EXECUTIVE SUMMARY

Most physicians reported by hospitals, medical societies, and malpractice insurers to the National Practitioner Data Bank for sexual misconduct have never been disciplined by their state medical board for that behavior, a recent study found. Ethical concerns from experts include the following:

  • The state medical board is failing to protect the public.
  • Lack of disciplinary action perpetuates the injustice that has occurred.
  • The overall integrity of medicine is compromised.

Most physicians reported by hospitals, medical societies, and malpractice insurers to the National Practitioner Data Bank (NPDB) for sexual misconduct have never been disciplined by their state medical board for that behavior, a recent study found.1

Some key findings of the study, which looked at physicians reported to the NPDB for all causes from 2003 to 2013, include the following:

  • During the study’s time frame, 1,039 physicians, or roughly 1% of all physicians, had at least one NPDB report of sexual misconduct.
  • Of this group, 76% were reported by a state medical board because they either had a disciplinary action occurring at their hospital or because they were sued.
  • The remaining 253 physicians were reported for either clinical privileges sanctions or malpractice payments related to sexual misconduct — but only 30% of them had a medical board license action in their file.

“As is true in the general population regarding the reporting of sexual misconduct, such behavior by physicians is significantly underreported to state medical boards,” says Paul Hofmann, DrPH, FACHE, president of Hofmann Healthcare Group, a Moraga, CA-based consulting firm specializing in healthcare ethics, and a former hospital CEO.

Hofmann says the ethical issue is far greater than simply the failure of state medical boards to discipline physicians for sexual misconduct. “Most often, these victims are staff members and patients, who are particularly vulnerable because they are reluctant to report inappropriate behavior, knowing the uneven power relationship puts them at a severe disadvantage,” he explains.

Julie M. Aultman, PhD, director of the Bioethics Graduate Program at Northeast Ohio Medical University in Rootstown, sees the following ethical concerns when a state medical board fails to take appropriate actions and impose necessary sanctions consistent with the severity of the misconduct:

The state medical board fails in its duties to prevent unnecessary harms and ultimately protect the public.

This includes current and future patients, healthcare professional colleagues, students, and others who are in contact with the physician. “Unfortunately, these incidents, as well as sexual boundary violations with patients, do occur and continue to go either unreported or, if reported, improperly and inconsistently investigated,” says Aultman.

State medical boards that fail to investigate reports of sexual misconduct or fail to appropriately discipline physicians perpetuate the injustice that has occurred.

By failing to discipline physicians when there is clear and convincing evidence that sexual impropriety or a violation has occurred, the state medical board’s integrity and the overall integrity of medicine is compromised.

Once the board receives a complaint, it needs to determine how much time and resources to allocate to investigating it. “Just because a complaint is brought doesn’t mean it’s true. The doctor is entitled to due process,” says John D. Banja, PhD, a medical ethicist at the Center for Ethics at Emory University in Atlanta.

It can take months, and tens of thousands of dollars, to perform a proper investigation and ultimately make a determination. The facts of such cases vary widely, with complaints ranging from off-color jokes being made to sexual assault. “The devil is in the details, and every case is different,” says Banja.

There have been notorious, well-publicized cases of multiple women reporting being sexually assaulted by a doctor who is still practicing medicine. “Those are the kind of cases that really make our blood boil when we come across them,” says Banja. “So you look at the board and say, ‘How could you have allowed this physician to continue to practice?’”

One question is whether there is enough evidence to revoke or suspend the physician’s medical license, or limit the physician’s privileges. Only 11 states require state medical boards to report cases of sexual misconduct.

“Where there is good evidence that there is a sexual predator, I think they should all be required to do that,” says Banja. Even if the victim doesn’t want to press charges, the police now have a record of the incident. Depending on the evidence, they may choose to set up a sting operation with a female police officer impersonating a patient.

“The point is we need expert strategies to either help these doctors change their behaviors, or else, to sanction their licenses in ways that stop them from preying on patients,” says Banja.

Hofmann says that hospitals are implicitly condoning the behavior if they have not done the following:

  • developed and implemented a comprehensive code of conduct and a policy pertaining to sexual harassment,
  • educated physicians, employees, and volunteers about their content,
  • monitored compliance through informal and formal assessments,
  • addressed incidents of noncompliance quickly and effectively,
  • prohibited retribution against anyone who has observed and reported, or been compromised by, sexual harassment or other forms of sexual misconduct, and
  • reviewed these documents on a regular basis and revised them when necessary.

“It is ethically imperative that board, senior management, and medical staff leaders must, by their own behavior and actions, demonstrate zero tolerance for unacceptable sexual statements and behavior by anyone, regardless of organizational status and influence,” says Hofmann. The importance of discouraging all forms of sexual misconduct should be emphasized by including this issue in the medical staff bylaws or the medical staff rules and regulations.

“Bioethicists should be outspoken, persuasive advocates to ensure hospital staff and patients are in a safe environment,” says Hofmann.

Aultman has served in the capacity as an educator for those professionals who have crossed or violated sexual and nonsexual boundaries, and whose medical licenses have been suspended through the state medical board.

“Unfortunately, oftentimes such reports at the institutional level are not thoroughly investigated, or are simply dismissed by authority figures and administration,” says Aultman. She sees a role for bioethicists as consultants for the general counsel at healthcare institutions.

“However, bioethicists who tackle these types of issues should be well-educated in both the ethical and legal issues surrounding sexual misconduct,” says Aultman. To improve this situation at the institutional level, she says, bioethicists should educate healthcare professionals and empower professionals to report.

Banja sees an ethical issue in the fact that most complaints come from patients and family members. Few come from healthcare providers or hospitals, who likely fear retaliation or bad publicity.

“I suspect that a lot of hospitals are guilty of too much leniency, and too willing to give physicians the benefit of the doubt even when the evidence is persuasive,” Banja says. He adds that hospitals need to have risk managers, legal, and mental health experts involved when addressing such cases. While bioethicists probably lack this expertise, they serve an important role as the “conscience of the hospital,” says Banja.

“Maybe the value of the bioethicist is to remind the hospital of its need to be morally courageous in the face of these incidents,” says Banja. “We are in the business of protecting all the patients who come in through our doors.”

REFERENCE

  1. AbuDagga A, Wolfe SM, Carome M, et al. Cross-sectional analysis of the 1039 U.S. physicians reported to the National Practitioner Data Bank for sexual misconduct, 2003–2013. PLoS ONE 2016; 11(2): e0147800.

SOURCES

  • Julie M. Aultman, PhD, Director, Bioethics Graduate Program, Northeast Ohio Medical University, Rootstown. Phone: (330) 325-6113. Fax: (330) 325-5911. Email: jmaultma@neomed.edu.
  • John D. Banja, PhD, Center for Ethics, Emory University, Atlanta. Phone: (404) 712-4804. Fax: (404) 727-7399. Email: jbanja@emory.edu.
  • Paul B. Hofmann, DrPH, FACHE, President, Hofmann Healthcare Group, Moraga, CA. Phone: (925) 247-9700. Email: hofmann@hofmannhealth.com.