A good relationship between physician and patient must be built on a high level of trust and professional responsibility. Any sexual impropriety—real or imagined—by a physician toward a patient will seriously damage that relationship.
Every year, physicians in California face allegations of sexual misconduct. Such allegations can result in civil litigation and disciplinary action by the state medical board. In addition, the allegations can lead to criminal misdemeanor or felony charges, with potential penalties ranging up to three years in prison and a $10,000 fine. In short, allegations of sexual impropriety can pose a serious threat to a physician’s medical license and entire career.
What Is Sexual Misconduct?
Physician sexual misconduct is any nondiagnostic and nontherapeutic behavior that exploits the physician-patient relationship in a sexual way. The behavior may be verbal (expressions of thoughts and feelings) or physical (gestures that are explicitly sexual or that a patient may reasonably construe as being sexual).
Guidelines by the AMA’s Council on Ethical and Judicial Affairs prohibit any sexual contact between physicians and their patients, as well as any sexual contact with former patients where the physician exploits the previous professional relationship. The guidelines also discourage sexual contact between physicians and key third parties—such as spouses, parents or caregivers—who accompany patients to the office.
The Federation of State Medical Boards of the United States (FSMB) delineates two main levels of physician sexual misconduct: sexual violations and sexual impropriety. Violations include actual physician-patient sex—no matter which party initiates it—as well as any conduct with a patient that is sexual in nature, or that reasonably may be interpreted as sexual.
According to the FSMB, sexual impropriety comprises behavior, gestures or expressions that are sexually suggestive or sexually demeaning to a patient. Examples: inappropriate comments about a patient’s body or underclothing, disrobing practices that reflect a lack of respect for the patient’s privacy, and examining or touching the genitals without the use of gloves.
Avoid Misunderstandings
Certainly, physicians should not engage in any flirtatious behavior toward patients. In reality, however, the majority of complaints don’t arise from outright flirting or inappropriate actions, but from misunderstandings regarding “boundaries” and miscommunication between physicians and patients.
A report from Vanderbilt Medical Center titled “Sexual Boundaries and Physicians: Overview and Educational Approach to the Problem” indicates that the number of doctors struggling with sexual boundary problems appears to be between 3% and 10% of the U.S. physician population. The problem appears to cross all medical specialties.
It is not unusual for doctors to face serious allegations because a patient has misunderstood a justifiable clinical examination. For instance, a family practitioner sees a teenage girl with suspected glandular fever. Without explaining his actions, he begins to feel the lymph glands in her armpits. The patient subsequently complains that he fondled her breasts.
Do everything possible to avoid such misunderstandings—and that includes even before an examination begins. As part of its “Garman Guidelines,” the Medical Board of California recommends that patients be allowed to disrobe in private and be offered cover gowns and appropriate drapes.
Also before starting the examination, be aware of how a patient may perceive what is about to take place. Describe what the examination will entail, and give the patient an opportunity to ask questions. It is particularly important to explain your actions if you need to examine one part of the body when the symptoms are felt in another.
Use Chaperones
The fact that alleged misconduct often occurs outside the presence of an independent witness makes any charges potentially more difficult to defend. Using a chaperone can help protect physicians (and patients) against complaints.
The presence of a chaperone is highly recommended during intimate examinations—for example, those of the breast, genitalia or rectum. However, it is important for physicians to understand that not only intimate examinations can cause problems. Other things to keep in mind:
- Don’t assume that a chaperone is not needed if the patient is the same gender as you. There have been cases when doctors have been accused of inappropriate behavior by patients of the same sex.
- In general, adolescents have a lower embarrassment threshold than adults. You might be wise to use chaperones when dealing with this patient population.
- Take a patient’s cultural and religious beliefs into account when considering using a chaperone.
Many patients feel that the presence of a third party during an intimate examination is intrusive and embarrassing. Patients have the right to decline a chaperone, and you should not try to force them to accept one. If a chaperone is offered and declined, make a note of this in the patient’s records and include any relevant discussion.
You do have the right to protect yourself. If you don’t want to conduct an examination without a chaperone being present, explain this and ask the patient either to change his or her mind or to accept a referral to another doctor.
It is a good idea to have a written policy regarding the witnessing of physical exams. The policy should require that a third party be present during examinations of the sexual and reproductive organs, and require that a third party be available to witness any other physical examination at the patient’s request.
The policy should state that the dignity of patients must be maintained at all times, describe the implications of physician misconduct and explain how to handle flirtatious advances from patients.
Finally, take any allegations of sexual misconduct seriously. Document them thoroughly and contact SCPIE’s Risk Management Department and/or Claims Department (call 800/585-7799) if you have any questions.
