Dealing with a sexual misconduct claim

Legally Speaking

Clifford Warren Lober

Dr. Lober is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.

Bookmark and Share

Bryan returns from court and finds Sandra waiting in his reception room. She is quite agitated and insists on speaking with him immediately. He ushers her into his office and begins the conversation.

Bryan: Sandra, it’s good to see you again. How are you?

Sandra: Not well. I have just received a letter from one of my patients, Mr. Jones, stating that he feels that the examination I performed on him last month was excessive. He said that he felt embarrassed and humiliated and that there was no reason for me to have examined his genital area. I am very uncomfortable with this allegation!

Bryan: Why and how was the examination performed?

Sandra: Mr. Jones came to my office with a diffuse, inflamed rash. In order to make the proper diagnosis, I needed to perform a complete examination of his skin including his genital area. Before performing the examination, I gave him a gown and stepped out of the examination room while he changed into it.

Bryan: Was anyone else present when you did the examination?

Sandra: I offered to have my nurse present but the gentleman did not want anyone else present. He insisted on his privacy.

Bryan: Patients certainly have the right to privacy. Physicians, however, have a right to have a chaperone present. If a patient refuses to have a chaperone such as your nurse present, I would first explain the reason for your office policy. If he or she still refuses to have a chaperone present, I would document this fact in their medical record and refer them to another physician. To proceed with an examination under these circumstances may leave you open to an allegation of sexual misconduct. If the patient changes his mind and permits a chaperone to be present, the presence and identity of the chaperone should be noted in the patient’s medical record.

Sandra: What exactly qualifies as sexual misconduct?

Bryan: Sandra, sexual misconduct includes not only physical acts but also inappropriate verbal or body language that may reasonably be construed as sexual or seductive in nature. The Federation of State Medical Boards explicitly recognizes that “sexual behavior between a physician and a patient is never diagnostic or therapeutic.” When determining whether a comment or act was inappropriate courts tend to view the circumstances from the perspective of the patient.

Sandra: I had no idea that he thought my examination was objectionable until I received his letter. He never said anything when he was in the office.

Bryan: His attorney may contend that since the physician is perceived as the dominant, authoritative figure in the doctor-patient relationship, Mr. Jones did not feel comfortable speaking up during his visit.

Sandra: What else might his attorney consider?

Bryan: Although your medical record and the patient’s account of the encounter will be of paramount importance, the plaintiff’s attorney will also look for suggestive surrounding circumstances. Was there a lock on the examination room door? Did you tend to linger with the patient after the medical visit was over? Was the patient always or frequently scheduled to be the last patient seen at the end of your day? Although suggestive circumstances are absolutely not determinative, they may influence a plaintiff attorney’s decision on whether to proceed further with the case. [pagebreak]

Sandra: If the patient had been a woman, would it have made any difference?

Bryan: Absolutely not! Remember, Sandra, that allegations of sexual misconduct can be made by any patient, regardless of gender. If any patient exhibits clearly inappropriate conduct, comments, or gestures during an examination you should terminate the encounter, document the chart, and refer the patient to another physician.

Sandra: While we are on the subject of sexual misconduct, is it ever appropriate to date a patient?

Bryan: I am aware that some of my legal colleagues have advised that you may refer the patient to another physician and can then date the patient after a period of time. I am also aware of situations in which physicians and former patients have had long, successful marriages. Nevertheless, I strongly advise you not to date your patients. No matter how long you wait, the fact that you were in a doctor-patient situation when the relationship began persists indefinitely and may be brought up years later. Certainly there are enough individuals of the gender you prefer that you do not have to date your patients.

Sandra: Well, what should I do now with respect to Mr. Jones?

Bryan: I would send him a certified letter expressing your sensitivity to his concern and clearly explaining the necessity for the complete skin examination. Mention that he was offered a chaperone, given a gown, and examined in an unlocked examination room near your nurse’s station. Tell him that if you had any idea he felt uncomfortable at any point, you would have immediately terminated the examination.

Sandra: What if this goes further? Will my malpractice insurance cover your legal fees and any potential judgment?

Bryan: It depends. Insurance companies have attempted to consider allegations of sexual misconduct to be intentional acts which are not part of medical evaluations or procedures. Attempted seduction of a patient, for example, is an intentional act which is not part of any normal medical procedure. In these cases, physicians are not covered by their malpractice policies. Furthermore, even if you succeed in obtaining coverage through your medical malpractice policy the applicable coverage limits may be inadequate. Remember that I advised you to speak to your insurance agent to get insurance that covers allegations of harassment and sexual misconduct?

You should also be aware that in addition to civil action by the patient and disciplinary action by the State Board of Medicine, criminal liability may exist in certain circumstances, such as when a physician uses sedatives or coercion to reduce a patient’s resistance to sexual advances or if the patient is a minor. In this specific case, however, I do not see any basis for alleging criminal liability. Nevertheless, I will review the letter you need to send to Mr. Jones and closely follow this situation with you.

Sandra: Thanks, Bryan!

If you have any suggestions for topics to be discussed in this column, please e-mail them to me at loberc@gmail.com. See the February 2013 issue of Dermatology World for disclaimers.

Key points

  1. Sexual misconduct includes not only physical acts but also inappropriate verbal or body language that a patient may reasonably construe as sexual in nature. Physicians can be accused of sexual misconduct regardless of their gender or the gender of the patient.
  2. Courts usually view the physician as the dominant authority figure in the doctor-patient relationship.
  3. Physicians have the right to have a chaperone in the examination room. If the patient refuses after you have explained your office policy, refer the patient to another physician.
  4. If the patient refuses to have a chaperone in the room,proceeding with an examination may leave you open to the allegation of inappropriate touching and/or sexual misconduct.
  5. Although there are instances where physicians have dated and even married patients, there are strong reasons not to date patients.
  6. If your insurance company successfully contends that alleged sexual misconduct was an intentional act (such as attempted seduction) rather than being part of a normal medical evaluation or procedure, you will not be covered by your malpractice insurance.
  7. In addition to possible civil action by the patient and disciplinary action by the State Board of Medicine, criminal liability exists in certain circumstances, such as when a physician uses sedatives or coercion to reduce a patient’s resistance to sexual advances or when the patient is a minor.

 

Related Resources

Key points