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Sexual Comments, Behavior Create Minefield in the Health Care Setting
By Melanie S. Heniff, MD, Adjunct Clinical Assistant Professor Indiana University School of Medicine, Emergency Medicine Residency, Indianapolis, Indiana; Elizabeth G. Russell, JD, Partner, Krieg DeVault LLP, Indianapolis, Indiana; Malia J. Moore, MS, University of California at Santa Cruz; Gregory P. Moore, MD, JD, Attending Physician Emergency Medicine Residency, Madigan Army Medical Center Tacoma, Washington
Interactions in the clinical setting that involve sexually related comments or behavior, personal relationships, or physical examination of private areas of a patient's body must be handled with sensitivity and good judgment to avoid potential liability. In this article, the authors will address what constitutes sexual harassment, sexual battery during a physical exam, and unacceptable relationships with patients. These cases address environments and situations that emergency department (ED) clinicians encounter regularly.
Allegations alone can kill careers
The mere allegation of sexual harassment is one that can haunt a clinician through the rest of his or her practice, and has the potential to end a career. A health care provider subjected to a sexual harassment suit could suffer significant financial, professional, and personal loss. Because physicians are considered to be in a position of authority and in possession of "deep pockets," they are at increased risk of being targeted by such accusations, whether or not there is a factual basis for the claim. Physicians are often identified as supervisors and leaders, as well, and may be held accountable if they don't stop witnessed behavior by those they supervise.
The financial and personal cost of defending a sexual harassment suit could be so excessive that an attorney will invariably advise a physician client to attempt to settle a suit, even if no harassment occurred and the lawsuit is defensible, rather than risk incurring further losses in attorney's fees. Malpractice insurance may not cover the cost of defending such an allegation, therefore personal assets could be at risk.
As with malpractice claims, it is best to do everything one can to be informed about and avoid high-risk situations to prevent becoming a defendant in a sexual harassment suit. Understanding the legal definition of sexual harassment and awareness of behaviors that may predispose you to this allegation are crucial to not being caught in this situation. Sexual harassment is a type of gender discrimination which employees are legally protected from under the federal statute Title VII of the Civil Rights Act of 1964. As defined by law, sexual harassment occurs when an employee is subject to unwelcome advances, to the extent that the employee's compensation, privileges, or employment terms and conditions are tangibly affected.
There are two types of sexual harassment that are recognized:
"Quid Pro Quo:" This is a Latin phrase meaning "something for something," which in legal usage refers to an exchange of an item or service for something else of value. In the setting of sexual harassment quid pro quo refers to, for example, a supervisor offering an employee professional advancement in return for sexual favors.
Hostile Work Environment: This situation is created when unwelcome conduct results in an intimidating or offensive work environment, and unreasonably interferes with an employee's job. The alleged behavior must be "severe or pervasive" to support the claim of a hostile work environment.
It is often challenging in court to decide exactly what crosses the line in creating a hostile work environment. This is an area that is difficult to define and is decided on a case by case basis. The following cases illustrate examples where the court has determined whether or not harassment has occurred.
Cases that the courts have labeled "severe or pervasive."
One example of a case that was determined by the court to have met the requirement of "severe or pervasive" behavior is Rorie v. UPS, in which a supervisor frequently told a plaintiff she smelled good, patted her on the back, brushed up against her, called her at home, and made comments to her concerning the size of his penis. He also told the plaintiff she looked better in her UPS uniform than any other woman.1
Another suit that the court found to demonstrate the "severe or pervasive" condition was Wilson v. Chrysler Corporation, where a female worker complained of being subjected to verbal assault and obscene cartoons. She received a lewd greeting card signed by 38 employees, including her supervisor. A co-worker placed a fake penis between his legs and yelled to her, "[L]ook what I got for you, bet you can't handle this." A male colleague repeatedly looked at the plaintiff's breasts and said, "ummm," and on one occasion touched her breast.2
In Bailey v. Runyon, a male homosexual co-worker asked the male plaintiff repeatedly for sex over a 45-month period of time, on one occasion grabbed the plaintiff's genital area, and exposed himself to the plaintiff in the men's room.3 In another case, a court allowed a male meatpacker to proceed with a harassment claim against same-sex co-workers who verbally harassed him, pinned him down, grabbed and hit him, and simulated sexual acts.4
As the latter two cases show, the victim and harasser do not have to be of the opposite sex for the claim of sexual harassment to be pursued.
Cases that the courts have labeled as not "severe or pervasive."
In some cases, the standard of severe or pervasive was not met, as in Minor v. Ivy Tech State College, when a college chancellor talked to an employee in a sexually suggestive tone, told her he had been watching her through the window, and on one occasion put his arm around her, kissed her and squeezed her, and said, "[N]ow is this sexual harassment?"5
In Cowan v. Prudential Insurance Company of America, a female insurance agent was unable to prove hostile work environment when male co-workers actions were occasional and sporadic. The men called each other crude names, discussed regular trips to a strip club, and used a picture of a provocatively dressed cheerleader in promotional materials.6
A female plaintiff alleged sexual harassment when male colleagues stared at her and her breasts, a male co-worker touched her on the arm, and a male employee told her not to wave at squad cars in front of the police station because passers by would mistake her for a prostitute. In this case, Adusumilli v. City of Chicago, the court decided this was not severe or pervasive enough to be considered sexual harassment.7
Sexually stereotyped insults, jokes, and innuendos may create a hostile work environment if there is a pattern of this language such that a "reasonable person" would find such language to interfere with an employee's ability to perform the job. The U.S. Supreme Court has recognized that some amount of flirtation or teasing is a common workplace occurrence and thus not actionable. However, the distinction between actionable and non-actionable conduct is a fine line that is safest not to walk. When verbal harassment is accompanied by unwelcome physical contact, the situation is more likely to meet an actionable standard.
So what behavior is acceptable, and what steps are too far over the line? To be safe, one suggested rule of thumb is that all workplace conduct should be measured against what would be appropriate for a Walt Disney movie, or rated "G" for general audiences.
Sexually related liability in clinical practice
Health care providers are placed in a position of trust by their patients, and professional conduct is mandatory. Deviation from this by engaging in a sexual relationship with a patient, even if the formal doctor-patient working relationship was terminated, will be viewed negatively by a jury. The following cases highlight this issue.
Sexual Involvement with Patients
In Anonymous Female v Steve Rosenthal MD, a 23-year-old woman was treated by a psychiatrist for more than two years. She claimed the psychiatrist sexually abused her by cuddling, hugging, fondling, and watching pornography. She claimed this led to emotional distress and a suicide attempt. The psychiatrist admitted the relationship existed, but argued that the patient suffered no harm. The jury awarded a $400,000 verdict.8
A 13-year-old girl was exhibiting sexually dangerous behavior with teenage boys and she was admitted to a psychiatric hospital. On the last day of admission, she engaged in sex in the bathroom with a 27-year-old employee. She revealed this to her mother two weeks later, and police were notified. The employee was arrested, convicted, and sentenced to three years in prison. The mother of the patient said that her daughter had openly stated that she intended to have sex with the employee; nevertheless, they were allowed to come in contact. The mother also claimed the male staff had prior misconduct and was not properly supervised by the hospital. The hospital claimed that this employee had an exemplary record and that the patient initiated the contact to get revenge on her mother, who forced the admission. A settlement was reached, including $900,000 for the patient and $350,000 for her mother.9
The courts have been consistent in finding that a physician or therapist who engages in sexual activity with a patient may face civil sanctions and criminal liability. Common defenses which the courts have rejected include claims that the patient consented to sex and that the practitioner's treatment was finished before sexual relations began.10 Physicians and other health care providers would be wise to never become sexually or personally involved with their patients.
Physical Exam of Private Body Areas
Besides being liable for sexual harassment in the workplace, providers can be held liable when they examine patients' personal physical areas. Cases that illustrate the issues are now presented with recommendations.
Case 1: A 31-year-old woman went to see a doctor for replacement of her intrauterine device. Her scheduled physician was unavailable, and she was seen by the defendant. The plaintiff claimed that the medical assistant left the room for a period of time and that she was molested during the procedure. The physician denied the charges and the defendant medical group claimed that a medical assistant was present throughout the examination. The plaintiff sought recovery for sexual harassment, sexual assault, sexual battery, and medical malpractice, and her husband sued for loss of consortium. It was found that the charges were fabricated and that the medical assistant was present in the room at all times. A defense verdict was returned.11
Case 2: A 34-year-old woman underwent a myomectomy to remove fibroids from her uterus. She claimed that after surgery, the anesthesiologist fondled her breasts and vagina. The plaintiff sought recovery for sexual battery, as well as negligent supervision by the hospital. The hospital was released from the case prior to trial, and the defendant denied the charges, also citing inconsistencies in the plaintiff's story. After investigation by the hospital and police, a defense verdict was returned.12
Sexual Battery During Physical Exam of Patients
One of the charges that is likely to be made when a physician exams a private area of a patient's body in an unacceptable manner is a charge of battery. This is evidenced by the cases above. Battery is unlikely to be covered under a provider's malpractice policy and opens the clinician up to extreme personal risk. A provider must be very careful to avoid committing battery in the process of a patient exam encounter.
Battery has the following legal elements: 1) It involves invasion of a person's bodily integrity without their consent; 2) Criminal actions, or even an attempt to harm, need not be present; 3) One can actually be trying to help the patient and still lose a battery suit. Intent is immaterial.
An example would be a surgeon who performs a non-emergency surgery that he or she feels is needed without first getting consent. A patient's consent can also be withdrawn at any time, without good reason, and even if sedated. If an exam is being done and the patient says "stop" or "I don't want this," the physician should immediately cease the exam.
Courts often use key phrases when rendering decisions regarding a charge of battery. Statements such as "sanctity of the person," "bodily integrity," and "personal autonomy" are used, as the Constitution protects all from invasion.
If a provider loses a case of battery, then several types of damages may be awarded. First, general damages may be given for the invasion itself. Subsequently, special damages may also be awarded. These damages compensate a patient for the expenses accrued, such as hospital bills and lost wages.
Case 3: A 41-year-old woman was involved in a serious car accident, for which she began receiving chiropractic treatment with the defendant. She was treated for three weeks with customary adjustments, massage, and exercise. After three weeks without improvement, the defendant recommended an intra-rectal coccygeal adjustment to correct a stress condition within the meninges surrounding the spine. The plaintiff claimed that she was not informed that the procedure would entail entering the rectum, and that she was not told the risks or other treatment options. She claimed that the procedure caused post-traumatic stress disorder, aggravation of pre-existing emotional instability, and personality adjustment disorder. She also claimed that the procedure was unlawful and was therefore intentional assault and rape. The defendant contended that the procedure was fully explained, as were risks and other treatment options. A defense verdict was returned.13
Recommendations for exams involving patients' private body areas
The cases just described illustrate that patients are not hesitant to bring legal action against physicians who examine private areas of the body. This may occur despite chaperones, other professionals, or family presence during the exam.
One way to avoid this litigation is to use optimal communication skills and sensitivity. Many patients are uncomfortable when a professional, often a stranger, examines them. It is important to explain the reasons for examination or procedure and the likely feelings and sensations that may be present before proceeding. Then the patient should be asked for permission. The physician's exam should not be more invasive than necessary for a given complaint. Despite the need to have a patient undressed for most thorough exams, the patient's modesty should be respected by providing adequate coverage with gowns and sheets. In addition, the body area being examined should be uncovered only long enough to permit the necessary evaluation.
Another way to avoid litigation is to ensure consent is obtained. It is not necessary to sign formal consent for the exam. Most ED "permission to treat" agreements that patients sign before care allow for exams and procedures without more specific consent. The patient's simple actions of giving permission, or assuming the required examination position, gives implied consent, as well. If an unusual procedure/ exam is done, formal consent should be considered, as in the instance of coccygeal manipulation.
A chaperone provides a direct witness to vouch for the behavior during the exam. It is optimal to have a chaperone present for every personal (breast, rectum, genital) exam, regardless of the sex of the provider and patient. Documenting the actual witness/chaperone present or having the observers themselves note their presence on nursing charts is invaluable, also, as clearly evidenced by the defense verdicts above.
1. Rorey v. UPS, 8th Cir. 1998.
2. Wilson v. Chrysler Corp., 7th Cir. 1999.
3. Bailey v. Runyon, 8th Cir. 1999, No. 99-2560.
4. Breitenfeld v. Long Prairie Packing Co., Inc., D. Minn 1999.
5. Minor v. Ivy Tech State College, 7th Cir. 1999.
6. Conan v. Prudential Insurance Company of America, 7th Cir. 1998.
7. Adusumilli v. City of Chicago, 7th Cir. 1998, No. 95C7680.
8. Anonymous Female v. Steve Rosenthal, MD, Fairfax Co. (Va) Court Case Number CL2004227207
9. Minor Psychiatric Patient v Anonymous Psychiatric Hospital. Medical Malpractice: Verdicts, Settlements, and Experts. 2008; 24:43.
10. Firestone MH. "Psychiatric patients and forensic psychiatry," in Legal Medicine, 5th Ed. St. Louis:Mosby; 2001:480-481.
11. Robyne Roberson and James Roberson v. Greater Valley Medical Group, Inc., and Martin A. Cooper, MD. Los Angeles County (CA) Superior Court, Case No. BC 148-424.
12. Michelle Hoyt v. Vivek Ullal, MD, Simi Valley Hospital, Ventura County (CA) Superior Court, Case No. SC 042521
13. Sanjuanita Altamirano (Sanjuanita Hernandez) v. Kris and Teresa Dexter (Dexter Clinic of Chiropractic), Grant County (WA) Superior Court Case No. 96-2-00085-6.