Wednesday, April 8, 2009

Sexual Misconduct Allegations Against Physicians And Health Care Providers: How To Avoid Them - Risk Management

Allegations of sexual misconduct against California physicians and health care providers have become more frequent in recent years. Such allegations are made against providers by their patients, by individuals who believe they have established a provider-patient relationship with the physician, the provider's staff, and even, on occasion, by another provider. Our office has represented physicians and other health care providers in many cases involving allegations of sexual impropriety or misconduct and most of these claims were false or greatly exaggerated.

The legal consequences of allegations of sexual misconduct are potentially severe and may even be career-ending if not handled properly. The physician or provider may face probation, suspension or revocation of his/her license, the loss of hospital privileges, and the inability to obtain professional liability insurance. Additionally, he/she faces suspension of participation in HMOs, PPOs, and networks established by insurance companies and other third-party payors.

Further, the Medical Board and other professional Boards and Bureaus take any allegations involving sexual misconduct quite seriously and often unwilling to settle them without a full hearing or having the licensee agree to terms of probation that often include a psychiatric or psychological examination. Where there is a weak case, the Board may simply charge unprofessional conduct involving patient boundaries where there is no physical contact or the contact cannot be proven.

Some of the cases we have seem ridiculous but they must be taken seriously and all of these cases led to interviews by the respective Boards.

--The physician assistant who was investigated because the patient complained that he placed a stethoscope near her left breast while checking her heart and moved it to different locations surrounding her chest.

--The gynecologist who was investigated because the patient complained that he performed the breast exam while she was lying down on the table and then performed the second half of the exam while he sat in the chair next to her and that the gynecologist "appeared" to derive some sexual gratification from performing the breast exam.

--The plastic surgeon who was investigated because the patient accused him of calling her "pretty" and asking her to dinner which she supposedly refused because he was married.

--The provider who was alleged to have an erection during a procedure and allegedly pressed himself against the patient on the table. The patient waited two years to make the complaint but it was still investigated.

--The gynecologist who was alleged to have gotten "sexual gratification" from a pelvic examination without any real evidence other than the patient's claim that he appeared to be flirting with her by making jokes.

--The male internist who is alleged to have made suggestive comments during a physical examination of another male.

In all these cases, the Board investigation was closed after we presented the medical file, a dictated summary of the patient history, written statements from office personnel, copies of who were the actual records and prepared the health care provider for the interview. A good portion of the preparation was to ensure the health care provider had a professional demeanor (even though all of them were upset at even having to be interviewed or investigated), were not upset emotionally and did not make any comments that would be less than helpful.

Providers must recognize that any patient can make a complaint to the Board alleging that he or she was the victim of a provider’s sexual misconduct. The licensing boards and bureaus will investigate all such complaints, interview the patient who is alleging sexual misconduct, review the patient’s medical records that were compiled by the accused provider, and interview the provider and other possible witnesses.

Think about the statistics of encountering a psychologically unstable patient: if an OB-GYN or plastic surgeon has 2,000 patients, what are the chances over the course of several years what are the chances that one of them will have some psychological issue or get upset when she has some personality disorder or the physician refuses to give her pain medications or terminates her as a patient? Then there are the allegations that can arise due to poor communication, cultural differences or being in a hurry.

What can physicians and health care providers do to avoid being the target of a sexual misconduct investigation and/or action? Here are some common suggestions we make to providers:

(1) Allow patients to disrobe and dress in private and offer cover gowns and appropriate drapes. Do not move any of the patient's clothing such as lift up a sweater or shirt in order to save time but offer the patient a gown. (Some providers do not practice these simple steps.)

(2) Improve your communication with the patient about the reasons for and methods of examinations. If you need to complete a full physical or examine an intimate area, explain what you are doing and why you are doing it.

(3) Have an office staff member (a chaperone) in the room whenever possible, especially during breast, pelvic and other intimate exams. Many providers feel this is unnecessary and an added expense and burden on their office staff. However, many women are offended (or think there is something wrong) if these exams are done without another person in attendance.

Having a chaperone present may make a patient reluctant to make a frivolous claim of sexual misconduct and, in the event allegations are made to Board, the chaperone’s testimony could prove vital. The physician must document in the patient’s chart the chaperone’s presence during the examination.

(4) At a minimum, have your office nurse or assistant ask your patient if he or she would prefer to have an attendant in the room. Document the denial of chaperone.

(5) If the patient declines a chaperone in the room during a physical exam, close the curtain for privacy but leave the door open. We have seen many allegations of the "door being closed" to insinuate that there is something improper.

(6) The provider must recognize that a patient may allege sexual misconduct of either the heterosexual or homosexual variety.

(7) A patient who exhibits inappropriate or suggestive behavior must never be examined without a staff person or other independent individual present. The physician should strongly consider transfer of the patient’s care to another physician, being sure to take the appropriate steps so that the patient has no ground to allege abandonment.

(8) Seek legal counsel as soon as you are aware of potential or actual allegations of sexual misconduct.

(9) Document in the patient’s chart any flirtatious, suggestive, or lewd behavior evidenced by the patient.

(10) Remember that it is always your professional responsibility to maintain appropriate boundaries even with difficult patients/clients. Where there are minor boundary violations, it is easier for a patient/client to make a claim of sexual misconduct. Seemingly innocent things like hugs, gifts, performing services for free, meeting for lunch or dinner outside the office unless it is in a group, jokes, talking about your or the patient/client's personal life can create boundary violations.

(11) Ask your office staff for input about procedures regarding physical exams with the intention of avoiding any risky procedures or making necessary changes. Your office staff may be more aware of how patients will view these examinations and are more aware of the "potential problem" patients.

(12) If your practice has a higher risk of these type of claims (plastic surgery patients and physicians spend time talking about bodies, looks, etc.), be especially mindful. The cost of having a medical assistant follow the physician around and being present (and document her presence in the chart) can free the physician up so he doesn't have to monitor himself when he says: "your breasts look fantastic" after the results of an enhancement surgery.

What Is California Law Regarding Sexual Relations With Patients Or "Sexual Exploitation" Of A Patient?

Here is the law in California that prohibits sexual relations with or sexual exploitation of patients. Business and Professions Code section 726 prohibits sexual relations with patients. The law reads:

"The commission of any act of sexual abuse, misconduct or relations with a patient, client, or customer constitutes unprofessional conduct and grounds for disciplinary action for any person licensed under this division. . . . This section shall not apply to sexual contact between a physician and surgeon and his or her spouse or person in an equivalent domestic relationship when that physician and surgeon provides medical treatment, other than psychotherapeutic treatment, to his or her spouse or person in an equivalent domestic relationship."

Although this section allows physicians to provide medical treatment to a spouse or domestic partner equivalent, physicians should be aware that they are required to practice medicine with the same degree of care and professionalism as they would for a "conventional" patient. If drugs are prescribed, there should be a good faith examination undertaken and documented. There is no exclusion from the requirement to keep an adequate and accurate medical record for a family member. Just remember, there should be no difference in how you treat your "spouse" patient versus how you treat your "office" patient.

Business and Professions Code section 729 prohibits sexual exploitation of a patient or client by a physician and surgeon or psychotherapist. It reads: "Any physician and surgeon, psychotherapist, alcohol drug abuse counselor or any person holding himself or herself out to be a physician and surgeon, . . . who engages in an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient or client, or with a former patient or client when the relationship was terminated primarily for the purpose of engaging in those acts, unless the physician and surgeon, . . . has referred the patient or client to an independent and objective physician and surgeon, . . . or recommended by a third-party physician and surgeon, . . . for treatment, is guilty of sexual exploitation by a physician and surgeon, . . ." This violation is a public offense, which means it is a crime. A first offense constitutes a misdemeanor. A second conviction, or a case where there are two or more victims, is actually a felony.

Of interest, this law also includes the warning: ". . . in no instance shall consent of the patient or client be a defense. However, physicians and surgeons shall not be guilty of sexual exploitation for touching any intimate part of a patient or client unless the touching is outside the scope of medical examination and treatment, or the touching is done for sexual gratification." The issue will be what is meant for "sexual gratification"?

Similar to Business and Professions Code section 726, this section also does not apply to sexual contact between a physician and his or her spouse or person in an equivalent domestic relationship when that physician provides medical treatment, other than psychotherapeutic treatment, to his or her spouse, or spousal equivalent.

Beware Of The Catch-All Phrase Of Unprofessional Conduct. The Boards often use the catch-all phrase of "unprofessional conduct" for behavior that does not rise to sexual relations or gratification. This is why it is important to take steps well in advance of the first patient complaint or Accusation.

Any questions or comments should be directed Tracy Green, is a principal at Green and Associates in Los Angeles, California. The firm focuses its practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers and has handled numerous cases involving allegations of sexual misconduct.

Posted by Tracy Green, Esq.
Phone: 213-233-2260


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