Sexual misconduct requires firm stance

Patients may misinterpret touching, comments

Sexual misconduct or harassment of patients in health care can be a major liability risk and probably happens more than you think, say a risk manager and attorney who are experienced in dealing with such issues. Concerns often go unreported until a lawsuit is filed, they say, and many health care workers don’t realize how their seemingly innocuous actions can be perceived as misconduct by patients.

Deborah S. Stephens, RN, BSN, JD, CPHRM, risk manager at Spectrum Health in Grand Rapids, MI, and Bridget Tucker Gonder, RN, BSN, JD, CPHRM, associate legal counsel for the health system, say health care workers can get into trouble when they forget that patients are not as familiar with medical procedures as they are and are not used to being touched intimately as a routine matter.

"They’re accustomed to doing procedures, even intimate procedures, and not even thinking twice about it," Gonder says. "To the clinician, it’s nothing at all, but the patient is wondering why he’s lifting her gown up."

For instance, Gonder describes a scenario that happened at Spectrum, in which a male electrocardiogram (EKG) technician entered an emergency department treatment room to perform an EKG on a woman. The man pulled down the sheet covering the woman, opened her gown, and started putting leads on her chest. The woman later complained that she felt sexually violated.

"It was probably the 50th time he had done that, that day. He just saw it as another patient and he was going through his routine," she says. "The patient had never been through this and was very much upset that a man just walked in and bared her breasts and started touching her."

Real risk for health care employers

Stephens and Gonder estimate that they have handled about 20 allegations of sexual misconduct or harassment of patients over the past 10 years, and they sense that the frequency is on the increase. While they cannot discuss individual cases at Spectrum, they note that there is significant potential employer liability from sexual misconduct.

The employer can be accused of negligence, malpractice, breach of fiduciary duty, infliction of emotional distress, assault, negligent hiring or retention, battery, and negligent supervision. And, of course, there is the risk of negative publicity if sexual misconduct is reported at your facility.

Gonder cautions risk managers not to assume that current policies and procedures are sufficient to address sexual misconduct and sexual harassment. Most health care organizations have a policy on sexual harassment, but few have policies that specifically address sexual misconduct involving caregivers and patients.

A policy on sexual misconduct should ensure a consistent approach to handling allegations that protects the patient and the accused employee, Stephens says. Much of Spectrum’s policy addresses the manner of notification, how people will be interviewed, and it stresses the importance of allowing the employees to adequately defend themselves.

While many allegations are grounded in misunderstanding or carelessness by the caregiver, there are instances of true sexual misconduct in health care settings, Stephen and Gonder stress. Risk managers must be on the alert for sexual predators and those professionals who let their own emotional needs and problems lead them into serious misbehavior.

"There is no doubt that people take advantage of the situation to prey on patients," Stephens says. "There are some who do it because they have their own problems, such as addictions, and there are some who are just predators and see an opportunity."

It also is important to know that sexual misconduct — both actual misconduct and cases of misunderstanding — is not strictly male or female, Gonder says. "We’ve had elderly males wake up and say they were sexually assaulted by a female nurse, and the investigation revealed that she was inserting a Foley catheter. We had another where the nurse was checking a groin dressing and she pulled up his gown and said, Things are looking good down there!’" she recalls. "That was misperceived by both him and his wife — maybe more so by his wife."