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Survey of Physician Behavior Regarding 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, T., et al. A National Survey of Physicians’ Behaviors regarding Sexual Contact with Patients. South Med J 89(10): 977-982, 1996)
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What constitutes sexual misconduct is not always clear.
Sexual Impropriety is “any behavior such as gestures or expressions that are sexually demeaning to a patient, or which demonstrate a lack of respect for the patient’s privacy.
Sexual Transgression is “any inappropriate touching of a patient that is of a sexual nature, short of sexual violation.”
Sexual Violation is “physician-patient sex, whether or not initiated by the patient, including, but not limited to, sexual intercourse, masturbation, genital to genital contact, oral to genital contact, oral to anal contact and genital to anal contact.”
Sexual misconduct within the context of ongoing medical treatment or within a professional relationship as long as it exists is prohibited in virtually every instance. In addition, sexual relationships with patients outside medical treatment and/or outside a professional relationship should be approached with extreme caution.
Sexual/romantic relationships with former patients are also fraught with risks. For example, the patient may terminate the medical/professional relationship in writing but not emotionally or mentally because of his/her position of vulnerability and dependence on the physician.
A sexual relationship with a patient is unethical and may lead to discipline by the TMB, as well as civil damages or criminal prosecution.
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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
(Simon, R.I. Therapist-Patient Sex. Forensic Psychiatry 22(1): 31-47, 1999)
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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.
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The Slippery Slope (cont’d)
- Physical contact
- Patient gains undue influence over physician
- Extended clinic visits
- End of day appointments
- Free care
- Extra-therapeutic contacts
- Dating
- Patient-physician sex
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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.
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What Happens When Boundaries Become Blurred?
The Sequence
Confusion …..
…..Crossings…..
…..Violations
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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 physician-patient relationship is ambiguous and lost.
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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, E-8.14)
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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.
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Physician Issues (cont'd)
American Medical Association
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, E-8.14)
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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.
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TMA Board of Councilors Opinion
Sexual contact with
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Current patients
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Former patients
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Key third parties
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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.
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Disciplinary Action
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).
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Sexual misconduct by physicians in regard to contacts with patients includes, but is not limited to, the following, and may be the basis for discipline under §§164.052-164.053 of the Occupations Code.
- 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
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. 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. Sexual misconduct by physicians clearly falls into the category of such prohibited behaviors. Further, the Medical Practice Act states that TMB “must give priority to complaints that involve sexual misconduct, quality of care, and impaired physician issues.” Notably, sexual misconduct cases result in suspension of a license more often 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.
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Civil Damages
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)
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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:
- Sexual contact between the patient or former patient and the mental health services provider;
- Sexual exploitation of the patient or former patient by the mental health services provider; or
- Therapeutic deception of the patient or former patient by the mental health services provider.”
This statute 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.
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Criminal Prosecution
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)
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Sexual assault between a mental health services provider or health care services provider and a patient is punishable under the Penal Code as a felony of the second degree.
A “mental health services provider” is defined as “an individual, licensed or unlicensed, who performs or purports to perform mental health services.
A “health care services provider” includes “a physician licensed under Subtitle B, Title 3, Occupations Code.”
By virtue of Texas Penal Code §22.011(b)(9), a mental health services provider or a health care services provider commits a sexual assault if he or she “causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor.”
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Sexual Harassment
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, G.O. and Nadelson, C. Professional Boundaries in the Physician-Patient Relationship. JAMA 273(18): 1445-1449, 1995)
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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/her performance suffers as a result.
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AMA: Medical Supervisors and Trainees
Sexual harassment between medical supervisors and trainees is unethical:
- Inherent inequalities in the status and power
- Even when consensual are not acceptable
- Supervisory role must be eliminated if parties wish to pursue their relationship
(AMA Code of Medical Ethics, E-3.08 )
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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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Last Published: 6/19/2008
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