December 2006

One doctor's story ...

"I'm not a pervert!"

Sexual misconduct suits can bankrupt DCs

by Timothy J. Feuling

There's probably nothing more despicable than a doctor of chiropractic who intentionally abuses a patient sexually. It is a clear violation of the patient's trust in the individual doctor and the profession as a whole. It is behavior which can never be justified or tolerated and must be dealt with seriously and severely.

But there's probably nothing more frustrating and destructive than a doctor of chiropractic who is accused of sexual misconduct when he honestly didn't do anything wrong. (Note: Although I use the masculine pronoun since almost all sexual misconduct cases involve male doctors, all DCs ‑‑ male and female ‑‑ need to be extremely aware of the dangers of sexual misconduct accusations.)

I recently talked with a doctor whose case was fairly typical. Peter Emory, DC, has been a doctor for more than a decade and is highly respected in his community. The only time he ever faced a board complaint was in his second year of practice, when a patient complained of his fees. The complaint was promptly dismissed. (I've changed the doctor's name and some of the details of his practice in order to protect his privacy, but the basics of the case are absolutely true!)

A few months ago, Dr. Emory was caring for a female patient and gave her a routine adjustment. Everything seemed to go fine and she thanked him and made an appointment for another visit the following week. She didn't show up and Emory's CA made a note to contact her. Before she could do so, the office received notification from the patient's lawyer that she was filing a malpractice lawsuit and a board complaint against him for sexual abuse. The patient claimed he inappropriately touched her breast during the adjustment.

Emory was shocked. He was happily married and his wife worked in his office. In fact, she had been right next door when the alleged incident took place. The patient's visit was so routine he hardly remembered it, and his notes were equally standard. He couldn't understand what he had done that could have been so completely misconstrued.

He contacted his malpractice insurance company and had another shock. His policy specifically excluded any defense against accusations of sexual misconduct. He was on his own!

His next call was to an attorney, who began the long and tedious process of responding to the complaint. The attorney spoke with the patient's lawyer and discussed settling the case out of court. But the patient wanted $25,000 for "mental anguish." Since Emory knew he was innocent and felt certain he would be vindicated, he told the lawyer he wanted to fight the case. His attorney agreed, particularly given that Emory had a spotless record and was highly regarded in his town. The patient was a newcomer to the community, with little information about her background. It would come down to her word against his, Emory was told.

Over the next few weeks, he tried to continue with his regular practice but it was hard for him to concentrate. He met with his lawyer, gave depositions, complied with subpoenas for his records. Rumors began circulating around town and he noticed a decrease in practice volume.

The case eventually went to a jury and the nightmare got worse. Even the judge appeared startled when the jury came back with a verdict of guilty. Emory sat in the courtroom, numb with shock. How could this happen? He wanted to stand up and scream "I'm not a pervert!" It felt as though his whole world was falling apart.

So far, he's lost more than $30,000 in legal fees and judgments and hasn't even faced his state board yet. His license was suspended pending his hearing, which will not be scheduled for several months due to the board's backlog. In the meantime, he's faced with spending another $10‑20,000 in legal fees to defend himself in front of the board. Another call to his malpractice carrier confirmed his worst fears ‑‑ his policy does not cover defense of professional board issues regarding sexual misconduct allegations

To add insult to injury, his carrier refused to renew his policy because of the lawsuit, and if his license is reinstated, he'll have to pay a hugely inflated premium with a surplus lines broker to buy a high‑risk policy.

As I said, this case isn't unique. It's the type of situation that we're seeing more and more in chiropractic. In many states, sexual misconduct is one of the leading accusations made against health care providers.

In an article in Portland, Oregon's Willamette Week Online news magazine, Western States Chiropractic College President William Dallas, DC, admitted: "The problem is so much more prevalent than anyone wants to admit. You develop an intimate relationship with women, and when you're in that relationship you may be more attentive to them than their husbands are. It's very easy to misinterpret the gratitude of that patient for something that it's not."

Often, it's not simply misinterpretation, but malice or greed on the part of the accusing patient. A panel of medical physicians examined 17 cases and concluded that "cases involving sexual misconduct by physicians are increasing in number, are potentially devastating, and present extremely difficult medical, legal, and ethical issues. Some cases clearly involve predatory physicians, but an equal or greater number involve predatory patients."

Dr. Emory's case also points out the difficulty of proving one's innocence in such cases. Although the burden of proof is supposed to be on the plaintiff, sexual misconduct cases are so fraught with emotion that verdicts are often more a reflection of the jury's sympathy for a possible victim than a demonstration of justice.

There is no fool proof way to prevent sexual misconduct accusations.

However, there are several things you should do in order to minimize your risk, including:

***  Be sensitive to women's concerns about sexual abuse. Research suggests that one in three girls are sexually abused before the age of 18 and approximately 44% of women are victimized by rape or attempted rape at some time in their lives. Women have a right ‑‑ and a need ‑‑ to be careful. While a fleeting touch or light pressure might not seem to you to be a "big deal," try to put yourself in the patient's position. Better yet, think of the patient as your sister or daughter. Make sure you apply the chiropractic Golden Rule ‑‑ touch your patient only the way you'd expect another DC to touch your family members.

***  Eliminate the need for disrobing whenever possible. Most chiropractors do not require patients to disrobe. Those who do should purchase and use appropriate gowns, give the patients ample time to disrobe in private, and take extra precautions to protect their dignity and privacy. Also, tell patients specifically how much they need to disrobe (bra only, bra and blouse, belt only, etc.).

***  Communicate carefully. Explain to your patients exactly what you're doing, to eliminate the element of surprise. By explaining ahead of time, "We're going to turn you onto your right side now," or "I'm going to place my arm over your body to give me better leverage," you prepare the patient and provide a legitimate therapeutic rationale for the action.

***  If you are a male doctor tending to a female patient, consider having a female CA, associate or other staff member remain in the room during the exam or adjustment, particularly if the patient appears anxious or protective of her privacy.

Many health care advocates agree with Dr. Thomas Gutheil, professor of psychiatry at Harvard Medical School, who stated: "In the present era, chaperoning is clearly indicated and represents valuable protection for both parties. Thus, arguments against its use are archaic and outdated." Although he was speaking specifically about medical doctors, the technique may become essential in chiropractic offices if there is an increase in the number of sexual misconduct suits.

Be aware, however, that having a female staff member in the room with you won't guarantee you won't be accused of wrongdoing. A nurse was present in at least half of these incidents examined by the panel of medical doctors.

Naturally, if anything occurs that might be considered sexual misconduct, document it in the patient's records immediately, noting exactly what happened and what remedial actions you took (i.e., calling in a chaperon, apologizing, etc.)

This is particularly important if you sense a patient may be deliberately using your innocent touch as a provocation for a lawsuit. Being "set up" is on the increase today, as patients seek to force doctors into settlements. By putting into place proper practice procedures, using chaperons when deemed reasonable, documenting all actions, and being sensitive to the impact of touch, you can minimize the risk of any successful lawsuits.

If a complaint (formal or informal) is made, contact your malpractice carrier immediately. Of the major malpractice companies covering chiropractors, CBS specifically covers defense against accusations of sexual misconduct ... and for defense against board complaints. If Dr. Emory had been covered by CBS, the legal expenses for his defense would have been covered by CBS and he might not now be facing bankruptcy.

Given the increasing likelihood of a financially devastating lawsuit for sexual misconduct, it doesn't make sense for a DC to take out a malpractice policy that doesn't cover these two important scenarios.

(Timothy J. Feuling, as president of chiropractic Benefit Services, assists doctors in maximizing their practices through the proper choice of insurance and related services. Mr. Feuling is also available for speaking engagements at state conventions and other chiropractic events. Doctors may contact him with questions, comments, and requests for insurance quotes at 2950 N. Dobson Rd. Ste. 1, Chandler, AZ 85224, by phone at 800‑883‑0412 or by e‑mail: feuling@cbsmalpractice.com).