A few years ago, a physician assistant was accused of sexual touching because he placed the stethoscope just under the area near the breast while he listened to the heart -- very standard routine exam. The complaint was dismissed but only after an interview and investigation.
Recently, I was asked to consult on a case where a physician was charged criminally with a violation of Business & Profession Code 726 which prohibits sexual contact with patients since the physician had consensual oral sex with a patient.
Currently, I am representing a health care professional who is accused of touching a woman's breasts over the clothes during an exam. The case has been filed criminally since the same complaint was made by two different women and the present plea offer is a misdemeanor but with a requirement that he register as a sex offender. The sex offender registration is part of the regular plea offer. In his case, it would not be a bar to practice but if he were a physician assistant it would be a bar.
The Physician Assistant Committee in California has decided to increase the level of discipline for any physician assistant who has had sexual contact with a patient or who has been convicted of a sex offense as defined in Section 44010 of the Education Code. Under the revised California Code of Regulation 1399.523 there is a finding that any proposed decision "shall contain an order revoking the license" and that "[t]he proposed decision shall not contain an order staying the revocation of the license."
What does this mean? First, if a physician assistant has sexual contact with a patient in violation of Section 726 or is convicted of any sex offense defined in Education Code Section 44010 which includes any registration as a sex offender -- the physician assistant's license will be revoked and is not eligible for probation.
For those unfortunate enough to be charged with any offenses related to sexual touching or gratification, any defense or plea of such charges needs to consider this important change.
For those that are practicing, it is critical that the use of chaperones -- especially for male PAs -- be considered as a routine policy. It should be essential during physical exams especially during breast and pelvic exams. However, all the patient needs to allege are things like touching a breast over clothes, rubbing a penis against a leg during a physical exam -- and there can be a critical issue. I have seen such allegations and they seem to be increasing for a variety of reasons and most of the cases I have handled have been false or exaggerated claims.
Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
Any questions or comments should be directed to Tracy Green, a very experienced California physician assistant attorney, health care attorney, and California Board attorney at tgreen@greenassoc.com.
The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/
