Secrets In the Exam Room: Sexual Misconduct by Doctors

By Robert A. Zielke, et. al.

Sexual misconduct by doctors, therapists, and other health care providers (HCP’s) is under-reported. Some patients never come forward about their sexual exploitation by HCP’s because of their own misinformed belief that they, the patient, validly consented to the sexual contact. Patients and their families are often physically injured and suffer severe mental anguish after being sexually exploited. Because of greater publicity, more patients and/or their families are now seeking legal advice from attorneys about health care provider sexual misconduct.

Sexual misconduct by doctors is not a new concept. Historically, it has been universally accepted that a doctor was not allowed to become intimate with his/her patient. For example, the Hippocratic Oath (c. Fourth Century B.C.) contains a sexual misconduct prohibition. In part, this oath states the following: “Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relationships with both female and male persons, be they free or slaves.” (Emphasis added.) Modern ethical opinions and guidelines from nearly all professional organizations granting membership to various HCP groups now contain prohibitions against sexual relationships with patients, i.e., American Counseling Association, American Medical Association, American Psychology Association, etc. These guidelines can provide valuable information for the attorney handling a sexual misconduct case against a HCP.

The underlying principle upon which this prohibition of sexual intimacy with a patient is based is this: the fiduciary duty arising from this relationship. If an attorney is going to handle a HCP/patient sexual misconduct case, he/she must have a solid understanding of the fiduciary relationship that exists between the patient and the patient’s HCP. The nature of the relationship is significant not only to element of negligence or other causes of action, but also underpins the injuries and damages that patients and their families suffer.

A fiduciary relationship is defined as a relationship where a person (patient) justifiably relies upon another person (doctor) to protect their personal interests and/or act in their best interests. The doctor/patient relationship is a clear example of a fiduciary relationship. Often, service professionals are legally construed to be fiduciaries for those people that seek and obtain the professional’s services.

Within the doctor or the HCP/patient relationship is the element of power. The doctor has the knowledge, the training, the education, and the ability to treat the patient. This knowledge, training, etc. places the doctor in a position of power. The patient, not having this knowledge, justifiably relies upon the doctor to act in the patient’s best interests.

Vulnerability in the patient is also present in the doctor/patient relationship. This vulnerability arises from the fact that most patients seek medical service because of physical or mental problems or conditions. The patient then is expected within this fiduciary relationship to disclose confidential, and sometimes embarrassing information, thereby further increasing the patient’s vulnerability, as well as increasing a reliance on the doctor to act in the patient’s best interests.

It is apparent that a doctor or HCP can abuse and take harmful advantage of a patient because of the doctor’s position of power and knowledge within the relationship. It is because of the potential and the actual abuses of power within fiduciary relationships that the law seeks to protect patients from being exploited.

Analyzing Causes of Action

A client presents at your law office and complains that he/she has been injured by a prolonged sexual relationship with one of his/her treating doctors. This client questions you as to which causes of action he/she might have. What causes of action are typically raised in a lawsuit to recover damages arising from HCP sexual misconduct?

Negligence is the primary legal cause of action for a case of HCP sexual misconduct. A doctor or other HCP that has exploited a patient sexually has usually violated the standards of reasonable prudent medicine in various aspects of patient care, and is therefore negligent. The thorough attorney must carefully examine the fiduciary relationship and find that conduct beneath reasonably prudent standards of care. There are several key breaches by the doctor within the fiduciary relationship with the patient that arise in most cases.

One concept is the concept of “grooming.” Grooming is the term used to describe the escalation and the positioning of a patient by the doctor, making the patient more vulnerable to being used by the doctor for his/her own needs, instead of dealing with the patient’s needs. One scenario of grooming a patient is where the doctor begins by complementing the patient on his/her looks, beauty, dress, etc. Later the doctor begins to touch the patient’s hand as the doctor delivers his/her advice and treatment. Even later, the doctor starts hugging the patient during or at the end of a visit. At the same time or shortly following this physical contact the doctor will often engage in sexual innuendo or some form of sexual talk. The doctor will begin disclosing his/her own personal and private information (making the patient an equal, and not a patient); this information can often include disclosure of lack of satisfaction and pleasure with his/her sexual life with his/her sexual partner. This step-by-step grooming of a patient is negligent behavior, as it is well below any reasonable standard of prudent medicine.

Another concept is the concept of “boundaries.” A fiduciary relationship is framed by the boundaries that shape the relationship. For example, the doctor/patient relationship is “bound” by the care and treatment needs of the patient. Outside the fiduciary boundary, are sexual relationships. A doctor is negligent for breaching these boundaries. A classic boundary violation is when a fiduciary exploits the relationship for improper self-gratification or untoward benefit, i.e., sexual exploitation, billing and/or insurance fraud, delivering services beyond the level of the fiduciary’s competence level.

Doctors, therapists, and other HCP’s have knowledge or should have the knowledge of certain factors and behaviors present within the fiduciary relationship that can signal a potential boundary violation. Two important concepts that HCP’s are aware of are: (1) transference, and (2) counter-transference. Transference and counter-transference can arise in any fiduciary relationship.

Transference is a term coined by Freud, which describes displacement of the patient’s feelings from past events and persons onto the doctor, therapist or HCP. Counter-transference is the doctor’s, therapist’s, or the HCP’s own displacement of feelings onto the patient. It is not that transference and counter-transference do not occur; they do occur and are frequently and usually dealt with in a responsible fashion. It is the mis-handling or non-handling of transference and counter-transference issues that are negligent.

What behavior underlies transference and counter-transference? It is an attraction or strong feeling for the other person within the fiduciary relationship. Because of the uniqueness of the doctor/patient and therapist/patient relationship, attraction for the other can develop. It is well known, for example, that the therapist/patient relationship is often more intimate than the relationship between a husband and wife or other domestic union or partnership. Within the therapist/patient relationship, the patient often reveals confidential and intimate information to the therapist that the patient would not tell a spouse or domestic partner. The therapist, based upon training, receives this information and does so in a non-judgmental way - further fostering intimate and confidential disclosure. Because of transference and the confidential and unique intimate relationship, the patient can develop feelings of love and attraction for the therapist. Likewise, a therapist can develop feelings of love and physical attraction for the patient.

Since these issues of transference and counter-transference are well understood by most HCPs, there are appropriate ways for the HCP to deal with, address, and reasonably resolve these issues. It is when the doctor or therapist uses and abuses the effects of transference and counter-transference that the HCP has engaged in negligent care and treatment.

Other causes of action, other than negligence include the tort of outrage, the intentional torts of assault and battery, and might include an allegation of lack of informed consent. The attorney must carefully consider these and other causes of action.

When considering causes of action, the attorney should be aware of that most professional policies of insurance covering the HCP contain caps on damages, if not completely excluded, for intentional torts and/or sexual relationships with the HCP’s patient. This is often a reason why these claims are framed in terms of negligence. While a full discussion of the insurance law issues is beyond the scope of this article, one should be aware of and carefully review these two cases: American Home v. Cohen, 124 Wn.2d 865 (1994); and, Capelouto v. Valley Forge Insurance Company, 98 Wa.App. 7, 990 P.2d 414 (1999).

Causation and Damage Issues

If a breach of this fiduciary duty (duties) is proven, the patient/victim is entitled to all physical and psychological damages that are directly and proximately caused by the HCP’s breach. This, of course, is the same requirement for all causes of action based upon negligence and similar causes of action.

Unfortunately, the damages that are sustained by the victim and her/his family can be extreme, pervasive and very destructive. In most cases involving this form of abuse, the damages are essentially psychological in nature although in some circumstances physical damage can also occur.

The psychological damage caused by such actions appear in a variety of forms - all of which are devastating to the victim and family members.

Frequently, the victim of such an assault experiences intense guilt about what happened, often blaming themselves for what happened or believing that it was something they did or failed to do that “allowed” the event to take place. For obvious reasons, the victim suffers an impaired ability to trust others after the event especially in the context of a fiduciary relationship.

Often the patient experiences a deep sense of isolation from others - including her/his spouse, partner, family members and/or friends knowing that she/he can’t tell anyone (even previously close confidant’s) about the situation. Frequently the victim also suffers from sexual confusion, to wit: what constitutes a healthy sexual relationship. The patient/victim begins to second guess his/her own judgment.

Together with feelings of guilt, loss of trust, isolation and sexual confusion, the patient may become intensely and acutely depressed and suffer from intense feelings of anger. This suppressed anger is typically not recognized and/or treated timely or appropriately, which frequently leads to an “acting out” by the patient, i.e. targeting others who are clearly not responsible or even aware of the situation.

Once the inappropriate “relationship” is terminated, the patient feels abandoned. The therapist or HCP responsible for the contact will typically terminate the formal therapy relationship and not make any effort to mitigate the situation by a referral to others. The victim, once again, feels isolated and abandoned. An increase in suicide rates for persons in such situations is well documented.

Another phenomena that will occur in these circumstances is what is termed “role reversal” and “boundary disturbance”. As part of the grooming process, the therapist/HCP will often disclose intimate, personal facts to the patient while also asking the patient for her/his advice on the matter. Essentially, the patient becomes the therapist/counselor. This leads to a boundary disturbance within the context of a therapist/patient fiduciary relationship. The patient is now confused as to the appropriate roles between the two parties which often leads to the need of additional therapy to sort out and redefine these roles.

Also, it is not unusual for the patient to suffer from cognitive dysfunction due to the breach. Such dysfunction usually manifests as an attention deficit disorder and/or as an impairment to one’s ability to concentrate.

Unfortunately, the impact of such violations are not limited to the patient/victim themselves. The patient’s spouse/partner develops trust issues with his/her mate in light of the covert sexual liaison. In many cases the couple cannot cope with such an extreme loss and the relationship ends or at least suffers in an impaired state for years. Of course, the spouse as well as the victim’s children have, ostensibly, a valid loss of consortium claim(s) for the impairment or destruction of the respective relationships.

It will be necessary for the patient to be fully evaluated and an appropriate treatment plan formulated following such circumstances. Treatment usually consists of a combination of medications, including anti-depressants, together with psychological counseling on a regular basis.

Psychological and physical damages should be presented by a qualified forensic psychiatrist as well as an expert with the same credentials as the offending therapist.

Conclusion

Sexual misconduct by doctors, therapists and other HCPs in the context of a fiduciary relationship results in tragic and significant consequences to the patient and others. Unfortunately, this abuse occurs when the patient is most vulnerable and frequently results in feelings of guilt, loss of trust, isolation, anger, depression, and abandonment. This in turn supports a cause of action based on negligence (and perhaps other theories) for the damages proximately caused by this basic breach of a fiduciary relationship.

Zielke, et. al., Trial News, Washington State Trial Lawyers, Vol. 36, No. 5, at 18 − January 2001