Attorney Tracy Green Quoted in Los Angeles Times' Article Regarding USC Gynecologist Under Investigation. Green Is Concerned About Physicians Failing to Perform Proper Gynecological Physicals and Rectal Exams Due to Concern Over Sexual Misconduct Allegations.

Attorney Tracy Green was quoted in an article by the Los Angeles Times published on May 30, 2018 entitled "LAPD begins sweeping criminal probe of former USC gynegologist while urging patients to come forward. This is the type of case that is growing due to the media attention which means the need for due process and the need for a full and complete investigation is even more necessary when a media storm is occurring. 

I pesonally have seen a huge change in how physicians do physical examinations the past ten (10) years. While I will not comment on whether I believe there was any misconduct (unprofessional, malpractice or even criminal), I will say that due to cases like this, physicians are AFRAID of putting their hands on patients.

I just had a women's well women exam and pap smear. The physician - Board Certified Internist and woman with a chaperone present with 10 years of experience and USC residency and medical school - did NOT insert her finger in me to see if there were any tumors or thickening or the usual. Nor did she do a breast exam on me. In addition, I had just had acute diverticulitis with bleeding from the colon (for which I was on Cipro) and she did NOT do a digital rectal. She did not even ask. Physicians are too afraid that someone will say it was for 'sexual gratification' and file a complaint.

I am very concerned about all of this. Physicians and care providers should not abuse their position. However, patients need to be educated that part of proper medical care is inserting a gloved finger in the vagina and is necessary and is part of a proper well women's exam and not just for sexual gratification. Hardly. Doctors can feel tumors, thickening of the tissues, pick up on bleeding, check the cervix, feel for endometriosis, and more (I'm not a physician and did not train as one.) 

Read this article from a well-respected Gynecological Medical Practice on what to expect during a gynecological exam. The article states: "After the Pap Smear test, your health care provider will remove the speculum and perform a bimanual exam to check the health of your ovaries and uterus. This portion of the exam involves inserting a gloved and lubricated finger in to the vagina with one hand. With the other hand, they will press down on your stomach. You will feel pressure and some light discomfort is possible, but again, always tell your gynecologist how you are feeling throughout the examination."


So yes, I was shocked last month when I had a pap smear and there was no finger inserted to check out my gynecological health even though the female internist had a chaperone. (The Gynecologist under investigation had a chaperone always but that did not seem to protect him so physicians are using his case as a reason to do substandard defensive medicine.)

Physicians are scared. Guess what, there are some weird doctors out there but the overwhelmingly vast majority are good competent doctors who get no sexual arousal from putting their finger in a mid-50s white woman lawyer (me). Am I going to complain about the doctor who did not do the job she should? No. Sadly, most of the physicians are doing the same but I am hoping to educate physicians and the administrators to please not give into the fear and educate patients.

Please, let's be smart on how we respond to allegations. Please find out the facts. Please understand the medicine. And let's not scare all the doctors from doing good medicine.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law

76 Year Old Los Angeles Chiropractor Accused of Sexually Assaulting A Patient - What Can You Learn From This?

On June 3, 2014, the Los Angeles Times reported that a 76 year old chiropractor -- practicing for 40 years -- was arrested of sexually assaulting a patient.  Manuel Domingo Chacon was arrested and was held on $100,000 bail but it should be remembered that these are accusations and he is presumed innocent.

While we do not know the facts of this case, it is a reminder that a "sexual assault" or "sexual touching" allegation is very difficult to defend.  My recommendation is for there to be a chaperon in the room where patient are seen. The doors should remain open unless there is a chaperon there.

I often have clients claim they cannot afford it but I recommend having a low skilled medical assistant who can assist with charts and who can enter in each chart their presence during the examination.  I have had clients careers harmed by allegations much less serious than a rape or sexual assault.  I have seen medical providers of brushing up against the outside of someone's clothing for a second. I have seen a physician accused of brushing up his clothed groin area against a patient while performing a laser procedure.

It is not only criminal allegations that are the concern.  If a patient makes that complaint to a Medical, Chiropractic, Pharmacy, Behavioral Science or other Board, those Boards will almost always let them go to hearing and let a judge decide the validity of the allegation.

As part of your best practices, consider making this change in your practice. In today's world, it is easy for someone to make a false claim in the hopes of getting a settlement or if they have psychiatric or other psychological problems that could add to the issue.  Make sure any inappropriate comments by patients are charted and if there are patients who have boundary issues, consider discharging those patients from your practice (while following all the rules and precautions in discharging them).  Be safe out there and be healthily paranoid.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Phone: 213-233-2260
Email: tgreen@greenassoc.com

New Rules Require Revocation Of Physician Assistant License If Registration As Sex Offender Required - Critical To Have Chaperones And Be Careful Of Plea Agreements Involving Sexual Issues

Over the years I have represented physicians, physician assistants, nurses and other health care professionals who have been accused of unlawful "touching" by a patient. In a number of these cases, the allegations were false. For example, one high profile gynecologist was accused of sexual touching when he conducted a breast exam of a 55 year old woman with fibroid breasts both with her laying down and sitting up. Since she had never had a breast exam where she was sitting up, she made a complaint. The complaint was dismissed but it was an unpleasant interview for the physician to go through simply because he was being thorough.

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/

Sexual Misconduct Cases For Professionals Can Be The Most Problematic: Case Study Of California Attorney Who Had Sex With Two Clients

Sexual misconduct cases for professionals are among the most problematic and often require going to a full administrative hearing in California in order to achieve a complete dismissal or exoneration. This is true whether it is for attorneys, physicians, psychologists or other therapists.  Even if the allegations are false, the various Boards are reluctant to dismiss sexual allegations outright or have concerns about the settlements not requiring probation. The Boards seem to want to have some jurisdiction over the licensee.

Our office has handled a number of sexual conduct allegations where even where the allegations clearly could not be proven by clear and convincing evidence and there were serious credibility issues with the complainants, the Boards wanted the professional to be on probation and required the matters to go to hearing.

A recent case involving the State Bar shows how an attorney's sexual misconduct case has been pending for six years and how the Chief Trial Counsel's Office wanted a harsher discipline than was originally rendered and appealed what seemingly was a fair decision for the attorney.  The attorney now faces potential disbarment.

Both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct prohibit lawyers and clients from engaging in “sexual relations” unless they predated the representation. Even then, however, other ethics rules may apply to the extent that sexual involvement may adversely impact the attorney-client relationship.

On June 17, 2010, a State Bar Court judge has recommended disbarment for Hollister, California lawyer Patrick Earl Marshall (age 63) – who had sexual relations with two incarcerated clients when he was a contract public defender.  This recommendation followed arguments from the State Bar prosecutor’s office that a stayed suspension  and probation was too lenient. Mr. Marshall will be placed on involuntary inactive enrollment effective June 18 pending approval by the California Supreme Court of the disbarment recommendation.

This case has a lengthy history. In  May 2004, Mr. Marshall was charged by the Chief Trial Counsel’s Office  with engaging in sexual misconduct with two female clients who were incarcerated in San Benito County at the time. Over the objections of the Chief Trial Counsel’s Office, Mr. Marshall was admitted to the State Bar’s Alternative Discipline Program, which allows for substance abuse or mental health treatment before a case is decided. Mr. Marshall entered into an agreement to assist in his recovery process from depression disorder, sexual disorder, narcissistic personality disorder and obsessive compulsive disorder.

When he completed the program in 2007, the State Bar Court Hearing Department imposed a one-year stayed suspension and two years’ probation for his misconduct. The Chief Trial Counsel’s office appealed the decision to the Supreme Court, which, in 2009, ordered the State Bar Court to conduct further hearings.

On appeal, the decision was not favorable for Mr. Marshall. “Despite respondent’s successful completion of the ADP and LAP [Lawyer Assistance Program] and years of therapy,” State Bar Court Judge Lucy Armendariz wrote in her disbarment decision. The judge argued that since Mr. Marshall argued that the sex was consensual, it was apparent that he “has not fully grasped the egregiousness of his offenses and the extreme harm he had caused the administration of justice and integrity of the legal profession.” Judge Armendariz noted that Marshall went so far as to argue that a mitigating factor should be that his misconduct accounted for no more than “an hour’s total duration.” Thus, the judge used Mr. Marshall's arguments to show that he was not accepting full responsibility for his behavior. This can be a fine line in administrative cases.

“Violation of one’s professional and ethical duties is not measured by the length of time,” Judge Armendariz wrote. “Having improper sexual relations with a client breaches the basic notions of trust and integrity and endangers public confidence in the legal profession, irrespective of its duration . . . His persistent claims that the sexual relations were consensual and that [one woman] never told him to stop are indeed troubling and adversely reflect on his fitness to practice law.” The judge referred to an Iowa Supreme Court decisions which stated that “‘the professional relationship renders it impossible for the vulnerable layperson to be considered ‘consenting.’”

Sexual misconduct can encompass a variety of intimate relationships. The California rule defines “sexual relations” as “sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification or abuse.” This can cover even kissing or hugging depending on the circumstances. If one can look at the issue before anything occurs, the experienced professional will keep his or her personal life out of the office. A professional's reputation for honesty and integrity will remain intact by keeping professional relationships professional.
 
If you are the subject of a sexual misconduct complaint, it is important to seek counsel at the earliest possible time. If you are asked to be interviewed by any Board investigator it is key to consult an experienced Los Angeles administrative attorney, Los Angeles Medical Board attorney, Los Angeles State Bar attorney, or an attorney experienced with your particular board or agency. 

Posted by Tracy Green, Esq.  Any questions should be directed to Tracy Green, a very experienced California administrative board attorney, California board attorney and California license attorney. You can email her at treenassoc.com">tgreen@greenassoc.com or call her at 213-233-2261.

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 health care providers, attorneys and other licensed professionals in administrative actions in California and throughout the country. Their website is: http://www.greenassoc.com/