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State Medical Board Calls For More Stringent Guidelines to Handle Physician Sexual Misconduct

By Rheingold Giuffra Ruffo Plotkin & Hellman LLP

The Federation of State Medical Boards (FSMB) has conducted a review of how individual state medical boards address allegations of physician sexual abuse of patients and has made recommendations to improve oversight and disciplinary measures in these cases.

In 2018, the National Academies of Science, Engineering, and Medicine identified sexual harassment as an important problem in scientific communities and medicine, finding that greater than 50% of women faculty and staff and 20% to 50% of women students reportedly have encountered or experienced sexually harassing conduct in academia.  Data from state medical boards indicate that 251 disciplinary actions were taken against physicians in 2019 for “sexual misconduct” violations. 

Power Imbalance Enables Abusers

The FSMB acknowledges the inherent imbalance of power between a physician and patient and interprets this inequity as a potential seedbed for sexual abuse and other unwanted or illegal behaviors.  The ability for a physician to practice his craft successfully depends in large part on the level of trust the patient entrusts to the physician.  Once this trust is broken, it is usually irretrievable with traumatic consequences for both the patient and the physician.

FSMB writes in part, ” The medical profession must promote a culture in which sexual misconduct in any form is not tolerated. Such behavior undermines professional attainment, and when that behavior is tolerated, overtly or tacitly, it reduces the likelihood of bystander reporting and erodes professional culture in a patient-centered system. Sustaining this effort across the entire profession and in every clinical setting, both inpatient and outpatient will be critical to maintaining the public’s trust.”

State Boards Called on to Take Action

They recommend that “State boards need to take swift action, especially when the continued practice of medicine by a licensee constitutes a danger to the public. When that risk is perceived as sufficiently high, as with sexual assault, actions should include summary (immediate) suspension or revocation of a physician’s medical license and notification of law enforcement, both while an investigation is ongoing and as part of a final adjudication.

With less egregious forms of sexual harassment (such as inappropriate online communication or verbal harassment), a board may deem that a licensee has the potential to reenter practice without significant risk of reoffending. The board may require that the physician complete education about appropriate professional boundaries or other relevant subjects and behavioral treatment, including assessment of the licensee’s understanding of their misconduct, vulnerabilities, and the circumstances that led to their infraction. If a physician is permitted to return to practice following remediation steps, close monitoring may still be advised.

Monitoring Physicians After an Offense

When that happens, in place of the physician’s staff member serving as a “chaperone” during patient encounters (a practice that has recently come under scrutiny because of concerns about conflicts of interest and ineffectiveness), the FSMB proposes practice monitors. These are individuals approved by and responsible to the board and expected to accompany monitored physicians during patient encounters.

Monitors should have formal training by a board or relevant organization approved by the board, or have sufficient clinical understanding or knowledge of medicine, to discern what is and is not appropriate in clinical encounters. The training should include information about how and when to safely intervene by interrupting and terminating clinical encounters identified as unsafe, and the authority to report inappropriate behavior to the board. The monitored physician should be required to explain (orally, in writing, or both) to a patient about the role of the monitor before the clinical encounter. Costs associated with the training and compensation of monitors should be borne by the physician seeking to remain in practice.

Those professions which rely on public trust and have a fiduciary duty to the public must be held to the highest standards of conduct.  Civil society requires such a commitment and can’t tolerate anything short of this. 

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