MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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Is Sexual Misconduct Medical Malpractice?

Patients have to have a lot of trust when they open up to a doctor. You may tell your doctor things you would never even tell your closest friends or family members. During physical exams and evaluations, your doctor may see, touch, and probe you in ways that you would only allow a medical professional. Being open is part of a healthy doctor-patient relationship. Unfortunately, some medical professionals take advantage of their position to harass, abuse, or assault patients in their care.  

Sexual misconduct is a clear breach of medical standards of care. A breach of care between a doctor and patient that causes harm can be medical malpractice. However, sexual abuse involves more than just making a medical mistake. Sexual misconduct is intentional and not accidental. A victim of sexual misconduct by a doctor can file a medical malpractice claim to hold the doctor accountable and recover compensation for the harm caused. 

If you have any questions about a malpractice claim involving sexual misconduct, talk to an experienced medical malpractice team. Contact our office today online or by phone at 800-529-6162.  

Medical Professional Sexual Misconduct 

According to the Federation of State Medical Boards (FSMB), sexual misconduct in a medical setting is divided into “sexual impropriety” and “sexual violation.” 

Sexual impropriety includes, “behavior, gestures, or expressions that are seductive, sexually suggestive, disrespectful of patient privacy, or sexually demeaning to a patient.” Examples of sexual impropriety include: 

  • Deliberately watching a patient undress or failing to respect a patient’s privacy 
  • Examination of the genitals without the use of gloves
  • Making inappropriate sexual comments about the patient’s body, sexual orientation, or sexual performance
  • Using the doctor-patient relationship to solicit a romantic relationship
  • Requesting sexual details when not related to the medical examination

Sexual violation includes, “physical sexual contact between a licensee and patient, whether or not initiated by the patient, and engaging in any conduct with a patient that is sexual or may be reasonably interpreted as sexual.” Examples of sexual violation include: 

  • Sexual intercourse
  • Oral to genital contact
  • Kissing in a sexual manner
  • Touching the breasts or genitals for any purpose other than medical examination or treatment
  • Offering drugs or services in exchange for sexual favors

The nature of the physician-patient relationship requires trust and professionalism. More than 2,500 years ago, the Greeks developed the Hippocratic Oath, to institutionalize the standards of medical care and responsibilities of doctors in their important role. Part of the oath takes into account the vulnerability of patients and duty of doctors to remain respectful and professional, where it reads: 

“Whatsoever house I enter, there will I go for the benefit of the sick, refraining from all wrongdoing or corruption, and especially from any seduction, of male or female, of bond free.”

Even if a doctor considers a sexual relationship with a patient to be consensual, it may still be a violation of the doctor’s professional and ethical duties. In many cases, what a doctor considers “consensual” is not viewed in the same way by the patient, and can cause serious harm. 

How Is Sexual Misconduct Malpractice?

Sexual misconduct by a doctor is wrong and illegal but is it considered medical malpractice? In many cases, the answer is yes. Sexual misconduct by a doctor that causes any kind of harm, including emotional trauma, can be considered medical malpractice. 

To prove medical malpractice, the injury victim has to prove a number of elements. The elements of a medical malpractice claim include: 

  • Duty of care
  • Breach of duty
  • Causation
  • Harm

In a professional doctor-patient relationship, the doctor owes the patient a duty of care to perform as a reasonable doctor would under similar circumstances. If the doctor deviates from the acceptable medical standards, it may be a breach of their duty of care. Any sexual violation or sexual impropriety is a deviation from the medical standards of care. 

If the doctor’s sexual misconduct causes injury or harm to a patient, then the doctor may have committed medical malpractice. Injury or harm is not limited to physical injuries. Injuries from sexual misconduct could include emotional harm or mental distress. The psychological harm caused by sexual misconduct can be extensive, including: 

Sexual misconduct can also increase the risk of long-term physical injury. For example, a woman who was sexually assaulted as a teenager may not want to go for regular physical exams in their older years, including avoiding annual mammograms or breast examinations to check for possible signs of cancer. This could delay diagnosis of breast cancer, which could increase the risk of an early death all because a doctor violated the patient at an early age, sewing distrust in the medical profession. 

Reports on Sexual Misconduct By Doctors

Most people would expect sexual misconduct by medical professionals to be rare but it may happen more often than you may realize. One of the problems with trying to understand the scope of the problem is because sexual misconduct often goes unreported. 

According to one study, fewer than 1 in 10 victims report patient-doctor sexual violations. Reasons for failing to report the violations include shame, fear of not being believed, feeling complicit, or being unclear whether abuse actually occurred. A lot of sexual abuse may never be reported because the victim is not in a strong position to report the violation, including: 

  • Child victims of molestation by a doctor
  • Sexual abuse of mentally ill or cognitively impaired patients
  • Sexual abuse of a patient under anesthesia
  • Exchanging prescription drugs with an addicted patient

Even after doctors have been reported for suspected sexual abuse, they often continue practicing. A report in the Atlanta Journal-Constitution found medical boards often give sexual misconduct offenders a second chance (or 3rd or 4th chance), allowing doctors to continue practicing. Some of these violators would have ended up as sex offenders if they were not doctors.  

In a 2019 report, the Los Angeles Times analyzed California medical board data and found that since the fall of 2017, there was a 62% increase in complaints against physicians for sexual misconduct. In 2018, the California medical board received more than 11,000 complaints against physicians. Yet, from mid-2017 to 2019, only 23 California physicians have lost their medical licenses because of sexual misconduct. Often, the doctor’s license was only taken away after criminal charges were filed.

What Is Inappropriate in a Medical Setting?

The Rape, Abuse & Incest National Network (RAINN) is an anti-sexual violence organization that provides resources for victims of sexual violence, including information about sexual abuse by medical professionals. According to RAINN, the following are not okay for a medical professional during a private exam: 

  • Refuse to answer your questions or tell you to be quiet.
  • Examine private parts without gloves.
  • Refuse to tell you what they are doing or why.
  • Refuse to allow you to have another person in the room with you.
  • Insist that you undress parts of your body they are not examining.
  • Ask you questions about your sexual activity that make you uncomfortable.

If you feel uncomfortable at any time during a medical exam, you have the right to stop the exam immediately. 

Types of Sexual Misconduct in a Medical Setting

Sexual misconduct can occur in many types of professional settings, from a gynecological exam to a dental check-up. Medical sexual misconduct can happen in any situation where a doctor abuses their position of authority to take advantage of a patient, to harass, abuse, or assault the patient. Some types of sexual misconduct that could occur include: 

  • Dentist sexual misconduct
  • Chiropractic sexual misconduct
  • Pediatric child sexual abuse
  • Sports medicine sexual misconduct
  • Anesthesia sexual abuse
  • Cosmetic surgery sexual misconduct
  • Prescription drug sexual misconduct
  • Nursing home sexual abuse

Young Victims of Medical Sexual Misconduct

Some of the most outrageous examples of sexual misconduct under the guise of medical care involves sports medicine and medical care for young people. Adolescents, teenagers, and even young adults can be placed in difficult situations where they do not know what the boundaries between a doctor and patient are supposed to be. Young people often trust their parents, educators, and institutions to protect them. Instead, these institutions often ignore the signs of abuse and even cover up any allegations of abuse. 

University of Southern California Campus Doctor Abuse 

George Tyndall was a gynecologist on the campus of the University of Southern California (USC) for almost 30 years. As a full-time campus doctor, Tyndall saw thousands of young female patients who went to the university’s clinics for medical care. Since the allegations of sexual assault surfaced, USC has agreed to a $1.1 billion settlement for about 17,000 former patients of Tyndall.  

USA Gymnastics Sex Abuse

Larry Nassar was an osteopathic physician who was the team doctor for the United States women’s national gymnastics team for 18 years. Over that time, he was alleged to have repeatedly sexually assaulted more than 250 girls and women. Nassar later plead guilty to 7 counts of sexual assault of a minor and 3 counts of sexual assault, in addition to child pornography charges. Some gymnasts complained about Nassar’s conduct as far back as the 1990s but USA gymnastics did not take action against him until 2015. 

Is the Hospital Liable for a Doctor’s Sexual Misconduct?

Victims of a doctor’s sexual abuse may focus on the doctor who committed the terrible acts. However, there may be systematic problems that allowed an abusive doctor to continue to practice, putting more and more patients at risk of suffering sexual assault. In these cases, the hospitals should be held accountable for their contributory action or inaction. 

Under the legal doctrine of “respondeat superior,” an employer is generally liable for the negligence of the employees. However, vicarious liability is generally limited to negligent acts that occurred while the employee was acting within the scope of their duties. This may not include intentional acts of assault or abuse, which are not within the scope of employment. However, the hospital may be directly liable in other ways. 

Employers may have notice that a doctor is abusive, inappropriate, or otherwise may be involved in sexual misconduct. An employer does not have to have proof of the doctor’s misconduct to be liable. If the employer was reasonably aware of a problem or should have been reasonably aware of possible misconduct, hiring or retaining a problem doctor could leave the hospital liable for harm. 

Reporting Medical Sexual Abuse 

If you believe you have been a victim of sexual abuse by a doctor, nurse, or other medical professional, you can report the abuse to law enforcement, the hospital or facility, and the state medical licensing board. Sexual abuse by a doctor is unethical and could be medical malpractice but it is a crime and should be punished. 

Even if the doctor is criminally charged and prosecuted, it may not erase the pain and damage done to you and your family. While no amount of money can erase the harm done by an abusive doctor, a medical malpractice lawsuit can make sure the doctor doesn’t just get away with it. A malpractice claim can also help you recover damages to compensate you for your injuries and losses. 

Another important part of filing a sexual misconduct medical malpractice claim is that it can make the hospital and medical community take action. A lot of medical abuse goes on because hospitals do not want to get rid of profitable doctors and because other doctors don’t want to speak out against other doctors for fear of reprisals. However, a significant medical malpractice award may be enough to motivate a hospital to take action against doctors with a known or suspected history of abuse or inappropriate behavior. This could save other patients from suffering similar abuse in the future. 

Filing a Sexual Misconduct Malpractice Claim

If you are not sure where to turn next, you can contact an experienced medical malpractice law firm to understand your options. You may be able to recover compensation for medical bills, counseling, emotional harm, pain and suffering, and harm to your family relationship. Experienced medical malpractice trial attorneys can review your case, get an expert review, and help you understand your options after medical misconduct abuse. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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