| TOPICS OF INTEREST - SEXUAL MISCONDUCT |
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| OMB STATEMENT OF PHILOSOPHY ON SEXUAL MISCONDUCT (1994) |
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The Oregon Medical Board recognizes that the practice of medicine entails a unique relationship between physician and patient. The patient's trust and confidence in a physician's professional status grants power and influence to the physician.
Licensees are expected to maintain a professional manner and to avoid behaviors that may be misunderstood by or considered offensive by the patient. Sexual contact of suggestion of any sort within a professional relationship, or any such contact outside the physician-patient relationship that exploits the patient's trust and confidence, is unethical.
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| FALL 98 OMB NEWSLETTER ARTICLE ON SEXUAL MISCONDUCT |
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Sexual Misconduct Revisited
By James S. Hicks, MD, Medical Director Oregon Medical Board
The lead article of the Spring-Summer issue of the OMB Report by my predecessor, Dr. John Enbom, addressed in detail the incidence of sexual boundary allegations both in Oregon and nationwide. Despite frequent attention focused on this matter, the issue of sexual involvement of licensees with their patients continues to surface. Discussed here is a compendium of recent complaints and inquiries received by the Board. Some merely require advice to the patient or the physician, while others, obviously require significant investigation.
Allegations of inappropriate examination or roughness during examinations are not uncommon. Specific examples, including the necessity to examine nipples for discharge or the performance of a digital rectal examination during a pelvic examination, have been recently questioned by patients. In both instances, a careful description of the proposed examination and an explanation of the type of information to be gained from the examination might have provided sufficient patient insight to preclude inquiry to the Board.
The question of the universal use of chaperones always arises in discussions of sexual boundary issues. Although there is no regulatory guidance for their use, the OMA Medical-Legal Handbook offers several useful guidelines in this regard: (1) a chaperone should always be offered prior to asking the patient to disrobe (and the patient should always be allowed to disrobe and get dressed again in private); (2) a chaperone should always be offered if it is unusual for the physician's practice to examine private areas or if such an exam seems unusual to the patient; (3) particular attention should be paid to the use of a chaperone in the case of very young or very old patients, patients whose cultural beliefs might require chaperoning, and those new to the physician; and (4) a chaperone should always be used if either the patient or the physician is particularly uncomfortable with the situation, or if there has been any concern in the past for even the suggestion of seductive behavior by the patient.
The patient often feels especially vulnerable during examinations of sensitive areas of the body, and can easily misinterpret comments intended to be funny or reduce anxiety. Careful explanations of reasons for examination, accompanied by assurances of normal findings when present, are perhaps the safest course. Asking the right question at the wrong time can also lead to trouble. Infertility and pelvic pain/dyspareunia workups are particularly troublesome, for questions regarding sexual positions and habits have been misinterpreted by patients when asked during the actual examination. When possible, such detailed questions should be reserved for the office interview after the examination, when they can be related to physical findings and the patient can answer them more comfortably.
Intimate involvement with a patient not one's spouse constitutes a serious and, unfortunately, recurring source of complaints. This violation can occur when a physician allows him- or herself to be drawn into an intimate relationship with a patient, or diagnoses and/or treats a person with whom s/he is having an intimate relationship. It remains the responsibility of the physician to resist "being seduced" by a patient, and seduction does not constitute a defense against such actions. Recently, a physician was placed on probation for ten years for prescribing for an office employee with whom he was having an ongoing intimate relationship. Physicians must realize that their position of trust and access to confidential information gives them a unique influence over patients. The Board has made its policy very clear on this point. Should there be any betrayal of this trust, the Board will aggressively pursue an assessment of the psychological damage done to the physician's partner(s), often requiring detailed and embarrassing interviews with both. It should be immediately made clear to patients that invitations to intimacy are outside the boundaries of your professional relationship with them, and can pose significant risks to your medical license. In obvious cases, it is to your advantage to record specific conversations in the chart and note any witnesses to the behavior.
The Board is often asked when, if ever, a physician may enter into an intimate relationship with a former patient. There is no clear-cut answer, but it is incumbent on the physician to demonstrate not only that the prospective partner is no longer a patient (relatively easy to do), but that the information gained during the doctor-patient relationship has no influence whatsoever on the decision to enter into the relationship (much harder to accomplish). The answer also varies with the degree of medical and psychological involvement you have had with the patient. The time between the end of a doctor-patient relationship and the beginning of a romantic relationship for someone whose sprained ankle you have wrapped would be different from someone whose depression you have managed over a period of time. The easiest rule to follow is "Once a patient, never a partner."
Sexual abuse of children unfortunately still occurs in the physician population. It is, of course, not only a violation of the Medical Practice Act but of criminal statues in addition. As you would expect, such matters are given intense scrutiny; such behavior constitutes one of the most egregious violations that the Board encounters.
Lessons to be gleaned from these cases can be summarized as follows: (1) tell patients exactly what you are doing and why you are doing it during examination of private areas; (2) maintain an atmosphere of decorum during these examinations; (3) never mix even the incidental practice of medicine with intimacy (or the incidental practice of intimacy with medicine); (4) clearly rebuff any patient's advances or suggestions for intimacy, recording such behavior if necessary; and (5) carefully consider any intention to involve yourself with a patient or former patient in light of the risks. The necessity to avoid even the slightest suggestion of intimate interest in minor patients should need no further discussion.
An excellent review of this subject is contained in the Oregon Medical Association's Medical Legal Handbook, available at a nominal cost from the OMA. In it is contained an excellent discussion of most of the situations described above, with a detailed discussion of their appropriate management.
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| SUMMER/FALL 2002 OMB NEWSLETTER ARTICLE |
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Hot Tubs and You
By Kathleen Haley, J.D.
When I came to the Board office eight years ago, I was surprised at the nature and number of sexual misconduct complaints that the Board received.
Surprised but undaunted - I felt certain the Board could remedy that state of affairs, and reduce the number of complaints down to practically nothing by making clear its expectations of licensees, and the consequences of inappropriate behavior with patients, (via notices in OMB Reports, etc).
However, I learned quickly that thanks to basic human nature, that was a very unrealistic expectation on my part. So I wanted to take a moment to outline some of the issues and circumstances leading to physician sexual misconduct, as I've observed them.
Patient Scheduling - There are two possible warning signs from this area of patient management: "When" and "Where."
Scheduling a particular patient for appointments late in the day is often a warning sign. When a physician notices that this is the case, or staff brings this circumstance to a physician's attention, it is probably a good time to re-examine that particular doctor-patient relationship for the potential of any undue intimacy.
Meeting with a patient outside the office is another potentially risky practice. Physicians may feel that it is quite an innocent practice, to stop and have a cup of coffee with a patient. And in some circumstances - in small communities and/or rural areas - this is often the case. In many cultures and circumstances, such informality is normal and is usually not harmful to the patient, or to the doctor-patient relationship.
However, in some circumstances, meeting a patient outside of a clinical setting can often be misread by the patient as the first step toward greater intimacy - regardless of which party makes the first such overture. The physician should take responsibility by assessing his or her relationship with a patient, any personal feelings regarding the patient, and any perception of the patients' possible feelings toward him or her, before arranging or entering any such meetings.
Providing Personal Counseling - Since Hippocrates' day, this has been an important part of the primary-care physician's scope of practice. Such counseling is often essential in treating the whole human being.
Generally, these sessions start out with the best of intentions on the physician's part. But it is possible for personal counseling sessions to lead to more intimacies between the physician and the patient - first emotional, then physical.
The Board does not suggest that physicians do not take the time or effort to hear and understand their patients' concerns. Even in our more clinical and cynical society, the physician is still regarded by many as not only a practitioner of medical science but also as a kind and wise counselor. But as with out-of-office meetings, it is only prudent that physicians take special care in monitoring any possible personal physician-patient (or vice versa) feelings that may emerge during such counseling.
Controlled Substances - The practice of medicine and the physician-patient relationship contain many gray areas. But there remains at least one black-and-white truism: Writing a prescription for a patient equals establishing a physician/patient relationship.
Physicians who prescribe narcotics to patients are encouraged to be doubly vigilant and scrupulous in their relationships with those patients, particularly where there is danger of emotional and/or physical vulnerability on the part of either party. The problem may be compounded by a romantic and/or sexual relationship between physician and patient.
It is surprising, but these have become "textbook cases" for the Board. Each agenda contains cases in which physicians gradually became more personally intimate with patients. Some patients had psychological or drug/alcohol problems, yet physicians continued to write inappropriate prescriptions or provide alcohol, while engaging in sexual misconduct.
Within clinical settings, physicians should avoid offering patients anything stronger than coffee or cola drinks for other than medicinal reasons. In this case, "clinical settings" includes those out-of-office meetings with patients to discuss health-related issues.
When physicians and patients are together in purely social settings - again, this often occurs in certain communities - the physicians should assume responsibility for their judgment and actions regarding the use and sharing of alcohol with patients.
Hot Water: For Birthing, Not Bathing! - When a patient tells you that her sister is going to be out of town for the weekend and that she has a great hot tub, the screaming answer in your brain needs to be "No, thank you!" The Board has seen more than one case involving physician sexual misconduct in which the hot tub has been the first, inviting way-station on the road to ruin, vis-à-vis a doctor's professional life.
In the case of sexual misconduct, as you may have noted in previous editions of this newsletter, the Board frequently places the physician on probation with many terms of compliance. In some cases, a suspension is imposed. Such Board orders are recorded in the National Practitioner Database, with serious consequences for the physicians involved. Often, they may have a very difficult time getting or remaining on insurance panels.
The question frequently arises: "What is an appropriate amount of time to lapse, before a physician engages in a romantic and/or sexual relationship with a former patient?" This question represents another gray area for physicians and patients, in which good judgment must be exercised.
The American Psychiatric Association (APA) recommends "Once a patient, never a lover" as its guideline for psychiatrists. The American Medical Association (AMA) does not issue such a blanket recommendation, but in its official Code of Medical Ethics appears to discourage such relationships. The AMA in opinion 8.14 of the Code opines that "(a)t a minimum," a physician should terminate the professional relationship before entering into the personal one.
Authors of the Code also noted that such relationships might be "unduly influenced" by the previous, professional relationship, and that such relationships are unethical if the physician "uses or exploits trust, knowledge, emotions or influence" obtained from that relationship.
So what is a proper interval for a transition from patient to partner? Two years has been suggested as an appropriate hiatus, but in some cases, this may be an extreme length of time.
At the other end of the scale, a physician thought he had formally terminated a particular patient relationship late in the afternoon on the same day he had written his soon-to-be-lover a long-term prescription for narcotics. The physician and his "former" patient engaged in sexual relations that evening. Obviously, the state medical board deemed that to be unacceptable behavior, and the physician was denied a license.
Again, it is best for physicians and other health care providers to determine on a case-by-case basis whether romantic/sexual relationships between physicians and former patients are appropriate, as well as the hiatus between the physician-patient partnership and something much more intimate.
Staying aware of sexual boundaries is easier said than done, in many instances. Physicians having difficulties maintaining these boundaries are encouraged, before it is too late, to seek help. There are a number of resources open to physicians, through The Foundation for Medical Excellence, the AMA or the Oregon Medical Association.
Other professional associations have practitioner resources as well: the Oregon Psychiatric Association, Oregon Society of Physician Assistants, Osteopathic Physicians and Surgeons of Oregon, Oregon Podiatry Association and the Oregon Acupuncture Association. For more information, contact the OMB.
We've already discussed hot water in passing. Literally staying out of it if one's bathing partner is a patient, is but one way to stay out of hot water in the figurative sense, when conducting physician-patient relationships. Maintaining professional boundaries is vital to patient health and public safety, as well as preserving the integrity of the health care professions.
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