Specific Healthcare Considerations for Sexual Abuse and Harassment
January 31, 2020
In addition to laws that apply generally to organizations, healthcare has its own specific prohibitions for sexual harassment and abuse. A variety of regulatory structures in medicine exist that go beyond those of the Equal Employment Opportunity Commission (EEOC) and state-level human rights and human relations agencies.
The Prohibitions Are Easy to Understand
The Hippocratic oath prohibits sexual activity for physicians with any patient. That applies to anyone in healthcare, supplemented with regulations by state medical boards, state nursing boards, and any nurse therapy boards. According to the National Federation of State Medical Boards there are two categories of sexual misconduct in the context of the practice of medicine. The first one is sexual impropriety, which involves behaviors and gestures that are seductive, sexually suggestive, disrespectful of patient privacy, or could be interpreted as sexually demeaning to a patient. Violations include inappropriate comments about a person's sexual organs or sexual history, or even the suggestion of an interest in sex in some way. Physicians and other care providers are not supposed to have any sexual relationship with a patient.
The second category in this area is sexual violation, involving actual physical contact between a physician or other healthcare provider and a patient. Essential to this area is the idea of a “boundary violation,” a term commonly used by defense lawyers because it sounds much less inappropriate than sexual misconduct or sexual violation.
The Size of the Problem Is Larger Than What Is Reported
A recent investigation by the Atlanta Journal Constitution demonstrates the problem of sexual abuse and sexual harassment in healthcare. In 2016, the newspaper analyzed public records in every state for sexual impropriety and sexual misconduct by physicians. They found public accusations against more than 3100 physicians—the paper estimated this is probably only a fraction of the total sexual violations by physicians. Experts believe that many hospitals are reluctant to report misconduct, because of the widespread ramifications. Medical boards and other healthcare institutions seem to have a similar reluctance to take on these issues directly.
Reporting Needs to Occur Automatically
In the past, internal sexual abuse and harassment allegations in healthcare were not always referred to prosecutors for investigation. Only when the sexual abuse involved minors, who are very vulnerable, was it mandatory to report to law enforcement. By now, all credible allegations should be reported, though whether reporting is required is not consistent across all states. People who articulate a concern about abuse or harassment need to believe that an organization is going to respond appropriately with an investigation. Some states impose due process requirements, as a matter of statute, before a physician can be discharged from a voluntary hospital staff.
Balance Due Process Concerns Against Protecting Patients and Employees
Healthcare organizations must think about due process concerns for staff and balance them against the obligation to protect patients and employees. One question to ask is “What does it mean to take immediate and appropriate corrective actions?” Should a healthcare provider suspend a clinician or put them on leave for a period of time while allegations are investigated? If allegations are credible and you fail to respond, you may be found to have failed to take immediate and appropriate corrective action. Healthcare organizations want to demonstrate that they have taken reasonable steps to prevent anything else from happening while an investigation continues. One option is immediate suspension and a restriction of clinical privileges while the situation is being investigated. Ultimately, organizations need to make sure medical staff policies or bylaw provisions authorize such actions as an immediate suspension if investigators concur that one of these violations has occurred.
This blog post is the third in a series based on the HealthStream webinar, Fostering a Safe and Secure Workplace, led by James Sheehan. Sheehan is currently Chief of the New York Attorney General's Charities Bureau, which oversees compliance and regulation of the nation's largest charity sector. Prior to this role he was the New York City Human Resource Administration's first Chief Integrity Officer overseeing audit investigation and data analysis for the nation's largest social services agency. He has additional experience as New York State's first Medicaid inspector general, overseeing the country's first mandatory compliance program. He also was an assistant and associate U.S. Attorney in the Eastern District of Pennsylvania, where he developed a nationally recognized program working with whistleblowers under the False Claims Act.
Access the full webinar here.