The U.S. Court of Appeals for the 7th Circuit rejected a Veterans Administration nurse’s challenge to his discharge for an unorthodox approach to diagnosing male genital warts in Riano v. McDonald, 2016 U.S. App. LEXIS 15097 (Aug. 17, 2016).
James Riano, who worked as a registered nurse for the VA in Milwaukee, had previously worked as a hospital corpsman in the Navy. In 2004, he began working as an RN at the VA medical center. Beginning in the summer of 2007, he began working at a new clinic specializing in treating genital warts in men. He lost his job after a patient complained that Riano sexually assaulted him while giving him an examination.
Subsequent investigation disclosed that Riano’s usual routine in examining men for genital warts was to apply moisturizing cream to the penis and then applying pressure by hand until at least partial erection was achieved. Riano accompanied this with crude language which he said was intended to put the men at ease, using words like “pecker” and “balls.”
Riano insisted that this technique was used in the Navy for such examinations, because, he claimed, it was easier to detect genital warts on a hard penis than a flaccid one. In some cases Riano’s technique (perhaps overly energetic, or dealing with somebody suffering from “premature ejaculation”?) led to patients experiencing orgasm.
The VA’s Office of the Inspector General interviewed many men who were examined by Riano and concluded that his methods (and the sexually-oriented language he was using during examinations) were inappropriate, “not standard and not medically necessary,” and he was discharged. He pursued an administrative appeal, producing statements from some patients who were quite satisfied with how they were treated by Riano (some of them clearly appreciated the “happy ending”), and some were even critical of the investigator, saying his questions were “too aggressive” and that their answers were taken out of context. Some objected that the investigator “raised an inappropriate consideration by asking if they believed Riano was gay.”
Riano wanted the appeals board to receive live testimony from these patients, but the board denied his request, citing patient privacy, “potential emotional harm, and the adequacy of the patients’ written statements.”
The board also excluded as irrelevant Riano’s proffer of testimony from a former corpsman who had trained and worked with him in the Navy, where Riano claimed to have learned and applied this examination technique without complaints. (Those Navy boys just want to have fun during those long excursions at sea!) Riano also denied some patient reports about the language he used during their examinations and the allegation that he was actually masturbating patients for his own sexual gratification.
The hearing board received expert testimony refuting Riano’s contention about the desirability of provoking an erection to facilitate an exam for genital warts, in response to which Riano presented testimony from a female nurse practitioner that a partial erection could be beneficial in this context, but that it was not medically necessary and that she had never purposefully induced a patient’s erection for this purpose. However, she opined that Riano’s technique was “within the scope of practice for a nurse” and that his use of sexually crude language in dealing with male patients was not necessarily outside the scope of normal practice.
Another testifying nurse confirmed Riano’s contention that using “moisturizing cream to create a sheen” made warts easier to detect.
Ultimately, the board found that “Riano had used language and an examination technique that was medically inappropriate,” and the board’s contention was upheld in Riano’s subsequent appeal to the federal district court.
Circuit Judge Ann Claire Williams, writing for the panel, found no due process errors and concluded that the evidence in the hearing record was sufficient to support the board’s conclusion, inasmuch as Riano did not “dispute the relevant details about his technique and language” and so “he has failed to show that he was harmed by the lack of live patient testimony.” Furthermore, she endorsed the board’s determination that the expert testimony provided was sufficient to support the board’s conclusion that Riano’s behavior departed from “appropriate professional conduct.”
The court’s opinion says nothing about Riano’s sexual orientation, and he did not make it an issue in the case, relying instead on due process arguments to challenge the fairness of the Board’s decision.