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Legal risks significant with "seductive" ED patients
Don't put yourself in a vulnerable position
If a patient is physically violent, your ED's process may involve the use of restraints and contacting security. But the appropriate action to take may be less clear if a patient seems flirtatious, exposes him or herself intentionally, or makes sexually provocative remarks.
"Seductive" patients come in both genders and all ages, says Dwight W. Scott, Jr., an attorney with the health care division of Houston, TX-based McGlinchey Stafford. "Although seduction may imply sexual temptation on its face, in this context it refers to perceived violations of established patient/provider boundaries," he says.
Almost all ED physicians have, at one time or another, cared for a patient who confused the provider's compassion for intimacy, says Scott. "While a majority of these encounters resolve themselves without difficulty, Murphy's Law dictates that some will escalate into major problems," he says.
"Seductive" patients are often volatile, and present significant liability risks to vulnerable and inexperienced ED physicians, says Matthew Rice, MD, JD, FACEP, an ED physician with Northwest Emergency Physicians of TEAMHealth in Federal Way, WA.
As with most risk issues, prevention is the key, says Rice. "A physician should never place themselves in a vulnerable position," he says. "Establishing professional boundaries is a must in medicine. This must be learned and reinforced in any ED."
To reduce liability risks of "seductive" patients:
Never perform an exam that could be reasonably perceived as sexual by a patient without a chaperone, preferably of the patient's same sex, says Rice. In particular, breast and pelvic exams of women by male doctors and genital exams of men by female physicians should always be chaperoned, he says. "Consider leaving the exam door open if possible on every new patient during the history," adds Rice.
Chaperones should be present for such exams even if the patient and physicians are of the same sex, advises Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. "Though most people think of this scenario as the seductive female with the male doctor, it can be any combination," he says.
When seductive patient behaviors are evident, a physician must rely on colleagues or chaperones for observation of interactions to avoid possible allegations later, emphasizes Rice.
If your "antenna" says a patient is acting strangely, believe what your feelings are telling you, says Lawrence. "Just quietly excuse yourself and get a chaperone," he says. "If the patient makes unfounded accusations later, it's a lot less likely they will be believed if there was a chaperone. Then go about your business and take care of whatever problems the patient has."
Lawrence advises against calling attention to a patient's inappropriate behaviors. "I don't think it's productive to confront the patient, unless you are a psychiatrist and are going to put the patient in long-term therapy to find out why they feel this behavior is necessary," he says.
If the patient does give a false complaint, whether to your department head, hospital administration, or the police, the chart will be reviewed. "If you simply document that a chaperone was present, you've covered the bases and then statements will be taken," Lawrence says. If you have a particularly bad feeling about a patient, you might make additional notes for your own records, adds Lawrence.
Chaperones also can reduce liability risks for the hospital if the patient is creating a "hostile work environment" for ED employees, says Jill Panagos, an attorney with McGlinchey Stafford's labor & employment division. "The employer must take proper steps to eliminate the hostile work environment through reasonable remedial action," she says. Remedial action might include having additional staff members present when faced with a troublesome patient, or reassigning staff so that individuals of the same sex or who are otherwise less likely targets of the patient's sexualized behavior care for such a patient.
To provide the best protection from improper claims of professional behavior, document the incident in the patient's medical chart, explaining exactly what the patient did or said and your own response, advises Scott.
If a chaperone is present, clearly document that individual's name, along with a brief comment on the patient's specific behaviors, says Rice. For example, document, "The patient's behavior appeared to me as 'seductive' or 'unusually friendly,' so a chaperone, Nurse X, was immediately asked to enter the room, and the history and physical were completed without any unusual incident occurring."
"Documentation needs to be contemporaneous to the actual incident," says Scott. "Many seemingly harmless incidents escalate due to the provider's failure to document what actually occurred, often out of their own embarrassment of the situation. However, clinicians who fail to adequately document perceived patient misbehavior, for whatever reason, are potentially complicating the subsequent defense of their own personal conduct."
In the ED, physicians don't have the luxury of advance notice of patient encounters prior to presentation, notes Scott. "Therefore, subsequent encounters with a past seductive patient must be dealt with on an ongoing basis," he says. "Past notations within the patient's chart clearly outlining past behavior and how it was dealt with, can help the provider assess the situation and make adjustments as necessary when the patient re-presents."
Tell patients what you are doing and why you are doing it so there is no confusion about your professional action, Rice recommends. For instance, tell patients "I am checking for a hernia" in a male exam or "I am feeling for your ovary" in a pelvic exam." It is wise to list the name of a chaperone on a chart when genital or breast exams are completed," says Rice.
Seductive behavior by patients may be an indication of narcissism or borderline personality disorders, notes Rice. "If handled properly and documented properly, this can assist the ED physician in proper patient treatment and referral," he says.
Since inappropriate conduct may be a sign of an underlying psychological issue, emergency physicians must be prepared to seek specialty consults when such behavior warrants additional therapeutic intervention, says Scott.
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