Accusations of Sexual Misconduct or Harassment Against Physicians
Excerpted from July 1994 Action Report
by J. Kent Garman, M.D.
President of the medical staff at Sequoia Hospital, Redwood City, CA
Member, San Mateo County Medical Association's Board of Directors
San Mateo County newspapers have recently publicized two criminal cases against physicians alleging sexual battery. Both physicians have lost patients and the respect of some of their colleagues. Without speculating on the degree of guilt or innocence in either case, it is fair to say that these two physicians will never enjoy their previous standing in the community after having these cases aired publicly in court. Since the Medical Board of California (MBC) may have a higher standard of ethics than the legal standard of the court, it is even possible that they will ultimately face Medical Board disciplinary measures. Also, it is possible that civil suits may award the alleged victims large settlements. There are also other accusations in this county which could ultimately proceed to criminal accusations.
Over the previous several months, articles on sexual misconduct have appeared in the San Mateo County, Santa Clara County, and Kern County Medical Associations' Bulletins. Also, articles appear monthly in trade and consumer magazines. In addition, 10 years ago, the term sexual harassment was rarely heard and certainly not understood. It is obvious that times have changed and physicians had better quickly learn the rights and wrongs of sexual misconduct or face possible accusations. While issues of sexual misconduct are clearly MBC's purview, issues of sexual harassment are more likely to be a cause of civil action. Sexual misconduct can be defined as unwelcome behavior of a sexual nature which can take several courses. First, asking for sexual favors in exchange for some job-related benefits is clearly illegal and unethical. Second, creating a hostile work environment because of some conduct or harassment of a sexual nature is also illegal and unethical, although harder to prove. In both cases, the test is whether the victim felt the acts were unwanted. A federal court adopted a "reasonable woman" standard in 1991 in determining what constituted sexual harassment.
The fact remains that many men (and perhaps women) do not understand what constitutes sexual misconduct. This is a new age, where previously condoned male behaviors toward women are no longer considered acceptable. We must all learn to become more sensitive to the feelings of the opposite sex.
However, what we are seeing is even more subtle. Physicians (usually male) are increasingly being accused by patients (usually female) of improper conduct during physical examinations. In most cases, a chaperon was not present and the physician vehemently denies the accusation. These accusations can stem from poor physician-to-patient communication regarding the procedure or examination, misunderstandings by the patient of intent, or anger toward the physician for some reason.
Also, some physicians do actually abuse patients under the guise of medical care. The problem of medical staffs and the courts is to sort out the real episodes of abuse from the false accusations. Unfortunately (or perhaps fortunately, depending on which side of the accusation you are on) the burden of proof in the civil court system seems to have shifted to the accused to prove innocence. It often boils down to which of two individuals you believe, based on past history and credibility. Often multiple accusations are made against one physician when other patients and associates hear of the accusation. In other cases, multiple complaints are reported without any prompting. In either event, multiple accusations are much harder to defend since they seem to point to a pattern of misbehavior.
Physicians must be held to a higher standard than others, simply because of the very private nature of the doctor-patient relationship. There is a "zero-tolerance" far as the courts in California, the MBC, and the AMA are concerned. Any intimate or sexual relationship between a physician and a patient is illegal and unethical. There are no exceptions to this policy, nor should there be, even in the case of mutual consent. According to the AMA policy, if an intimate relationship develops, physicians are expected to terminate the professional relationship at the least, although even this may not protect against allegations of unethical behavior if a physician "uses or exploits trust, knowledge, emotions or influence derived from the previous professional relationship."
The fact remains that some patients may find your behavior as a physician improper and may proceed to accuse you of sexual misconduct. Some women are much less tolerant of male physicians and may carefully examine your behavior during physical exams. Even if you are "squeaky clean" as far as you are concerned, the bottom line is that it is your word against the patient's when there is no witness present. Therefore, unfortunately, some defensive behavior by you is probably necessary to avoid future problems. I advise physicians to take certain steps to avoid these problems.
Therefore, consider the five measures listed here to create a circumspect environment during physical examinations.
Although it is impossible to guard against all possibilities, the measures suggested should make it very unlikely that you will be accused of sexual misconduct by a patient.
The Garman Guidelines
"Waiting for your first accusation before taking some of these simple steps is foolhardy."
- Allow patients to disrobe and dress in private and offer cover gowns and appropriate drapes. (Yes, some physicians do not practice these simple steps.)
- Have one of your office staff in the room whenever possible, especially during breast and pelvic exams. (I have talked to many physicians who feel this is silly and an added burden on their office staff. However, many women are very offended if these exams are done without another person in attendance. It would be reasonable to have your office nurse ask your patient if she would prefer to have an attendant in the room.)
- Improve your communication with the patient about the reasons for and methods of examinations. (If you feel a breast examination for axillary lymphadenopathy is necessary for a hand infection, tell the patient why you are doing it.)
- Avoid any flirtatious behavior toward patients. (Since you are perceived as a "power" figure, the patient may be hesitant to complain directly to you about jokes or other "innocent" behavior.)
- Ask someone else to review your office procedures regarding physical exams with a view toward avoiding any risky procedures or making necessary changes. (One series of complaints was dealt with by asking the physician's female office staff to review and change standard examination procedures to avoid future problems.)