existence of a doctor-patient relationship at the time of the encounters. Patient also contends the trial court improperly instructed the jury. Based upon our review of the appellate record and applicable law, we reverse and remand the matter for a new trial.

FACTS

¶ 2 Doctor, a general practitioner, began medically treating Patient in 1990 for complaints of anxiety and chest pains and, later, for monopolar depression. He continued as her physician until 1996. Doctor initially prescribed medication for Patient to treat her conditions. When Doctor determined Patient’s psychological problems were more complex, he referred her to a psychiatrist in 1992, who diagnosed Patient as having Post-Traumatic Stress Disorder and Multiple Personality Disorder. Patient stopped seeing the psychiatrist after 4 months. Doctor admitted he continued to treat her for her emotional states, but denied he was treating her for psychological conditions.

¶ 3 In August 1995, Doctor, acting as Patient’s medical “gatekeeper” i.e., one responsible for coordinating all her medical treatment rendered by himself and other medical professionals, admitted to having two sexual contacts with Patient in his office. Prior to that time, Doctor and Patient had engaged in kissing in Doctor’s office. Also, by May of 1995, Patient had told Doctor she had formed a strong personal attachment to him.

¶ 4 In 1996, the Oklahoma State Board of Osteopathic Examiners (OSBOE) investigated Doctor’s conduct and temporarily suspended him from the. practice of medicine. An order from the OSBOE dated October 23, 1996, recited that Doctor had “established a physician-patient relationship with Patient, which continued until 1996” and found that Doctor “engaged in sexual activity within this physician-patient relationship.”

¶ 5 Patient sued Doctor on June 18,1997, for negligence and sexual battery. Doctor defended his actions by stating that his relationship with Patient had become personal, and was not treatment, though he admitted a physician-patient relationship existed at the time in order to act as her gatekeeper. The trial court instructed the jury that it could find Doctor was in a physician-patient relationship with Patient, yet not be “treating” her. Patient claims this was error.

ISSUES

¶ 6 Patient’s brief in chief preserves two issues on appeal: Whether the trial court erred when it refused to grant judgment to her as a matter of law on the issue of whether Doctor was treating Patient once Doctor admitted the existence of a physician-patient relationship, and whether the trial court thereafter properly instructed the jury on that issue.

ANALYSIS

Is Sex Between Parties to a Doctor-Patient ■ Relationship Ipso Facto Actionable?

¶ 7 Patient’s appellate brief states “there is no distinction between ‘treatment’ and a ‘physician-patient relationship’ and the use of the term ‘treatment’ merely confused the jury” which statement provides the framework of our analysis.

¶ 8 Thus, we must first determine whether or not sexual contact between a doctor and his or her patient is actionable in this state. If such contact is always actionable, we would have to conclude that the distinction between the existence of a doctor-patient relationship and the treatment of a patient is artificial and meaningless, and would automatically grant Patient judgment. In other words, if a sexual act between the two parties in a doctor-patient relationship, standing alone, creates a cause of action, it follows that it makes no difference whether the act of sex was part of the medical regimen.

¶ 9 On the other hand, if the existence of a doctor-patient relationship is beyond dispute — as in this case — yet sexual contact between a doctor and a patient is not actionable per se, then we would have to conclude that there is a distinction between the doctor-patient relationship and treatment, and that the trial court correctly instructed the jury to consider such distinction.

¶ 10 Initially, we note that we are not addressing the professional ethics of sexual contact between a medical professional and a patient, which is universally condemned. Nor do we address sexual contact of a criminal nature. Our inquiry is limited to the facts of this case — sexual contact between a physician and his adult, female patient.

¶ 11 Further, we do not address the medico-legal issues rising from the doctor-patient relationship between a psychiatrist, psychologist, or other mental health counseling professional, and a patient. These cases involve the phenomenon of transference. Many courts recognize a cause of action against a mental health care provider who engages in sexual acts with a patient because such conduct is evidence of the professional’s mishandling of the transference phenomenon, which is a recognized risk in this field. For a discussion of this issue, see Simmons v. United, States, 805 F.2d 1363 (9th Cir.1986). As discussed later, the transference phenomenon is not usually recognized as occurring in a non-psychological treatment situation.

¶ 12 There are no Oklahoma cases that directly address the issue of whether or not sexual contact between a doctor and a patient is actionable. However, other jurisdictions have addressed the issue.

¶ 13 These cases fall into three broad categories. The first and largest category is best described as those cases which hold that, absent proof that a physician used sex as a treatment modality, the mere fact of sexual contact between the physician and the patient is not actionable. The second category involves physicians who used sex as a treatment modality. These eases hold that the physician can be held liable for substandard professional services. The last category of cases are those in which a non-psychiatrist/psychologist physician became so involved with a patient that the physician effectively took on the role of a psychiatrist, and mishandled the resulting transference phenomenon.

¶ 14 We will now address each category.

Category I — Sex Within Doctor-Patient Relationship Without Treatment Not Actionable

¶ 15 The court in Simmons v. United States, 805 F.2d 1363 (9th Cir.1986), after surveying various other jurisdictions, stated: “We note that courts do not routinely impose liability upon physicians in general for sexual contact with patients.” Id. at 1366. See, e.g., Smith v. St. Paul Fire and Marine Ins. Co., 353 N.W.2d 130, 132 (Minn.1984).

¶ 16 In Odegard v. Finne, 500 N.W.2d 140, 143 (Minn.Ct.App.1993), the court, surveying other jurisdictions, noted:

The general rule is that a medical malpractice claim cannot be based upon a sexual relationship between a physician and a patient being treated by the physician for a physical condition. E.g., Simmons, 805 F.2d at 1366 (“We note that courts do not routinely impose liability upon physicians in general for sexual contact with patients,” citing Smith, 353 N.W.2d at 130.); Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454, 457 (1987) (“In examining out-of-state authorities, we find that allegations of a physician’s sexual misconduct have provided a basis for a malpractice action only where the patient has alleged that the physician induced sexual relations as part of the therapy.”), pet. for rev. denied (Cal. Nov. 12, 1987); Collins, 604 N.E.2d at 1196 (“The general rule is that a physician’s sexual relationship with a patient does not constitute rendition of health care services, and is not actionable as malpractice,” citing Smith, 353 N.W.2d at 130.).

¶ 17 In Lindheimer v. St. Paul Fire and Marine Insurance Co., 643 So.2d 636 (Fla.Dist.Ct.App.1994), the court stated that the fact the unwanted sexual contact took place in the medical professional’s office does not automatically “transmute the act into a professional service.” Id. at 638. Rather, there must be some causal connection between the act itself and the doctor-patient relationship.

¶ 18 In Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607, 615 (2000), the court held:

We conclude, based on the foregoing-rationale, that there must be a causal relationship between the alleged harm and the complained-of professional act or service. When there is a claim of medical malpractice based on unwanted sexual contact, the determination of liability should focus not solely on the locale of the alleged harm or the professional status of the actor, but, rather, on the context of the alleged medical service involved in the action. In other words, it is the physician’s deviation from the recognized medical standard of care during the course of treatment that is the essence of a claim for medical malpractice, and there must exist a causal relationship between the alleged harm and the complained-of deviation from that standard of care in order for liability to attach.

¶ 19 The court in Collins v. Covenant Mutual Insurance Co., 604 N.E.2d 1190, 1195-96 (Ind.Ct.App.1992), stated:

With respect to a typical physician’s sexual conduct, different reasoning has been adopted. The general rule is that a physician’s sexual relationship with a patient does not constitute rendition of health care services, and is not actionable as medical malpractice. See Standlee v. St. Paul Fire & Marine Ins. Co. (Ct.App.1984), 107 Idaho 899, 693 P.2d 1101; Hirst v. St. Paul Fire & Marine Ins. Co. (Ct.App.1984), 106 Idaho 792, 683 P.2d 440; St. Paul Fire & Marine Ins. Co. v. Quintana (1988), 165 Mich.App. 719, 419 N.W.2d 60; Smith v. St. Paul Fire & Marine Ins. Co. (1984), Minn., 353 N.W.2d 130; South Carolina Medical Malpractice Liab. Ins. Joint Underwriting Ass’n v. Ferry (1987), 291 S.C. 460, 354 S.E.2d 378; Washington Ins. Guar. Ass’n v. Hicks (1987), 49 Wash.App. 623, 744 P.2d 625.

¶ 20 We therefore conclude, based upon the authorities set out above, among others, that there must be some causal connection between the sexual activity within a doctor-patient relationship and the alleged damages resulting from the substandard professional medical care. That causal connection, in our opinion, is treatment.

¶21 We conclude that sexual activity between a doctor and a patient, notwithstanding the existence of a doctor-patient relationship, without more, does not give rise to a cause of action. In order to impose liability, a patient must prove that the sexual activity was represented by the doctor to be part of the treatment regimen, and the combination of a physician using sex as a treatment modality in the doctor-patient relationship resulted in damage to the patient.

Category II — Liability Imposed Because Sex Presented as Treatment

¶22 The second category of cases are those that have found that the physician represented to the patient that some sort of sexual contact was part of the treatment regimen. In those instances, the physician can be liable for such acts.

¶ 23 In Hoopes v. Hammargren, 102 Nev. 425, 725 P.2d 238 (1986), the court held that if a patient could prove a physician used sex to breach a fiduciary duty to that patient, a cause of action could be pursued. The Nevada court further held that a physician-patient relationship was fiduciary in nature, and taking sexual advantage of that relationship could constitute professional malpractice. The court emphasized that the patient must still prove the elements of such a violation of a fiduciary relationship, ie., that the physician was in an authoritative position and, as a result of some illness, emotional instability, or other vulnerability, the physician exploited a condition of the patient. Thus, consensual sex, the prior termination of the physician-patient relationship, or the lack of a causal connection between the sex act and the claimed damages, would be fatal to the patient’s cause of action.

¶ 24 Atienza v. Taub, 194 Cal.App.3d 388, 239 Cal.Rptr. 454, 455, 457, surveyed the existing body of law in this area and concluded:

This appeal presents a question of first impression: can allegations that a physician initiated a sexual relationship with his patient during the time he was treating her for a physical disorder state a cause of action for professional negligence medical malpractice? In our view, the answer turns on whether the sexual relationship was initiated by the physician under the guise of treatment of the patient.
In examining out-of-state authorities, we find that allegations of a physician’s sexual misconduct have provided a basis for a malpractice action only where the patient has alleged that the physician induced sexual relations as part of the therapy. (Zipkin v. Freeman (Mo.1968) 436 S.W.2d 753, 755 [psychiatrist “negligently advised plaintiff she needed further treatment by way of personal and social contacts with him even though such a relationship went beyond accepted psychiatric standards.”]; Roy v. Hartogs (1976) 85 Misc.2d 891, 381 N.Y.S.2d 587, 588 [plaintiff “induced to have sexual intercourse with the defendant as part of her prescribed [psychiatric] therapy.”]; Cotton v. Kambly (1980) 101 Mich.App. 537, 300 N.W.2d 627, 628 [“Plaintiff alleges that defendant induced her to engage in sexual relations with him as part of her prescribed therapy.”].) Under these circumstances, the courts “see no reason for distinguishing between this type of malpractice and others, such as improper administration of a drug or a defective operation. In each situation, the essence of the claim is the doctor’s departure from proper standards of medical practice.” (Cotton v. Kambly, supra, 300 N.W.2d at pp. 628-629.)
The relevant authorities therefore agree that a physician who induces a patient to enter into sexual relations is liable for professional negligence only if the physician engaged in the sexual conduct on the pretext that it was a necessary part of the treatment for which the patient has sought out the physician.

Category Three — Transference Induced and Mishandled by Non-Psychologist Physician

¶ 25 The final category of cases borrows from the body of law dealing with psychological treatment and the transference phenomenon. As discussed briefly above, a psychologist, psychiatrist, or other professional mental health care provider is often the target of a patient’s transference. Failure to properly handle that recognized mental health occurrence is actionable in those cases, because failure to employ techniques of counter transference falls below the accepted standard of care. Although transference is generally not recognized as a medical issue, there are reported cases in which a medical physician who was not a psychiatrist or psychologist, nevertheless provided such ad hoc counseling and emotional support as to have effectively taken on the role of a mental heath care professional, and failed to properly handle the resulting transference phenomenon.

¶ 26 The court in McCracken v. Walls-Kaufman, 717 A.2d 346, 352-53 (D.C.1998), held:

We hold that if a medical professional not practicing in the field of mental health enters into a relationship of trust and confidence with a patient and offers counseling on personal matters to that patient, thus taking on a role similar to that of a psychiatrist or psychologist, that professional should be bound by the same standards as would bind a psychiatrist or psychologist in a similar situation. See Dillon, supra, 609 N.E.2d at 428 (physician who acted as patient’s therapist, even though “not a practicing psychiatrist,” was appropriately held to standard of therapist); Shamloo v. Lifespring, Inc., 713 F.Supp. 14, 17 (D.D.C.1989) (“[District of Columbia] case law does not hold that an unlicensed purveyor of ‘professional’ psychological services should be afforded greater protection from claims of negligence or malpractice than a licensed one.”); cf. Correll v. Goodfellow, 255 Iowa 1237, 125 N.W.2d 745, 749 (1964) (chiropractor held to standard of care of medical doctor when he left realm of standard chiropractic techniques by administering ultra-sonic treatments to a patient’s foot).
Therefore, as a medical professional, Dr. Walls-Kaufman can be found liable in tort for medical malpractice if it is found that he engaged in sexual acts with his patient, Mrs. McCracken, and if the McCrackens have established the following: that in the course of Dr. Walls-Kaufman’s chiropractic treatment of Mrs. McCracken, a relationship similar to a psychologist-patient relationship developed between the two; that it was a breach of the applicable standard of care for Dr. Walls-Kaufman to engage in sexual acts with Mrs. McCracken during the course of or attendant to that relationship; and that the breach of the standard of care by Dr. Walls-Kaufman proximately caused Mrs. McCracken’s claimed injuries. (Footnotes omitted.) Because in actions for medical malpractice issues such as the applicable standard of care and causation are not “within the ken of the average lay juror,” appellants will be required to establish them through expert testimony.

¶27 The court in Simmons v. United States (9th Cir.1986), 805 F.2d 1363, 1366, put it this way:

The crucial factor in the therapist-patient relationship which leads to the imposition of legal liability for conduct which arguably is no more exploitative of a patient than sexual involvement of a lawyer with a client, a priest or minister with a parishioner, or a gynecologist with a patient is that lawyers, ministers and gynecologists do not offer a course of treatment and counseling predicated upon handling the transference phenomenon. See A. Stone, M.D., Law, Psychiatry, and Morality 199 (1984).

¶ 28 As the Oklahoma Supreme Court in Bladen v. First Presbyterian Church, 1993 OK 105, ¶ 17, 857 P.2d 789, 794, recognizes:

Thus, claims for negligence against psychologists, psychiatrists, and therapists are based upon a mishandling of a specific tool [transference/counter-transference] used by those professionals in the course of treatment, and the departure from the professional norm is regarded as a type of malpractice for those professionals. This analysis suggests that professionals who do not use the transference mechanism are not subject to the same claim of counseling malpractice arising from the consensual sexual conduct of adults unless the conduct violates some other professional standard of conduct.

¶ 29 Bladen quotes at length, and with apparent approval, many of the authorities we have cited above which discuss a therapist’s mishandling of the transference phenomenon. Bladen did not present the court with the issue now before us, and therefore the court did not directly address the question of whether a doctor who provided such ad-hoc counseling and emotional support so as to have effectively taken on the role of a mental heath care professional, and who failed to properly handle the resulting transference phenomenon, may be liable for any resulting damages. However, we conclude that because Bladen recognizes that a cause of action arises from the “mishandling of a specific tool used by [mental health] professionals in the course of treatment,” that if presented with facts that proved that tool was wielded and mishandled not by a psychologist, psychiatrist, or other therapist, but by a general practitioner who, through his actions effectively took on the role of a mental health care provider, that courts of this state would recognize a cause of action.

Application to Case at Bar

¶ 30 Having established what is and what is not actionable in this state, we now turn to the specific propositions of error raised by Patient. Patient’s first proposition is that the trial court erred when it permitted evidence and testimony to be presented to the jury that allegedly effectively relitigated the issue of whether a physician-patient relationship existed, despite the Board’s earlier finding, and Doctor’s admission that it did exist. We find this to be without merit because the existence of the doctor-patient relationship was stipulated and was not subject to relitigation. As set out above, Doctor admitted having sexual contact with Patient, and admitted to remaining Patient’s primary physician at the time. However, the validity of Doctor’s defense — that he was not treating Patient for her psychological problems, or that this was merely consensual sexual contact between two adults, was a question of fact for the jury. As set out above, there must be a causal connection between the doctor-patient sex act and Patient’s damages and, as we have determined, that connection is treatment. Just as Patient should be permitted to introduce evidence proving treatment took place, so should Doctor be allowed to introduce evidence that no treatment took place.

¶ 31 Patient’s next proposition of error is that the trial court erred in giving Jury Instruction No. 11, which reads as follows:

You are instructed that Martin Davis, D.O., has admitted that he engaged in sexual activity within the physician/patient relationship. However, the ultimate issue of treatment at the time of the sexual encounters is for your consideration and decision.

¶32 Patient objected to the instruction on the basis that the issue of sexual conduct within a physician-patient relationship was already established, and thus the issue was precluded. Patient objected that the “meaningless” distinction between the “physician-patient” relationship and “treatment” rendered the instruction infirm. It is important to note that this is the only instruction which purports to address the circumstances under which a physician may be liable for sexual relations with the patient.

Standard of Review of Jury Instructions

¶ 33 We review given or refused jury instructions to determine whether there is a probability the jurors were misled thereby and reached a different conclusion than they would have reached but for the questioned instruction, or whether there was excluded from consideration a proper issue of the case. Ankney v. Hall, 1988 OK 101, 764 P.2d 153; Woodall v. Chandler Material Co., 1986 OK 4, 716 P.2d 652; Van Wart v. Cook, 1976 OK CIV APP 39, 557 P.2d 1161.

¶ 34 Based upon our analysis above, we hold the trial court’s instruction was proper in charging the jury with the task of ascertaining whether treatment occurred. We reverse the case, however, and remand for a new trial because we hold, based upon the evidence set out below, that neither this instruction, nor any other instructions, sufficiently instructed the jury regarding the circumstances under which the Defendant could be liable for negligence. The court’s instructions failed to adequately apprize the jury that the Defendant could be liable (1) if he incorporated sexual conduct with the patient as a purported treatment modality, or (2) he, in effect, took on the role of a psychologist-psychiatrist giving rise to a possible transference phenomenon.

¶ 35 In this connection, the record reflects Doctor admitted at trial that:

Well, my role as physician really changed with her. As I said, I became more of a confidante. I became more of a sounding board for everything that was going on. So, you know, I left my role, which was totally wrong, as a physician, and became personal with her.

He later stated:

A. As I said, I took on the role of being-closer to her.
Q. Now, how many other patients did you have that you decided to take on a different role with at that time?
A. At that time?
Q. Yes, sir.
A. None.

¶ 36 We conclude that evidence at trial suggested that despite Doctor’s referral to a psychiatrist to handle Patient’s emotional and psychological problems, and despite his continued encouragement of Patient to continue to seek psychological counseling, a jury could find that Doctor’s admitted role of “confidante,” “friend,” and “sounding board” was of such a nature that Patient could have interacted with Doctor not only as a medical care provider, but as a psychotherapist as well. This possibility was recognized by Doctor when he testified that as early as March 1992, he discussed the concept of transference with Patient, and knew that he should have terminated the doctor-patient relationship, but chose not to do so.

¶ 37 Nothing herein should or can be interpreted to obviate Patient’s burden of proof. In order to prevail on her claim, Patient must overcome the defenses of consensual sex and the termination of the doctor-patient relationship prior to the sex act, and affirmatively prove the existence of a doctor-patient relationship and that a sexual encounter took place because it was either represented to be part of the medical treatment regimen, or the medical physician took on the role of a de facto psychotherapist or other mental health care provider and failed to properly handle the transference phenomenon, as evidenced by the sexual contact. Such contact may constitute delivery of substandard medical care and may render the doctor liable in tort:

[I]f a medical professional not practicing in the field of mental health enters into a relationship of trust and confidence with a patient and offers counseling on personal matters to that patient, thus taking on a role similar to that of a psychiatrist or psychologist, that professional should be bound by the same standards as would bind a psychiatrist or psychologist in a similar situation.

McCracken v. Walls-Kaufman, 717 A.2d 346, 352 (D.C.1998).

¶ 38 Reviewing the instructions given to the jury, we note the trial court correctly recognized that the issue of treatment was raised by the evidence, and correctly submitted a jury instruction that mentioned treatment. But that instruction was vague and not adequate to explain the necessity that sexual conduct be made a part of treatment to render Doctor liable. Further, the instructions did not address the issue of whether Doctor took on the role of a therapist, thus giving rise to the transference phenomenon, which he then failed to properly handle, therefore providing substandard care.

¶ 39 Oklahoma law imposes a duty on the trial court to instruct upon the decisive issues of the case as supported by the pleadings and evidence introduced. See, e.g., Bradley Chevrolet, Inc. v. Goodson, 1969 OK 25, 450 P.2d 500; Vogel v. Rushing, 1949 OK 275, 212 P.2d 665. This is so even though the particular issue may not have been specifically alleged by the party prior to trial. Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907. If this were not true, a plaintiff could control the court’s instructions by the allegations of his pleadings, regardless of whether or not they were ever supported by evidence. Williams v. Wilson, 1962 OK 33, 368 P.2d 992. Failure to so instruct is grounds for a new trial. LPCX Corp. v. Faulkner, 1991 OK 46, 818 P.2d 431; Young v. First State Bank, 1981 OK 53, 628 P.2d 707.

¶ 40 We therefore reverse the trial court’s March 13, 2000, judgment and remand the matter for a new trial.

¶ 41 REVERSED AND REMANDED FOR NEW TRIAL.

STUBBLEFIELD, J. (sitting by designation), concurs, and RAPP, J., concurs specially.

RAPP, J.,

specially concurring.

¶ 1 While I am in agreement with the majority, I must also note that Plaintiffs counsel here erred in failing to properly frame the issues for the trial court and submit for its consideration requested instructions identifying and framing the issues for the jury, which this court has been required to do. Plaintiffs counsel has, in effect, been given a second chance here because he failed to identify the issue resulting in fundamental error in the trial of this matter.

      .Transference has been defined as " '[t]he process whereby the patient displaces on to the therapist feelings, attitudes and attributes which properly belong to a significant attachment figure of the past, usually a parent, and responds to the therapist accordingly.’ ” St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698, 700 (Minn.1990) (quoting S. Waldron-Skinner, A Dictionary of Psychotherapy 364 (1986)). "The patient, required to reveal her innermost feelings and thoughts to the therapist, develops an intense, intimate relationship with her therapist and often 'falls in love’ with him." Id. Even though transference is not confined solely to psychiatric treatment and the mental health profession, it has generally been accepted that mental health professionals expect and even elicit this phenomenon as a regular and accepted part of treatment. Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000).

      . We note that "[transference is not a recognized component in the medical treatment of physical conditions." Odegard v. Finne, 500 N.W.2d 140, 143 (Minn.Ct.App.1993). See also Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000).

      . The Oklahoma Supreme Court in Bladen v. First Presbyterian Church, 1993 OK 105, 857 P.2d 789, does address the issue of whether a minister who engages in an adulterous affair with a married woman, while providing marital counseling to her and her husband has committed a tort. The Bladen court concluded the husband did not have a legally cognizable cause of action for clergy malpractice or seduction. We discuss Bladen elsewhere in this opinion.