Sexual Misconduct - Preventive Medicine and the Seven Deadly Sins: Avoiding Discipline Against your Medical License

Most newly hired investigators for the Medical Board of California find the prospect of investigating physicians intimidating. There is something about having the initials M.D. succeed a name that implies a certain level of intellect - of accomplishment - of ... virtue?

Of course, we quickly learn that despite how some revere physicians in our society, physicians are human beings. Human beings are flawed. Flaws pervade our best intentions. In fact, fallibility is so predictable that the ancient adage, "Seven Deadly Sins," remains a relevant description of our moral challenges. And, this includes doctors!

This series of articles will explore how the Seven Deadly Sins impact physicians. They will describe relevant code sections, how we commonly see these sections violated, and what precautions you can take to decrease the likelihood of discipline against your medical license.

Let's begin with what may be the most obvious of the "Seven" for physicians: Lust

Business and Professions Code section 726 prohibits sexual relations with patients. The law reads:

It is important to note that although this section sanctions providing medical treatment to a spouse or domestic partner equivalent, physicians should be aware that they are required to practice medicine with the same degree of care and professionalism as they would for a "conventional" patient. If drugs are prescribed, there should be a good faith examination undertaken and documented. There is no exclusion from the requirement to keep an adequate and accurate medical record for a family member. Just remember, there should be no difference in how you treat your "spouse" patient versus how you treat your "office" patient.

Business and Professions Code section 729 prohibits sexual exploitation of a patient or client by a physician and surgeon or psychotherapist. It reads:

This violation is a public offense, which means it is a crime. A first offense constitutes a misdemeanor. A second conviction, or a case where there are two or more victims, is actually a felony.

Of interest, this law also includes the proviso: "... in no instance shall consent of the patient or client be a defense. However, physicians and surgeons shall not be guilty of sexual exploitation for touching any intimate part of a patient or client unless the touching is outside the scope of medical examination and treatment, or the touching is done for sexual gratification."

Similar to Business and Professions Code section 726, this section also does not apply to sexual contact between a physician and his or her spouse or person in an equivalent domestic relationship when that physician provides medical treatment, other than psychotherapeutic treatment, to his or her spouse, or spousal equivalent.

Each Medical Board investigator probably can recount three or four outrageous cases of sexual misconduct that they have investigated. For me, one was a renowned psychiatrist who had a seven-year affair with a schizophrenic patient. Their sexual relationship began in the library of a university medical school. Their relationship culminated with the psychiatrist using the patient to procure prostitutes with whom he, and the patient, would have group sex. Instead of paying money for the prostitutes' services, he bartered by providing them with prescriptions for Klonopin or other controlled substances. Not to be limited to a mere one or two violations of law, he would then bill Medi-Cal for group therapy (definitely one of the more creative liberties I've seen taken with a CPT code). This physician's license was revoked and he was also criminally convicted of fraud.

There are less dramatic cases, however. There are the cases where the physician and patient begin a professional relationship, but the professionalism erodes into subtle boundary violations. The patient is invited to call the physician by his or her first name. The physician begins flirting. There may be a lunch date. A variety of increasingly intimate behaviors ensue until ultimately, a sexual relationship commences. This scenario was realized for a pain management patient who suffered from intractable back pain. Initially, she and the physician had an appropriate relationship. The physician became increasingly familiar. The patient was greatly flattered. Before long, the patient engaged in an extramarital affair with the physician, but there was an unintended consequence to this affair. As the physician and patient's relationship intensified, so did the patient's stress. This exacerbated her pain condition. The physician's ability to make sound medical decisions suffered. In this example, not only were charges of sexual misconduct filed, but this lack of objectivity lead to quality of care violations. These were two seemingly rational people who fell in love with each other with very serious consequences to both. It does not matter that the patient is willing. It does not matter if the patient flirts. It is the physician's responsibility, as the professional, to take whatever measures are necessary to prevent a sexual relationship from occurring.

John R. Sealy, M.D., an expert on the subject of sexual addiction and sexual misconduct by physicians, has provided training to Medical Board investigators. He provided this valuable missive, entitled "General Truths" to identify known dynamics of sexual misconduct involving physicians.

1. No matter how difficult or boundary testing the patient/client may be, IT IS ALWAYS the professional's responsibility to maintain appropriate boundaries or, if unable to do so, to refer the patient/client for competent help or counsel.
2. Sexual misconduct usually begins with relatively minor boundary violations. Boundaries include time, place/space, money, gift/services, clothing and language.
3. Crossing boundaries by a professional is almost always a power differential.
4. The professional must refrain from obtaining personal gratification at the expense of the patient/client. The main source of personal pleasure comes from the professional pleasure gained in helping the patient/client. The fee for professional services is the only material satisfaction a physician should receive directly from the patient/client.
5. No level of training, nor school of medicine, school of law, school of dentistry, or school of psychotherapy confers immunity from sexual misconduct by a professional.

If this is not compelling enough information to dissuade mixing romance with medicine, consider this: sexual misconduct cases will more often result in a temporary suspension of a license than any other type of case. Sexual misconduct cases also are much more likely to result in a disciplinary outcome of surrender or revocation of license, versus probation. (For example, of 11 cases resolved during fiscal year 04-05, seven resulted in a surrender of license, three resulted in revocation and only one resulted in probationary terms and conditions.)

Consider the following red flag situations for physicians when interacting with patients:

• You start talking to the patient about the patient's personal life
• You check your personal appearance before a particular patient arrives
• A patient is scheduled at the end of the day to "allow for more time"
• You allow your staff to go home early while you interact with a particular patient
• You offer the patient food or drink
• You exchange gifts or hugs with a patient
• You offer free care to a particular patient
• You call the patient at home when the condition does not warrant it
• You meet the patient outside the office

We investigators recognize that the vast majority of physicians are consummately professional and will conclude their medical career without an allegation of sexual misconduct. We also recognize that patients make false allegations. Our duty, as objective finders of fact, is to gather the evidence to determine whether there has been a violation. There are precautions you can undertake to protect yourself. We strongly recommend having a chaperone present during the examination of any patient, regardless of gender. It is also important to thoroughly explain examinations of intimate areas, as complaints often arise because the patient is taken by surprise by an exam, or doesn't understand the necessity of a particular exam. Additional suggestions can be found in the "The Garman Guidelines" (see below).

Take a few moments to review this information. Heeding these suggestions will underscore the necessity of keeping this sin banished from your practice, will provide you with information that should prevent misunderstandings from arising and, consequently, complaints from being filed against you.

The Garman Guidelines
by J. Kent Garman, M.D.
President, Stanford University Hospital Medical Staff
"Waiting for your first accusation before taking some of these simple steps is foolhardy."

1. Allow patients to disrobe and dress in private and offer cover gowns and appropriate drapes. (Yes, some physicians do not practice these simple steps.)
2. 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.)
3. 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.)
4. 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.)
5. 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.)