Accusations of Sexual Misconduct or Harassment Against Physicians
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
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
The Garman Guidelines
- 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
- 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
- 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.)