August 2004

Romance in the workplace

by Timothy Feuling

One of the most complex and important areas of risk management for doctors of chiropractic involves sexual misconduct claims. It's made more complex by the fact that it's difficult to accurately define sexual misconduct and sometimes hard to distinguish it from a mere lack of sensitivity by the doctor.

The problem of inappropriate actions between a doctor and patient is nothing new. Even Hippocrates had to pledge: "In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill‑doing and all seduction, and especially from the pleasures of love with women or men, be they free or slaves."

However, there is no denying the recent increased incidence of sexual misconduct by health care providers.

According to a 1996 report published by Public Citizen Health Research Group, the number of doctors disciplined for sexual misconduct doubled from 1990 to 1994. Of the total disciplinary actions taken against doctors, 5.1% were for sexual abuse of patients or other sexual misconduct.

According to Thomas J. Overton, general counsel for the Colorado Chiropractic Society, writing for the Colorado Chiropractic Journal, approximately 10% of complaints filed with his state's Board of Examiners during the last two years were for sexual misconduct.

Each state has its own regulations regarding this offense, and many professions have set up "categories" of sexual misconduct, based on the seriousness of the charge. The Medical Council of New Zealand, for instance, divides sexual misconduct into three classifications:

A. Sexual impropriety. Non‑physical misconduct, such as "gestures or expressions that are sexually demeaning to a patient, or which demonstrate a lack of respect for the patient's privacy." This category includes "inappropriate comments about, or to, the patient, such as the making of sexual comments about a patient's body or underclothing, making sexualized or sexually‑demeaning comments to a patient, ridicule of a patient's sexual orientation, making comments about sexual performance during an examination or consultation (except where pertinent to professional issues of sexual function or dysfunction), requesting details of sexual history or sexual preferences not relevant to the type of consultation, any conversation regarding the sexual problems, preferences or fantasies of the doctor."

B. Sexual transgression. Inappropriate touching of a patient stopping just short of an overt sexual act. This issue may occur with unnecessary breast or genital examinations or trigger point therapy near the breast or genital areas.

C. Sexual violation.  A sexual act between patient and doctor. There is no distinction between which party initiated the contact or whether the act was consensual.

Let's begin with the most serious first ‑‑ sexual relations with a patient.

Regardless of former President Clinton's attempt to split hairs over terminology, sexual "relations" ‑‑ for risk management purposes ‑‑ refers to any sexual act between two people. With chiropractors, this rarely involves overt forcible rape. Instead, cases usually involve a situation in which the patient and doctor become romantically involved. However, courts have long ruled that the authority vested in any health care provider can exert undue emotional influence over a patient and taking advantage of that authority is unethical and unprofessional.

For that reason, most professional health care governing boards and organizations prohibit ANY sexual contact between a doctor and a patient.

In a 1992 policy paper, The College of Physicians and Surgeons of Alberta declared: "There are no circumstances, none, in which sexual activity between a patient and a doctor is acceptable. It always represents sexual abuse." That admonition is repeated by many other groups.

Yet, to say there should be no personal involvement between doctors and their patient members is unrealistic. The fact that numerous doctors have met their spouses or partners in their offices attests to the fact that romances often blossom in the workplace. However, many ‑‑ if not most ‑‑ complaints of sexual misconduct are lodged by ex‑lovers after a breakup.

To avoid these situations, it is imperative that, once it appears likely that a personal relationship may evolve, the doctor should terminate the doctor‑patient relationship prior to any dating. In doing so, the doctor should inform the patient that the professional relationship is being terminated, and document this in the patient's records. In addition, when necessary, the doctor should refer the patient to another practitioner and inform that doctor of the situation.

Even here, though, care must be taken.

According to the American Medical Association, which can serve as a guide for doctors of chiropractic, "sexual or romantic relationships between a physician and a former patient may be unduly influenced by the previous physician‑patient relationship. Sexual or romantic relationship with former patients are unethical if the physician uses or exploits trust, knowledge, emotions, or influence derived from the previous professional relationship."

Typical case: a doctor has helped a patient restore her health and she is extremely grateful, possibly even in "awe" of his knowledge and healing abilities. She may mistake appreciation for love and comply with his romantic overtures. However, if he is perceived as "playing on her emotions" of gratitude, she could late claim he took undue advantage of his position as her doctor to coerce sex from her.

Some states and Canadian provincial governing boards require a set period of time between the termination of a doctor‑patient relationship and a romantic liaison. Colorado, for instance, imposes a six‑month "waiting period." The guidelines of the College of Physicians and Surgeons of Ontario put the period at a minimum of one year.

The bottom line is that, to reduce the possibility of any complaints or malpractice lawsuits of this nature, romantic and sexual relationships of any kind must be avoided between doctors and their patients.

SOURCES: "Patient/Therapist Sexual Contact," NBC TV‑News, 1998.

"Sex in the Chiropractic Office," by Thomas J. Overton, Esq. and Dan S. Cross, Esq., Colorado Chiropractic Journal ‑ Vol.1, No.3.

The Medical Council of New Zealand "Statement on Sexual Abuse in the Doctor/Patient Relationship," June 1994.

"Doctor/Patient Sexual Involvement," The Council of the College of Physicians and Surgeons of Alberta Policy, November 1992.

(Timothy J. Feuling is president of Chiropractic Benefit Services (CBS) and a member of the Board of Directors of the World Chiropractic Alliance. He assists doctors in maximizing their practices through the proper choice of insurance and related services. Doctors may contact him with questions, comments, and requests for insurance quotes by phone at 800‑883‑0412 or by e‑mail at feuling@cbsmalpractice.com).

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