Sexual Misconduct Allegations: Avoiding the Risk

Allegations of sexual misconduct among healthcare practitioners have featured prominently in the news in recent years. As a result, healthcare organizations have become much more vigilant in implementing policies to avoid sexual misconduct allegations. These allegations may be brought against healthcare practitioners as a professional liability claim, as a complaint filed with the state licensing board, or as part of a criminal action. Even an unfounded allegation can have a devastating emotional, personal, and professional impact on practitioners and place them at greater risk for error and patient harm.

Sexual misconduct consists of many different behaviors on a continuum of escalating severity. These behaviors may occur in person, by telephone or text, or via the internet. Sexual misconduct may begin with grooming behavior that includes gift giving, personal information sharing, or other acts designed to gain the patient’s trust. The behavior may escalate in severity to include sexually inappropriate language and physical contact. Other examples include performing intimate examinations without gloves and performing unnecessary intimate exams. Regardless of the specific behavior, sexual misconduct is always a breach of trust and an ethical violation.

Fortunately, sexual misconduct allegations are infrequent. A recent Public Citizen analysis of data maintained by the National Practitioner Data Bank revealed that from 2003 to 2015, 1,354 physicians in the U.S. faced reportable sanctions or malpractice payments due to sexual misconduct. An analysis of Coverys closed claims from 2016 to 2020 revealed 67 sexual misconduct claims. The following specialties represented the greatest percentage of claims: general medicine (64%), family practice (6%), and gynecology (4%). General medicine accounted for 100% of the total indemnity paid for sexual misconduct claims over the same period. The majority (79%) of sexual misconduct claims occurred in the office setting.

Risk Recommendations

While no practitioner is immune to a sexual misconduct allegation, the risk of exposure can be minimized by implementing the following risk management strategies:

• Use chaperones. Failure to use a chaperone during certain situations, such as when sensitive exams are performed, disrobement is required, or sedation is used, may create misunderstandings about the reason for an exam or the manner in which it was performed. A chaperone’s presence reassures patients of the professional character of the exam and provides a witness to support a practitioner’s actions should a misunderstanding or false allegation arise. Implement a policy that requires a chaperone for all sensitive or intimate exams (breast, rectal, and genital) regardless of the sex/gender of the person performing the exam or the sex/gender of the patient. Apply the chaperone policy to inpatient and outpatient settings.
• Consider the needs of minor patients. Always perform the physical examination of infants, toddlers, and children in the presence of a parent or guardian. If a parent or guardian is unavailable, a chaperone should be present. If the patient is a young adult and the examination is sensitive, a chaperone is recommended. Family members or friends should not be used as chaperones unless specifically requested; even then, an additional chaperone who is not a relative or friend should be present during the exam.
• Educate the patient. Patients should never be surprised by an exam. Prior to performing an exam, especially one that is intimate or sensitive, explain to the patient why the exam is needed and what it will entail.
• Document properly. Base the performance of sensitive or intimate exams on direct clinical indications. Be sure to document in the medical record the clinical indication for the exam, the education provided to the patient about the exam, and the identity of the chaperone present for the exam. When a patient refuses a chaperone, document the patient’s refusal, and defer the exam when necessary.
• Maintain boundaries. Practitioner-patient relationships function optimally when professional boundaries are observed. Maintain professional boundaries by:
  • Not socializing with patients outside of a professional healthcare setting.
  • Not seeing patients alone after hours in a healthcare setting.
  • Always using caution when communicating with patients over social media. Consider separating personal and professional presence and content online.
  • Never engaging in sexual relations with a patient.
• Educate staff. All clinical personnel should be educated about the power imbalance between patients and practitioners and should understand professional boundaries. Staff should be familiar with and understand institutional policies regarding sexual misconduct, risk factors for sexual misconduct, and procedures for reporting misconduct.
• Know the law. State law provides specific guidance regarding reporting obligations related to sexual misconduct allegations. Ensure that you are familiar with those obligations and that they are reflected in your policies and procedures. Consult with legal counsel if necessary.
• Ensure adequate insurance coverage. Despite the implementation of best practices, sexual misconduct allegations can occur. These allegations can be expensive to defend even if they later prove to be untrue. Consult your insurance agent or broker to ensure your insurance portfolio includes adequate coverage for costs related to defense against allegations of sexual abuse or misconduct.

Dealing with a sexual misconduct allegation – even an unfounded one – can be a life-altering event. Implementation of proactive risk management strategies helps to avoid sexual misconduct allegations before they occur.