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Neurology Today:
doi: 10.1097/01.NT.0000421893.20874.cf
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LEGAL-EASE: Sexual Misconduct: Don't Let Your Actions Place You at Risk

Avitzur, Orly MD, MBA

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Nearly eight percent of neurologists can expect to be sued each year, according to an analysis that appeared in the New England Journal of Medicine last year. While medical malpractice charges can be certainly be demoralizing, we all recognize that this potential risk exists, and we've been trained to protect ourselves through good communication and documentation skills. But the possibility of facing sexual misconduct charges almost never crosses our minds, even though their consequences are often devastating and may even be career-ending.

“Most state medical boards consider sexual misconduct cases a very high priority, perhaps because there has been so much public and legislative attention paid to them in recent years,” said Stephen Boreman, JD, a former FBI Special Agent, who worked in the Health Quality Enforcement Section with the California State Attorney General for ten years. “In California, about 2 percent of all licensed physicians face disciplinary action each year, and the medical board investigations of sexual misconduct are highly publicized,” he said. Although there are certainly egregious cases, many times the allegations take physicians by surprise, as it had not occurred to them at the time of their actions that they could be placed under jeopardy, Boreman explained.

Boreman cites the case of William Joseph Roy, Jr. MD, a gynecological oncologist, who found himself in those circumstances in 2007, due to an incident that occurred when he agreed to meet a patient at a restaurant to be interviewed for her English class. Following the meal, after he had walked her to her car, he declined her invitation to meet again, but according to testimony, when he held out his hand to say good-bye, the handshake turned into an embrace with the patient touching him and hugging him in a sexual manner. Later on, after he had terminated the professional relationship, they entered into a romantic relationship. But when that soured, the patient brought forth charges of sexual misconduct based on the parking lot interaction that had occurred while she was still a patient. Although Dr. Roy claimed that he had been a passive participant, the appellate court eventually ruled that effectively, a doctor can be a mere ”gropee” and still be subject to discipline, taking the broadest possible interpretation of sexual misconduct, and stating that the term applies, without qualification, to “any intentional touching of an intimate body part of another for a sexual purpose.”

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Dr. Roy did not lose his license, but he did receive a letter of reprimand from the court. The court subsequently denied his petition to overturn the lower court ruling and remove the letter of reprimand.

Even passive acquiescence to sexual conduct with or by a patient is prohibited, said Boreman, who noted that most medical boards make no exceptions (except where the patient is the spouse or significant other). “For physicians, the brief thrill or ego boost from such attention from a patient is simply not worth the risk,” he counseled. “No doctor wants to be contacted by a medical board investigator and questioned about allegations of an inappropriate sexual relationship with a patient, especially if that doctor believes it was the patient, and not the doctor, who initiated and engaged in inappropriate contact; moreover, the potential professional and personal consequences — as well as general fall-out of allegations such as these — are profoundly serious and damaging,” warned Boreman.

“To avoid coming within your state medical board's investigative cross-hairs, physicians must realize they are in a fish-bowl when it comes to personal relationships with patients, and should avoid situations where misperceptions might occur,” he advised, adding that non-professional contact or meetings with patients, unless brief and purely accidental, should be avoided, even where the patient appears to be making a reasonable request.

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SET PROFESSIONAL BOUNDARIES

“Sexual misconduct needn't be flagrant to do harm, and patients have been known to allege injury from ‘covert’ exploitation, which might include behaviors such as a physician's flirtations; revelations about his/her own personal or sex life; long, full-body hugs; or inappropriate comments about the patient's clothes or body,” said Ann H. Larson, JD, who serves as legal consultant for Medical Insurance Exchange of California, which provides medical liability insurance for physicians. “Making casual comments about a patient's body, even in jest, is asking for trouble,” said Larson.

Similarly, physical patient contact, even a hug, may be misinterpreted, noted Boreman, who presently works in a law practice representing physicians when they get in trouble with the California state medical board. Hugs or any physical sign of affection can send confusing signals to a patient. “Physicians should, at all times, keep physical patient contact to a strictly professional norm,” he said.

“It's also a matter of context,” Larson added. “The quick good-bye hug to a grandmotherly type in the hallway is much different than a private hug to someone in the exam room when the door is closed.”

Experts advise that physicians should also avoid discussing their personal lives or problems with patients. “This is a professional boundary issue,” Boreman pointed out, stating that it could be construed as an invitation to get close to somebody. “I tell physicians not to talk about what a bad day they're having — even if they don't mean anything by it, the patient could misconstrue your intention,” he explained, cautioning that such conversations may be perceived by the patient as a segue into a more personal relationship. “Given that physicians are presumably held in esteem and respected as authorities by patients, revealing personal details or problems may give the impression that the physician wants a more personal, intimate relationship with the patient than is actually intended,” he remarked.

Larson has observed that these allegations often occur in the private office setting, with few people around. “Asking someone to come in at the end of the day after the staff have left, for example, is inviting disaster,” she warned.

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WHAT ABOUT FORMER PATIENTS?

If a patient brings up the possibility of a relationship, say you can't go there, and ask if they'd be interested in seeing another physician, instructed Boreman, advising that the patient is best transferred to another doctor. Larson also cautions doctors against dating former patients and recommends that if it's done at all, the relationship should not commence until after the period of time specified according to their state laws (typically two years) has elapsed. Larson, who defends physicians in cases of alleged professional misconduct, said, “It's not unusual in these cases, for allegations to include statements like, ‘I knew that he was interested in me back when I was a patient because of the suggestive comments he made.’”

The American Medical Association (AMA) Council on Ethical and Judicial Affairs advises: “Sexual or romantic interactions between physicians and patients detract from goals of the physician-patient relationship, may exploit the vulnerability of the patient, may obscure the physician's objective judgment concerning the patient's health care, and ultimately may be detrimental to the patient's well-being. Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician-patient relationship.”

Boreman points out that according to the California Business and Professions Code, any physician who engages in sexual activity with a patient — or a former patient when the physician-patient relationship was terminated primarily for the purpose of engaging in those acts — is guilty of sexual exploitation. “The code further provides that in no instance shall the consent of the patient be a defense,” he observed.

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WHEN TO INCLUDE A CHAPERONE

Although chaperones are rarely employed when neurologists examine patients, patients should be given the opportunity to disrobe and dress in privacy, and when intimate areas are examined, a nurse, medical assistant or other chaperone should be asked to be present. And when a patient is obviously flirtatious, seductive, or inappropriate, the presence of a chaperone is wise. “Although it's not considered the absolute standard of care, it's a good idea to take this protective step when you sense any ‘red flags,’ such as borderline traits in a patient,” Larson reflected. She goes further to recommend that all physicians take the time to document the presence of a chaperone in the chart, and ask the chaperone to initial it. Similarly, if a patient tries to initiate a boundary violation, document it in the chart, and transfer their care if the situation cannot be managed and persists, she advised.

Finally, be aware that your malpractice carrier may only cover you partially, if at all, against defending allegations of sexual wrongdoing. “Medical liability insurance will typically defend a doctor if there is a negligence claim along with an intentional misconduct claim,” Larson said, “but will not cover damages related to the latter.”

Dr. Avitzur, a neurologist in private practice in Tarrytown, NY, holds academic appointments at Yale University School of Medicine and New York Medical College. She is an associate editor of Neurology Today and chair of the AAN Practice Management and Technology Subcommittee.

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HOW TO HANDLE THE 'red FLAGS'

The Medical Board of California posted the following advice from an action report by a supervising investigator who described 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

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JOHN C. HUTCHINS, JD, AAN ASSOCIATE GENERAL COUNSEL: THE AAN DISCIPLINARY ACTION POLICY

Members of the AAN, non-members, and the AAN as an organization, may file a complaint to the AAN's Grievance Committee against an AAN member. According to the Disciplinary Action Policy, a member of the AAN may be subject to discipline if the member's conduct conflicts with the standards and principles of the AAN, which includes “unprofessional conduct.” The AAN's disciplinary peer review committees (Grievance Committee, Fair Hearing Panel Committee, Executive Committee of the Board of Directors) review and address allegations of unprofessional behavior and take action when deemed appropriate. If a complaint is sent through the process and it is determined that a member violated the standards and principles of the AAN, the Disciplinary Action Policy allows for reprimand (private or public), suspension from membership, or expulsion from the AAN.

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REFERENCES:

• Jena AB, Seabury S, Chandra A, et al. Malpractice risk according to physician specialty. N Engl J Med 2011; 365:629–636.

• The American Medical Association (AMA) Council on Ethical and Judicial Affairs: http://bit.ly/RZxoPC.
• California Business and Professions Code: http://1.usa.gov/RZx03I.
• Medical Board of California — Advice on Handling ‘Red Flags’: http://1.usa.gov/Rg3NXZ.

©2012 American Academy of Neurology

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