Sexual Misconduct Claims Review Panel

In response to an alarming number of malpractice suits alleging sexual misconduct by physicians, The Doctors Company convened an expert panel to explore this volatile subject.

The panel of physicians reviewed 17 current cases. The high number of claims underscores the seriousness of the problem. In addition to civil litigation, criminal and/or licensing penalties may result from sexual misconduct claims. Even when the physician is innocent, the stress of this kind of litigation is enormous.

Below is an overview of the 17 cases, followed by a summary of each case.

• Physicians involved in the claims represented nine specialties: family practice; internal medicine; gastroenterology; orthopedics; plastic surgery; pediatrics; urology; psychiatry; and anesthesiology.
• Claims were made against a psychologist, a physical therapist, and a chiropractor based on the alleged negligent conduct of their employees.
• All 17 defendants were male. Sixteen of the plaintiffs were women; only one was a man.
• Six of the cases appeared to represent calculated harassment of the physician and abuse of the legal system for financial gain.
• In three cases, a sexual relationship clearly existed between the physician and a current patient.
• In three cases, the physicians had histories of similar charges made against them.
• Two alleged incidents occurred, physicians claimed, while they were impaired by drugs or alcohol.
• Most of the plaintiffs were more than 21 years old. In one case, the plaintiff was a 13-year-old girl. This was the only suit that also involved a concurrent criminal investigation.
• At least three claims might have been prevented had the physician exhibited a reasonable degree of basic politeness or a more professional bearing. This report follows a case review and discusses current medical literature, statutes, and legal and ethical recommendations for avoiding such cases.

Case 1

The first case reviewed by the panel involved an allegation by a male patient that his plastic surgeon fondled his genitalia after excising a nevus from the patient’s groin and penis. Initially, the case suggested no liability on the part of the physician. Further investigation, however, revealed similar allegations earlier in the physician’s career, as well as the fact that the physician had hired the patient to drive him to a nearby resort where the two shared a hotel room.

Case 2

A 13-year-old patient sued her physician for inappropriate touching during a pelvic examination. A nurse was present at the time, but unfortunately the physician appears to have been intimately involved with the nurse. Eleven similar claims, made in the absence of publicity regarding the charges, were filed against this physician. Criminal charges against the physician are pending, and he is also undergoing drug rehabilitation.

Case 3

The third case involved a pediatrician and a 20-year-old patient. The pediatrician performed a physical examination of the patient as part of her admission to an inpatient psychiatric facility and saw the patient again after admission for complaints of epigastric tenderness; he diagnosed peptic ulcer disease. Within a month of that second visit, the pediatrician and the patient began an affair that continued through the pediatrician’s divorce from his spouse—the psychiatric facility’s admitting psychiatrist. When the affair ended a year later, the patient filed a lawsuit against the pediatrician.

Case 4

A 36-year-old woman with nephrolithiasis was referred to a urologist. As part of a preoperative evaluation performed in the x-ray department, the patient alleged that the urologist performed an inappropriate breast examination. The urologist indicated that he felt a suspicious breast mass, though he forgot to record it in the history and physical. When he saw the patient for follow up in his office, he wanted to repeat the examination. In the process, he attempted to remove the patient’s tank top, which became entangled and pinned her arms above her head.

On the third and final visit, the patient— equipped with a hidden recorder—appeared in the urologist’s office and complained of a vaginal yeast infection. Although unaware of the recorder, the urologist did not examine the patient; instead, he referred her to a gynecologist. The status of the breast mass was unknown at the time the panel convened.

A less-hurried initial examination might have averted this case. The mental vision of a physician wrestling with a patient to undress her is difficult for the defense to dispel.

Case 5

A 32-year-old woman sued her internist for failure to diagnose chronic fatigue immune deficiency syndrome. She alleged that the physician’s demeanor constituted sexual and personal harassment.

The doctor felt the patient was being sexually provocative by wearing an extremely low-cut dress to her appointment. He argued that he consciously acted to defuse the situation by speaking to the patient directly about her clothing. He stated that he casually mentioned that the low cut of her dress made it easy for him to use his stethoscope, and that he then led the conversation to a discussion of his wife and her activities.

This is a complex case involving questionable diagnoses, controversial medical tests (anti-Candida antibodies), and an obviously litigious patient. Nonetheless, it probably would have been avoided if the physician had responded more neutrally to the sexual challenge.

Case 6

The sixth case involved a 49-year-old woman who sued her orthopedist for inappropriate physical manipulation during a worker’s compensation examination. A nurse was not present, though the door was left open. A pelvic examination was not performed. The case appeared to have been generated by the physician’s failure to support the patient’s allegation that her injuries were work related.

Case 7

A psychiatrist had a sexual relationship with a 35-year-old patient. While under his care, the patient required hospitalization five times for attempted suicide. Suits were brought by both the patient and her husband. Though the case was indefensible on the basis of any medical or ethical standards, it appeared to have been precipitated by the psychiatrist’s decision to marry another woman.

Case 8

This case involved the allegation of a female patient that her family practitioner became aroused and touched her inappropriately during a physical examination for injuries received in an automobile accident. There was no evidence to support the patient’s claim.

Case 9

In a suit against an occupational therapy medical group, the plaintiff alleged sexual molestation by an employee physical therapist. After the patient made her initial complaint to the group, her care was assigned to a female physical therapist. The patient then explicitly requested that she be reassigned to the original physical therapist. She claimed that there were additional episodes of inappropriate sexual behavior, and a suit was filed.

The actions of both the therapist and the patient were difficult to defend. The court, however, was unlikely to side with the therapist.

Case 10

The plaintiff in this case took her son to see her family practitioner five days after an automobile accident. The plaintiff did not have an appointment for her to see the physician that day, but she requested that he examine her because of ongoing head and body aches. In the brief examination that followed, the patient’s weight was recorded as more than 350 pounds. Her breasts were examined through her clothes in a manner she alleges was inappropriate.

Investigation of this case revealed no evidence of sexual misconduct on the part of the physician but strongly suggested motives of financial gain on the part of the patient. The case might have been avoided if the physician had either refused to accommodate the patient’s impromptu request for an examination or, having acquiesced to it, had undertaken it in a more professional manner.

Case 11

A 46-year-old woman sued her internist of many years, claiming sexual misconduct. He had treated her for hyperthyroidism, rheumatoid arthritis, and depression. Following a pelvic examination that correctly revealed the presence of an ovarian cyst, the patient indicated that she was a battered wife and was leaving her husband. Three months later, the physician and the patient initiated an affair. After several encounters, the patient indicated that she "wanted to be treated like a queen" and made a comment about not having any of the perks and big houses to which doctors’ wives are entitled.

The case was further complicated by the fact that the allegedly abusive husband was a retired district attorney who had filed his own suit against the physician.

Defending cases involving sexual relationships with current patients is virtually impossible, regardless of who initiates the relationship and how consensual it might appear.

Case 12

This case involved a 51-year-old woman who sued her orthopedist for inappropriate touching during independent medical evaluation of a worker’s compensation claim. When the physician indicated that he did not believe she had a serious injury, the patient became hostile, stating, "You’ll be sorry about this."

The evidence strongly suggested that this case involved harassment and intimidation of the physician by an exploitative patient.

Case 13

A 31-year-old woman alleged inappropriate touching during an examination by her anesthesiologist in the recovery room. While the physician denied any wrongdoing, a male nurse who witnessed the alleged incident also filed a complaint against the physician. Further investigation revealed similar allegations in the past.

Case 14

A 34-year-old woman alleged inappropriate touching by a chiropractor employed by a physicians insured by The Doctors Company. The patient’s sister was in the room at the time of the examination. This suit was brought against the group for negligent employment of the defendant. The decisive issue was the credibility of the chiropractor versus that of the patient.

Case 15

A 47-year-old woman seen once by an internist as part of a medical examination for the Immigration and Naturalization Service filed suit against the physician. The patient refused a gown, and so the examination was performed with the patient naked from the waist up. There was no evidence of inappropriate activity on the part of the physician, and the case was defended vigorously.

Case 16

The case involved a psychiatrist who employed a psychologist to treat a 31-year-old woman for depression and kleptomania. The patient alleged that the psychologist touched her inappropriately during their sessions. The psychologist’s employment has been terminated. This appeared to be another case in which a patient developed a romantic attachment to a caregiver and became angry when the relationship was not carried forward.

Case 17

This was an extremely complicated case involving allegations of inappropriate rectal and vaginal examinations brought against a gastroenterologist. A number of patients were involved. The suits generally alleged inappropriate examination of the vagina and the performance of rectal examinations in embarrassing positions for an unusual length of time, in an effort to obtain an adequate specimen for occult blood testing. This case became public and involved allegations against the physician made in newspapers and on television, multiple malpractice suits, and a criminal investigation. The facts remain in dispute. The adverse media publicity and the extraordinarily complex nature of the civil and criminal investigation of this physician represented a frightening picture of our legal system in action, regardless of outcome.

Discussion

In a recent national survey of 10,000 family practitioners, internists, obstetricians/gynecologists, and surgeons that resulted in 1,891 responses, nine percent acknowledged sexual contact with one or more patients. Even if none of the non-respondents had made sexual contact, the incidence would still be at least two percent. ¹Those are stunningly high figures among primary care physicians, especially assuming a bias toward underreporting. The American Medical Association’s Council on Ethical and Judicial Affairs flatly concluded that: "Sexual contact or a romantic relationship with a patient concurrent with the physician-patient relationship is unethical." ²It must be emphasized that this admonition is directed to physicians in all specialties.

Although statutes vary from state to state, romantic entanglements with current patients can almost never be justified in a court of law and in some states may invoke criminal sanction as well. Sexual contact with the patient by psychotherapists is defined by current California law as a crime of sexual exploitation.

In the field of psychiatry in particular, some authors have argued that the doctor-patient relationship is essentially permanent and that sexual contact between a therapist and a patient is not appropriate even long after the termination of active therapy.³The American Journal of Psychiatryhas featured vigorous correspondence in the "Letters to the Editor" section on this topic.⁴Other journals have argued that a one-year waiting period after termination of the therapeutic relationship, during which no social contact is allowed, would be adequate to protect patients and still permit the evolution of appropriate intimate relationships.⁵

Suggested guidelines for all specialties include a two-year period after the last episode of patient care in which no social contact would be allowed prior to the initiation of the romantic relationship. These guidelines have been published by various authors who advise that physicians and former patients "should meet again in a context entirely unrelated to the previous professional encounter." The authors strongly advocate the need for additional physician education in this area. ^{6, 7, 8}

In most cases, the panel case summaries do not mention whether a nurse was present in the room. In fact, a nurse was present in at least half of these incidents. Thus, merely having a nurse present will not prevent all allegations of sexual abuse. Nonetheless, we cannot say how many claims were prevented because a nurse was present. At the very least, the panel felt that a nurse should be present whenever a pelvic examination is performed. Though not all panelists agreed that a nurse’s presence is mandatory, it is undoubtedly prudent to have a nurse present when a rectal examination is to be performed as well.The panel was not willing to recommend that a nurse’s attendance be required during all general physical examinations.

Summary

• Cases involving sexual misconduct by physicians are increasing in number, are potentially devastating, and present extremely difficult medical, legal, and ethical issues.
• Some cases clearly involve predatory physicians, but an equal or greater number involve predatory patients.
• Basic politeness, a professional manner, and appropriate staffing will prevent many, though not all, such suits.
• Sexual relationships with current patients are indefensible. A waiting period of at least a year following a termination of the doctor-patient relationship is necessary before considering a romantic involvement. Some suggest a longer waiting period, and some argue that such relationships are simply not appropriate. The official position of the American Psychiatric Association is that such relationships are never appropriate.

J3228 5/2000

Updated: May 2000 Originally published: January 1994