State license boards warn doctors of consequences for sexual misbehavior

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Patrick Malone & Associates P.C. | DC Injury Lawyers

Although state licensing boards have taken more than their fair share of criticism for failing to discipline bad doctors as quickly and severely as circumstances merit, regulators appear to be trying to get ahead of a problem that especially plagues women patients and women health staff: doctors’ sexual misbehavior.

This inappropriate conduct can encompass a range of bad acts — all of which are unacceptable and should result in serious consequences for offenders, a viewpoint in the Journal of the American Medical Association argues. The article describes a review and consensus reached by the Federation of State Medical Boards, representing the 71 state medical and osteopathic regulatory boards — commonly referred to as state medical boards — in the United States, its territories, and the District of Columbia.

The authors wrote this:

“The relationship between a patient and a physician is inherently imbalanced. Patients enter the relationship from a position of vulnerability — lacking the knowledge, skills, and training possessed by physicians — as they share personal information and allow physical examination. This results in a power dynamic in which trust is necessary for care to be delivered within legal and ethical bounds. When sexual misconduct is committed by a physician, enduring and traumatic results may follow that affect patients, families, the medical profession, and the public. State boards need to take swift action, especially when the continued practice of medicine by a licensee constitutes a danger to the public. When that risk is perceived as sufficiently high, as with sexual assault, actions should include summary (immediate) suspension or revocation of a physician’s medical license and notification of law enforcement, both while an investigation is ongoing and as part of a final adjudication.”

Doctors should be forced to undergo training and counseling and be monitored — with rigor — if regulators find they have engaged in “less egregious forms of sexual harassment (such as inappropriate online communication or verbal harassment),” the authors wrote.

They called on their colleagues to assure women — patients and health practitioners — that regulators are listening to and acting appropriately to complaints about doctors’ sexual misbehavior by making clear and public disciplinary actions boards take. These rebukes too often get hidden because regulators’ disclosures of them are hard to find on websites or in official notices. Regulators also hide the gravity of doctors’ offenses, describing them vaguely as “unprofessional” or “unbecoming” or “unethical” conduct.

The authors caution doctors that they can and will face penalties if they know about colleagues’ unseemly behavior and fail to report it, writing:

“Members of the medical profession must acknowledge their ethical ‘duty to report.’ In some states, a failure by a physician to report another licensee’s actual or suspected sexual misconduct may subject them to disciplinary action for unprofessional conduct, such as licensure suspension, letter of reprimand, or monetary fines. In some states, those fines can range from $10 000 to $100 000 and have extended to disciplinary actions for failure to report a colleague’s fraudulent prescribing or drug diversion. Recognition of and corrective education about unprofessional behaviors by physicians early in their medical education may lower the likelihood of later disciplinary actions. Peer-reviewed discussions of medical errors and patient harm in hospitals are usually protected from disclosure to support patient safety initiatives, but data related to sexual misconduct are fundamentally different and should not be afforded the same protections.”

While the authors and the regulators whose views they are conveying offer a ringing statement about stamping out sexual misbehavior in medicine and promoting a culture “in which sexual misconduct in any form is not tolerated,” that praiseworthy idea must be balanced with other data in the medical journal article.

It reports that, among more than 1 million licensed doctors in this country, regulators had as of the end of 2020 dealt with roughly 1,630 cases of broadly described professional issues in the year —and just 251 disciplines specifically for “sexual misconduct violations.” That is a minuscule figure, especially compared with this information also reported:

“In 2018, the National Academies of Science, Engineering, and Medicine identified sexual harassment as an important problem in scientific communities and medicine, finding that greater than 50% of women faculty and staff and 20% to 50% of women students reportedly have encountered or experienced sexually harassing conduct in academia.”

And in recent times, news stories have horrified the public, detailing how hundreds and even thousands of young people have been sexually abused by doctors at major universities in their athletic and student health programs, leading to billions of dollars in settlements.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on women, children, and youths due to sexual abuse by medical staff, including when they are in institutional care.

Sexual assault happens far too often in our country. According to the National Sexual Violence Resource Center, 1 in 4 girls and 1 in 6 boys will be sexually abused before they turn 18.

Unfortunately, these sex crimes often go unpunished by the criminal justice system. The overwhelming majority of perpetrators are never prosecuted, let alone sent to jail for their crimes. Yet there is a way to get justice: through filing a civil lawsuit against your abuser or the institution that enabled the abuse.

These types of lawsuits can be complex but are vitally important to hold those who harmed you responsible for their actions (or inactions) and to spur the institutions to better police their ranks so that future abuse is prevented. A legal claim can also provide you with the compensation that you need to heal and recover from abuse.

As tragic and tawdry cases at places like the University of Southern California, Michigan State, and other respected institutions have made clear, lawsuits get results for victims whose repeated complaints have gone unanswered — yes, by grownups, educators, regulators, law enforcement, and more.

We have much work to do to ensure that women patients and women in health care are treated properly and fairly, and that if doctors cannot treat women and men in appropriate ways, including sexually, then the MDs should be subject to due consequences.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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