Legal risks rise when clinicians date patients

It's ammunition for plaintiff's counsel

A few months after performing breast augmentation on a patient, a California surgeon had a consensual three-month relationship with her. Darshan Shah, MD, neglected to document in the patient' chart that he had severed the doctor/patient relationship and neglected to send her a dismissal letter by certified mail, according to medical board records. The Medical Board of California placed Shah on probation for five years and said he must have a third party chaperone when examining female patients. He also is restricted from supervising physician assistants.

Shah's attorney says the patient shared her story more than three years after her relationship with Shah ended. The attorney also said the woman is married to a plastic surgeon who Shah considers to be a competitor.

Developing personal relationships with patients involves ethical, as well as possible legal implications, says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney. "Some ethicists have questioned whether it is wise to merge one's social and professional lives," he adds.

The best practice is to consider patients and former patients to be off limits for personal relationships, says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin in Milwaukee. Derse notes that several medical examining and licensing boards specifically state that having an inappropriate relationship with a patient violates their codes. "In some of these, a patient is defined as up until two years after medical care was provided," he says. "There is a large potential danger area."

While these codes are generally meant to apply to ongoing doctor-patient relationships, as in psychiatry, says Derse, a savvy lawyer could use this information in a malpractice lawsuit, as evidence that a physician was acting inappropriately.

Jennifer Lawter, RN, JD, vice president of risk management at EPMG in Ann Arbor, MI, says that if a patient decides, at any point in time, to bring an action for medical malpractice, the nurse or physician named in the lawsuit would be at a significant disadvantage if a personal relationship existed. "Past mates make vengeful plaintiffs," she says. "If you're going to get romantically involved with a patient, ideally it should be later in time, after treatment has terminated."

Ann Robinson, MSN, RN, CEN, LNC, principle of Robinson Consulting, a Cambridge, MD-based legal-nurse consulting company, says that when you become involved with a patient, "you have crossed the line of an agreement. It's muddy water, at the very least." If a patient sued the facility, and a jury learned that a nurse or physician had dated that patient, she says, "it would be very difficult for the [facility] to defend itself. Its credibility would be undermined." The social relationship with the patient "would be ammunition for the plaintiff's counsel to prove the hospital was not looking out for the best interest of the patient," says Robinson.

Evidence against physicians

If a physician dates a patient, says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, "the first place where you'd get into trouble is not necessarily legally, but with the state board of medicine."

Most complaints against physicians alleging an improper relationship with a patient ultimately end up at the state board of medicine or the hospital ethics board, which often reports to the hospital executive board, notes Burton. If a patient complains to the medical examining board, says Derse, this complaint might be used as evidence against the physician in a subsequent malpractice lawsuit.

If their behavior is sanctioned, warns Burton, this will be on their record and most likely would get reported out to the National Practitioner Data Bank. "These things are increasingly being investigated aggressively and reported out to boards, which have very little tolerance for these kinds of activities," Burton says. "And if the board investigates it, you'd better get a lawyer because your whole career is on the line."

Most medical and nursing societies have guidelines and/or rules that they enforce when it comes to moral and ethical obligations of their members, Lawter says. "Physicians and nurses need to be concerned about these expectations, as well as the various state-licensing organizations, so that they do not run afoul of the requirements," she says. (To see the American Nurses Association's code of ethics for nurses that addresses professional boundaries in section 2.4, go to http://www.nursingworld.org/MainMenuCategories/EthicsStandards/CodeofEthicsforNurses.aspx.)

Most insurance coverage for medical-malpractice litigation doesn't typically cover licensing investigations, which can be costly, adds Lawter. "You may find yourself with licensing-violation allegations or perhaps be 'kicked out' of professional societies," she says. "While this may not be as scary as a medical-malpractice lawsuit at first glance, it can lead to more problems than you may be prepared for. These issues will nearly always show up in any future litigation."

The best approach is to have a policy that discourages physicians dating patients, says Stephen Trosty, JD, MHA, CPHRM, ARM, president of Risk Management Consulting Corp., in Haslett, MI. "If that type of relationship occurs, the patient should be discharged," Trosty says.

He points out that in a physical relationship, there "could be a fine line between doing something you consider part of relationship, as opposed to something that crosses that line, from a clinical perspective."