Sexual Contact with Patients/Slippery Slope/Sexual Harassment

    Prevalence of Sexual Boundary Violations

    • 1.6% of state medical board actions (average among several state medical boards)
    • 7% of physicians who responded to self-report questionnaire (average among several U.S. surveys)  

     (Sansone 2009)   

    In a 2009 publication, Sansone and Sansone summarized the data from multiple state medical boards, and compared the data to several U.S. self-report questionnaires.  Their conclusion was that only a minority of physicians who commit sexual boundary violations with patients are disciplined by medical boards.  They also concluded that these violations are probably underreported in self-report questionnaires, due to low response rates.

    Sexual Contact with Patients

    • 1,600 surveys to IM, FP, OB-Gyn, OPH
    • 52% response
      • 4% had dated patients
      • 3% had sex with current patient
      • 3% had sex with former patient
      • 20% knew of colleague dating/intimate with patient  

     (Bayer 1996)

    The Slippery Slope

    • Gradual erosion of physician neutrality
    • Perception of patient treated as “special”
    • Socialization outside the practice
    • Disclosure of confidential information about other patients
    • Physician self-disclosures
    • Physical contact
    • Patient gains undue influence over physician
    • Preferential treatment
    • Extra-therapeutic contacts
    • Dating
    • Patient-physician sex  

    Boundary violations range from mild to severe, but they all are potentially harmful to the patient and may affect the quality of care that patient receives.  Examples of possible boundary violations include sexual/physical relationships, economic involvement, overtly political requests, or similar conduct that the patient would not otherwise engage in but for the actions, conduct, or directive of the physician.

    Boundary violations occur one small step at a time and almost without warning, yet if we are aware, the warning signs are there.  What appears to be innocent and small ends up being a commitment to an unprofessional relationship with a patient.

    There may be a counter-transferential feeling, a good feeling, in that the patient is one you “really like” so that seeing this patient elicits a pleasant feeling.  Neutrality begins to erode.  Talking more about yourself, your family, and personal issues also leads to loss of neutrality and you become more vulnerable, as does the patient.  Seeing the patient outside of the professional setting also leads to greater vulnerability.

    The physician may phone the patient, requesting a meeting.  Appointments are scheduled at the end of the day or additional time is taken for each appointment.  Payment is deferred.  All of these tend to make the patient “special.”  Dating may begin and sexual contact occur.

    Be aware, also, that there are patients who may try to control the physician or the appointment.  Transgressions by the patient in spite of the limits set by the doctor may occur.  The doctor must still be in control of the situation.

    A pride in one’s practice and one’s ability to help others is why many of us do what we do.  However, the pride in helping others is different than the pride in helping one person. It is risky to be excessively focused only on one patient.

    Blurred Boundaries

    The Sequence

    • Confusion
    • Crossings
    • Violations  

    This is the slippery slope’s results… first confusion regarding feelings and then the crossings, the behaviors.  The last is the actual violation where the patient-physician relationship is ambiguous and lost.

    Physician Issues – American Medical Association

    Current patients: Sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct. At a minimum, a physician’s ethical duties include terminating the patient-physician relationship before initiating a dating, romantic, or sexual relationship with a patient. (AMA Code of Medical Ethics, Opinion 8.14)  The AMA holds that sexual contact that occurs while a patient-physician relationship exists is sexual misconduct.  One should consider that the patient-physician relationship might still exist for a long period after the doctor stops seeing the patient.

    Former patients: Sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous patient-physician relationship.  Sexual or romantic relationships with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship.  (AMA Code of Medical Ethics, Opinion 8.14)  The AMA stipulates that a former patient may still be influenced by the previous relationship and may not be able to function in an equal, consenting adult manner.  Also the physician should not use his or her position to gain special knowledge or influence even when the person in question is technically a “former” patient.

    TMA Board of Councilors Opinion 

    Sexual contact with

    • Current patient
    • Former patients
    • Key third parties  

    The TMA Board of Councilors has issued an opinion on sexual misconduct.  The opinion states that sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct and is unethical.  Sexual or romantic relationships with current or former patients or key third parties are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the professional relationship.  Key third parties include, but are not limited to, spouses or partners, parents, guardians, or proxies of patients.

    Legal Consequences

    • Administrative law – Texas Medical Board
    • Civil law – Professional liability
    • Criminal law – Sexual assault

    Administrative Law

    • Disciplinary action by Texas Medical Board
    • Most common outcome is loss of license  

    The TMB may take disciplinary action against a physician if he or she fails to practice medicine in an acceptable professional manner consistent with public health and welfare (VTCA Occupations Code §164.051(6)) (2004).

    A physician commits a prohibited practice if he or she commits unprofessional or dishonorable conduct that is likely to deceive, defraud or injure the public (VTCA Occupations Code §164.052(a)(5) (2004).

    Sexual misconduct by physicians in regard to contacts with patients may be the basis for discipline under §164.052-164.053 of the Occupations Code (2004).  Such sexual misconduct includes, but is not limited to, the following:

    • Physical contact or bodily movement intended to express or arouse erotic interest
    • Relationship between a patient and physician where sexual behavior occurs
    • Sexual behavior that occurs within the context of a professional patient-physician relationship
    • Behaviors that are sexually demeaning or demonstrate a lack of respect for the patient’s privacy
    • Inappropriate touching
    • Patient-physician sex  

    Civil Law

    Sexual exploitation by physicians in the scope of practicing medicine may be the basis for a civil lawsuit and subject the physician to tort liability.

    Vernon’s Texas Codes Annotated Civil Practice & Remedies Code §81.0001 et seq  (1999)

    According to the Texas Civil Practice and Remedies Code §81.002, “a mental health services provider is liable to a patient or former patient of the mental health services provider for damages for sexual exploitation if the patient or former patient suffers, directly or indirectly, a physical, mental, or emotional injury caused by, resulting from, or arising out of:

    1. Sexual contact between the patient or former patient and the mental health services provider;
    2. Sexual exploitation of the patient or former patient by the mental health services provider; or
    3. Therapeutic deception of the patient or former patient by the mental health services provider.”

    This statute, which applies to all physicians, ties back into the previous table regarding grounds for disciplinary action by the TMB for an act that violates the laws of the state when connected with the physician’s practice of medicine.

    Criminal Law

    Sexual assault by a mental health services provider or a health care services provider is punishable under the Penal Code as a felony of the second degree.

    Vernon’s Texas Codes Annotated Penal Code §22.011(f) (Vernon Supp. 2006)

    Sexual Harassment

    • Any unwanted or repeated
      • Verbal or physical advances
      • Derogatory statement or sexually explicit remarks
      • Sexually discriminatory comments
    • Recipient
      • Offended or humiliated
      • Job performance suffers

    Sexual harassment falls under this same principle of maintaining boundaries.  Physical advances are not required to determine sexual harassment.  It may be present if there are verbal advances, derogatory or sexually explicit remarks, and if the recipient is offended or humiliated and his or her performance suffers as a result.

    According to the U.S. Equal Employment Opportunity Commission, any unwanted and repeated verbal or physical advances, derogatory statements  or sexually explicit remarks, or sexually discriminatory comments made by someone in the workplace is sexual harassment if the recipient is offended or humiliated and job performance suffers as a result (Gabbard 1995).

    Supervisor and Trainees

    Sexual harassment between medical supervisors and trainees is unethical:

    • Inherent inequalities in the status and power
    • Even when consensual, it is not acceptable
    • Supervisory role should be eliminated if parties wish to pursue their relationship

    AMA Code of Medical Ethics, Opinion 3.08

    The AMA further stipulates that sexual harassment between supervisors and trainees is unethical.  Such relationships would include residents and interns or attending physicians and residents or fellows.  Sexual harassment may be defined as sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) such conduct interferes with an individual’s work or environment or (2) accepting or rejecting such conduct affects or may be perceived to affect employment decisions or academic evaluations concerning the individual.

    The supervising party must take personal responsibility to maintain the boundary because of the inherent inequality of status and power.  Even when both parties are consensual, such a relationship is unethical.

    If parties wish to pursue a personal relationship when a supervisor to trainee hierarchy exists, such a hierarchy should be eliminated before beginning the relationship.

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