Risk Management: Appropriate Behavior or Sexual Misconduct?
By: KENT G. HARBISON
September 1994 (As seen in Minnesota Physician)
Each year the Minnesota Board of Medical Practice receives an average of 100 complaints from patients claiming that physicians have engaged in misconduct of a sexual nature. The majority of these complaints, however, arise from misunderstandings regarding 'boundaries' and miscommunications between physicians and patients. Very few of the complaints involve so-called predatory behavior. This fact served as the starting point for a series of seminars conducted by the Minnesota Board of Medical Practice throughout the state in October and November of 1993.
Even though most of the complaints pertain to behavior that is intended by physicians to be perfectly appropriate, allegations of sexual impropriety can be among the most damaging allegations made against a physician. They are, at a minimum, very embarrassing and may ultimately pose a threat to a physician's license and career. The fact that the conduct in question often occurs outside the presence of any witnesses other than the physician and the patient, makes the problem potentially more difficult to defend.
Realizing that many of the complaints can be avoided by better communications between the physician and the patient and by educating physicians to be more sensitive to 'boundaries' issues, the Board of Medical Practice devoted its seminars to these twin objectives at a recent seminar. The following is a summary of some of the key points stressed by the seminar speakers:
Physicians need to remember that they are, in the eyes of most patients, the persons with the control and power. It is much easier than physicians sometimes realize for them to manipulate the actions and emotions of patients.
Sometimes a consequence of this condition is that a female patient may be uncomfortable or disturbed about a particular method or comment from a male physician but also uneasy about questioning a physician during the course of an examination. Therefore, if a patient has misunderstood a physician's comments or has questions about the appropriateness of a physician's touch during an examination, her confusion could turn to anger and a formal complaint afterwards.
By the same token, physicians also need to be aware of a patient who may intentionally or even unintentionally lead a physician into conversations or conduct during examinations that may be innocent in one sense but could be seen as inappropriate from another perspective after the fact. For example, it is almost never appropriate for a physician to include any information about his marital status, family situation, and other personal information during the course of a physician - patient conversation.
Similarly, a physician should never engage in conversations including the same type of information regarding the patient unless it is clearly related to a medical assessment, diagnosis or treatment plan. Thus, it is acceptable to ask a female patient about her sexual history only in the context of appropriate examinations or medical assessments, but the physician must make it clear to the patient why such information is pertinent (e.g. the AIDS virus, other sexually transmitted diseases, issues related to pregnancy, etc.)
Whenever a male physician is performing a breast or pelvic examination of a female patient, it is always advisable to have a female nurse or other medical professional present during the examination. Some physicians and clinics may see this precaution as an unnecessary additional expense for a limited staff, but in the long run this procedure is probably the safest and the most cost effective.
It is seldom appropriate for a male physical to ask a female patient to undress in his presence. Instead, he should request the patient to undress in a closed room prior to his entry. Furthermore, the physician should always knock on the examination room door and announce his entry beforehand.
It is almost never appropriate for a physician to examine a female patient without first providing her a gown or some other covering. A physician should not conduct a breast or pelvic examination without first explaining to the patient what the physician intends to do and why it is necessary. The Medical Board receives many complaints from patients who simply do not understand why a physician has conducted such examinations in connection with medical issues that, in the patient's viewpoint, seem completely unrelated to any actual medical need.
As long as the conversations between the physician and patient relate to clearly understood medical issues, the physician ordinarily need not worry about a patient's misunderstanding his or her intentions. It is important. However, for the physician to remember the perspective of the non-physician patient, particularly when making comments or asking questions about body parts, sexual histories, family issues, etc. In fact, many patient complaints of all kinds can be avoided easily if a physician simply takes the time to be polite, diplomatic and clear with respect to all patient communications. Even those patients who might ordinarily be inclined to file a complaint with the Medical Board regarding a particular physician's conduct are less likely to do so if the patient believes that he or she was treated with respect and empathy by the physician.
It is, of course, never appropriate for a physician to engage in sexual relations with a patient. The Medical Board interprets this statutory prohibition to include sexual relations that may have begun before or after the physician - patient relationship began and ended.
The foregoing list is an outline of only some of the most significant guidelines recommended by the Board of Medical Practice for those physicians whose practices are likely to put them in situations susceptible to misunderstandings and allegations of a sexual nature. These guidelines are important for several reasons. First, the Medical Board by statute has been charged by the legislature to impose discipline on any physician who has engaged in conduct with a patient that is "sexual or may reasonably be interpreted by the patient as sexual, or in any verbal behavior which is seductive or sexually demeaning to a patient." In other words, when evaluating this type of complaint against a physician, the Board is expected to take the perspective of the patient's reasonable interpretation or understanding of the physician's behavior or comments.
Second, all allegations of sexual improprieties filed with the Board must be referred also to the Minnesota Attorney General's office for further evaluation. Finally, complaints of a sexual nature often entail the risk that they may be referred to a county attorney for possible criminal investigation and prosecution. Any of these options obviously represents unwanted and usually unnecessary risk to a physician's reputation, license and career.