Avoid baseless claims of sexual misconduct

Patients might misinterpret examination and pursue legal action

Your examination might have been completely medically appropriate, but a patient might believe otherwise and contact an attorney at the first opportunity.

Erin L. Muellenberg, JD, an attorney at Arent Fox, Los Angeles, has seen several claims involving patients misinterpreting touching and comments.

"In a recent case a physician was doing a Pap smear. As part of the exam, he properly examined the clitoris. Because this was something that she had not experienced in the past, she believed that the doctor was improperly touching her and prolonging the exam unnecessarily," she says. "The same physician also performed a rectal exam that she believed was outrageous."

Another lawsuit involved a patient with neck pain whose doctor examined her shoulders and chest area. "Because he went close to her breasts, she alleged that he was inappropriately touching her," says Muellenberg. "Always explain what you are doing. Don't assume that the patient knows what you are going to do."

A physician has a duty to treat patients respectfully and appropriately, and sexual misconduct breaches that duty, says Sharona Hoffman, JD, LLM, co-director of the Law-Medicine Center at Case Western Reserve University School of Law in Cleveland, OH. "In addition, some patients go to the police and actually initiate criminal investigation if the misconduct involves improper touching," she warns.1 Here are risk-reducing strategies:

• Maintain a professional demeanor, no matter how well you think you know the patient.

Avoid making suggestive or inappropriate remarks to patients even in a joking manner, such as commenting on the patient's attractiveness, says Hoffman. Physicians should be cautious with the last patient of the day and avoid suggesting to that patient that they meet after office hours for any social activity, says Muellenberg.

"Even if a physician believes he is helping the patient by offering a ride or anything similar, he needs to be aware that such could easily be used against him at a later time and could cost him his license," she advises.

• Have a chaperone present whenever you are examining the opposite sex.

Simply having a nurse or other clinician in the room when any intimate examination is conducted makes it far less likely that a patient will wrongly accuse a doctor, Hoffman says. If it is just the doctor and patient in the room, it is up to the jury to decide whom they want to believe, she explains.

"A witness will protect the physician more than anything else. When appropriate, have an exam performed by the same sex. The likelihood of accusation is much less," says Muellenberg. She recommends noting that the exam was done in the presence of a chaperone and recording the chaperone's initials, because it will assist the physician in recalling who was present in the event of a future question.

If a patient has a family member or friend present during the examination, this information also should be noted, adds Muellenberg. "Physicians need to realize that they are not just vulnerable during the physical examination, but at any time during the patient's presence in an exam room," she says. "If a physician is taking a history, leaving the door partially open until the examination is started may be a good prophylactic strategy."

• Never examine or interview a minor patient without an adult in the room.

"Asking a teen-age girl if she is sexually active and then having her lie down to exam her lower abdomen could lead to questions and unnecessary scrutiny," Muellenberg explains. (See related story, below, on actions physicians should take if accused.)

Reference

1. Dr. Shezad Malik Law Firm. Beaumont doctor sentenced for improperly touching two girls. Accessed at http://www.dallasfortworthinjurylawyer.com.

Sources

For more information on lawsuits alleging inappropriate behavior, contact:

  1. Sharona Hoffman, JD, LLM, Co-Director, Law-Medicine Center, Case Western Reserve University School of Law, Cleveland, OH. Phone: (216) 368-3860. Fax: (216) 368-1042. Email: sxh90@case.edu.
  2. Erin L. Muellenberg, JD, Arent Fox, Los Angeles. Phone: (213) 443-7595. Fax: (213) 629-7401. Email: muellenberg.erin@arentfox.com.

Hear rumors you were inappropriate?

Don't make matters worse wwhen facing allegations of inappropriate conduct

The vast majority of cases alleging inappropriate conduct settle, and malpractice insurers often will pay a modest settlement even for weak claims to avoid lengthy and expensive litigation proceedings, according to Sharona Hoffman, JD, LLM, co-director of the Law-Medicine Center at Case Western Reserve University School of Law in Cleveland, OH

"Publicity regarding such allegations is very embarrassing and damaging for physicians. They are often eager to cut the process short," Hoffman says. "Also, the payments are actually made by the medical malpractice insurers. They have a lot of influence on the timing and extent of settlement."

Immediately contact your insurer and obtain legal counsel if you hear rumors of allegations, recommends Erin L. Muellenberg, JD, an attorney at Arent Fox, Los Angeles. "Each accusation is very fact-specific. Any response must consider all the facts and be well-reasoned and thoughtful," she adds. Take these steps if you learn of allegations:

• Consider contacting the patient to explain that you believe firmly that you behaved appropriately and professionally, but that you are sorry if the patient was offended by anything said or done.

"There is some evidence that apologies work well and make patients less likely to sue," says Hoffman. If the patient has hired a lawyer, the claim generally will go to the insurer, and the doctor should consult a lawyer before reacting in any way, she advises. However, if the patient has merely made a phone call or written a letter or email, the doctor might want to contact the patient and have a conversation, Hoffman says.

"In all cases, however, the doctor would be wise to consult an attorney before speaking with the patient in order to avoid doing anything that could compromise his defense in case of litigation or criminal prosecution," says Hoffman.

An apology might be indicated, but careful consideration of how to proceed and what to say is where a lawyer can be of assistance, says Muellenberg. "It is automatic to vocalize a loud and immediate response. However, this may not be the physician's best interest," she says.

Many states have apology laws that prevent an apology from being entered into evidence against a physician in a civil professional liability action, notes Muellenberg. "However, this same exception may not apply if criminal charges are brought," she says.

• Do not alter the record.

"This may be perceived as an attempt to cover up guilt and certainly can be used at a later time to impeach credibility," says Muellenberg.

• If the accusation is not related to the patient's care and the physician feels compelled to make notes, he or she should call a lawyer and then write out the incident for the lawyer.

"That document will then become an attorney/client communication and be protected from discovery," Muellenberg says.