Sexual Relationships Between Doctors and Patients

Question: Dr. Romantiq is in a sexual relationship with a woman who was a former patient. He had only treated her on one occasion, and that was several years ago when he gave her a flu shot. The woman however, is the spouse of a current patient. Regarding an accusation of sexual misconduct, which of the following choices is false?

A. Sexual misconduct covers any sexual relationship between a doctor and a current patient, and sometimes a former patient as well.

B. It may also cover a sexual relationship with a third party, such as a patient’s spouse.

C. No breach of professional ethics exists so long as sex is consensual.

D. Real concern over physician use or exploitation of patient vulnerability, trust, and dependency is the main reason for outlawing sexual contacts between doctors and patients.

E. In California, sexual misconduct is punishable by license revocation that cannot be stayed by an administrative judge.

Answer: C is false. Sexual relations between doctors and their patients constitute unprofessional conduct, the proscription originating more than 1,500 years ago in the Hippocratic Oath, which warns, “I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons.” The Council on Ethical and Judicial Affairs of the American Medical Association asserts that “sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct.”

Sexual liaisons pose real risks of patient harm from the doctor’s use or exploitation of a patient’s vulnerability. Besides, the disproportionate power renders any putative voluntary consent questionable. Although psychiatrists and psychotherapists may represent specialists who are at particular risk, no distinction is now made between them and other types of physicians. For example, the American College of Physicians, representing general internists and subspecialists, has advised that “issues of dependency, trust, and transference and inequalities of power lead to increased vulnerability on the part of the patient and require that a physician not engage in a sexual relationship with a patient.”

Affairs with former patients are unethical when there is use or exploitation of “trust, knowledge, emotions, or influence” that has been derived from the previous doctor-patient relationship. On the subject of relations with third parties, the AMA is more circumspect, emphasizing the consideration of additional factors such as the nature of patients’ medical problem, length of relationship, degree of the third party’s emotional dependence on the physician, and the importance of the clinical encounter to the third party and the patient. These factors will be used to analyze situations like the one posed in the hypothetical above; the facts given in that case are, however, clearly insufficient to conclude that there is sexual misconduct.

State medical boards have relied on specific statutory powers in regulating this aspect of physician behavior, and courts in general have endorsed their disciplinary actions. For example, the Supreme Court of Washington rejected an appeal of a surgeon who was disciplined for moral turpitude by taking advantage of his position in initiating sexual relations with a former 16-year-old patient. Likewise, the Supreme Court of Ohio upheld disciplinary actions for sexual misconduct against a doctor who compromised his care of an anxious and depressed patient with marital difficulties.

Court Cases and Physician Behavior

A number of court cases have dealt with statutory interpretations. Thus, in Haley v. Medical Disciplinary Board, the court held that the word “patient” denoted an ongoing doctor-patient relationship, and thus did not include a former patient. However, the accused surgeon’s sexual exploitation of a former teenage patient constituted unprofessional conduct, making him unfit to practice.

In Gromis v. Medical Board, the Court of Appeal of California held that the lower court had failed to make any findings that the doctor abused his professional status to induce his patient’s consent to sexual activity and thus reversed his suspension order. The California statute at the time authorized disciplinary action for physician-patient sexual contact “which is substantially related to the qualifications, functions, or duties of the occupation for which a license was issued.”

California has subsequently removed this language in its statute (section 2246), which now reads: “The commission of any act of sexual abuse, misconduct, or relations with a patient … constitutes unprofessional conduct and grounds for disciplinary action.” Furthermore, it provides that the penalty for sexual exploitation requires revocation of the physician’s license, a decision that cannot be stayed by an administrative judge.

Still, an absolute prohibition rule does not always lead to a just result, as there is a legitimate argument for constitutional privacy protection of consensual sex between adults. There is a difference between, say an emergency room physician who is romantically inclined toward a patient he treated years ago with a tetanus shot, and one who is actively treating a woman for depression and peptic ulcer disease who reveals a childhood sexual abuse history and who is going through a divorce. Thus, the AMA encourages consultation with a trusted colleague on such matters, but emphasizes that “at a minimum, a physician’s ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient.”

Notwithstanding the serious breach of medical ethics and law, nearly 1 in 10 physicians has reported sexual contact with a patient or former patient. Sexual misconduct is a recurring complaint before state medical boards, accounting for 4.4% of all disciplinary orders in 1996, with the yearly rate increasing from 42 in 1989 to 147 in 1996. The most commonly affected specialties are psychiatry, child psychiatry, obstetrics and gynecology, and family and general practice. Penalties tend to be more severe for sexual misconduct, compared with other forms of unethical conduct, and frequently involve revocation or suspension of the medical license, although nearly 40% subsequently retain their license to practice.

This column, “Law & Medicine,” regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: Dr. Romantiq is in a sexual relationship with a woman who was a former patient. He had only treated her on one occasion, and that was several years ago when he gave her a flu shot. The woman however, is the spouse of a current patient. Regarding an accusation of sexual misconduct, which of the following choices is false?

A. Sexual misconduct covers any sexual relationship between a doctor and a current patient, and sometimes a former patient as well.

B. It may also cover a sexual relationship with a third party, such as a patient’s spouse.

C. No breach of professional ethics exists so long as sex is consensual.

D. Real concern over physician use or exploitation of patient vulnerability, trust, and dependency is the main reason for outlawing sexual contacts between doctors and patients.

E. In California, sexual misconduct is punishable by license revocation that cannot be stayed by an administrative judge.

Answer: C is false. Sexual relations between doctors and their patients constitute unprofessional conduct, the proscription originating more than 1,500 years ago in the Hippocratic Oath, which warns, “I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons.” The Council on Ethical and Judicial Affairs of the American Medical Association asserts that “sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct.”

Sexual liaisons pose real risks of patient harm from the doctor’s use or exploitation of a patient’s vulnerability. Besides, the disproportionate power renders any putative voluntary consent questionable. Although psychiatrists and psychotherapists may represent specialists who are at particular risk, no distinction is now made between them and other types of physicians. For example, the American College of Physicians, representing general internists and subspecialists, has advised that “issues of dependency, trust, and transference and inequalities of power lead to increased vulnerability on the part of the patient and require that a physician not engage in a sexual relationship with a patient.”

Affairs with former patients are unethical when there is use or exploitation of “trust, knowledge, emotions, or influence” that has been derived from the previous doctor-patient relationship. On the subject of relations with third parties, the AMA is more circumspect, emphasizing the consideration of additional factors such as the nature of patients’ medical problem, length of relationship, degree of the third party’s emotional dependence on the physician, and the importance of the clinical encounter to the third party and the patient. These factors will be used to analyze situations like the one posed in the hypothetical above; the facts given in that case are, however, clearly insufficient to conclude that there is sexual misconduct.

State medical boards have relied on specific statutory powers in regulating this aspect of physician behavior, and courts in general have endorsed their disciplinary actions. For example, the Supreme Court of Washington rejected an appeal of a surgeon who was disciplined for moral turpitude by taking advantage of his position in initiating sexual relations with a former 16-year-old patient. Likewise, the Supreme Court of Ohio upheld disciplinary actions for sexual misconduct against a doctor who compromised his care of an anxious and depressed patient with marital difficulties.

Court Cases and Physician Behavior

A number of court cases have dealt with statutory interpretations. Thus, in Haley v. Medical Disciplinary Board, the court held that the word “patient” denoted an ongoing doctor-patient relationship, and thus did not include a former patient. However, the accused surgeon’s sexual exploitation of a former teenage patient constituted unprofessional conduct, making him unfit to practice.

In Gromis v. Medical Board, the Court of Appeal of California held that the lower court had failed to make any findings that the doctor abused his professional status to induce his patient’s consent to sexual activity and thus reversed his suspension order. The California statute at the time authorized disciplinary action for physician-patient sexual contact “which is substantially related to the qualifications, functions, or duties of the occupation for which a license was issued.”

California has subsequently removed this language in its statute (section 2246), which now reads: “The commission of any act of sexual abuse, misconduct, or relations with a patient … constitutes unprofessional conduct and grounds for disciplinary action.” Furthermore, it provides that the penalty for sexual exploitation requires revocation of the physician’s license, a decision that cannot be stayed by an administrative judge.

Still, an absolute prohibition rule does not always lead to a just result, as there is a legitimate argument for constitutional privacy protection of consensual sex between adults. There is a difference between, say an emergency room physician who is romantically inclined toward a patient he treated years ago with a tetanus shot, and one who is actively treating a woman for depression and peptic ulcer disease who reveals a childhood sexual abuse history and who is going through a divorce. Thus, the AMA encourages consultation with a trusted colleague on such matters, but emphasizes that “at a minimum, a physician’s ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient.”

Notwithstanding the serious breach of medical ethics and law, nearly 1 in 10 physicians has reported sexual contact with a patient or former patient. Sexual misconduct is a recurring complaint before state medical boards, accounting for 4.4% of all disciplinary orders in 1996, with the yearly rate increasing from 42 in 1989 to 147 in 1996. The most commonly affected specialties are psychiatry, child psychiatry, obstetrics and gynecology, and family and general practice. Penalties tend to be more severe for sexual misconduct, compared with other forms of unethical conduct, and frequently involve revocation or suspension of the medical license, although nearly 40% subsequently retain their license to practice.

This column, “Law & Medicine,” regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: Dr. Romantiq is in a sexual relationship with a woman who was a former patient. He had only treated her on one occasion, and that was several years ago when he gave her a flu shot. The woman however, is the spouse of a current patient. Regarding an accusation of sexual misconduct, which of the following choices is false?

A. Sexual misconduct covers any sexual relationship between a doctor and a current patient, and sometimes a former patient as well.

B. It may also cover a sexual relationship with a third party, such as a patient’s spouse.

C. No breach of professional ethics exists so long as sex is consensual.

D. Real concern over physician use or exploitation of patient vulnerability, trust, and dependency is the main reason for outlawing sexual contacts between doctors and patients.

E. In California, sexual misconduct is punishable by license revocation that cannot be stayed by an administrative judge.

Answer: C is false. Sexual relations between doctors and their patients constitute unprofessional conduct, the proscription originating more than 1,500 years ago in the Hippocratic Oath, which warns, “I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons.” The Council on Ethical and Judicial Affairs of the American Medical Association asserts that “sexual contact that occurs concurrent with the patient-physician relationship constitutes sexual misconduct.”

Sexual liaisons pose real risks of patient harm from the doctor’s use or exploitation of a patient’s vulnerability. Besides, the disproportionate power renders any putative voluntary consent questionable. Although psychiatrists and psychotherapists may represent specialists who are at particular risk, no distinction is now made between them and other types of physicians. For example, the American College of Physicians, representing general internists and subspecialists, has advised that “issues of dependency, trust, and transference and inequalities of power lead to increased vulnerability on the part of the patient and require that a physician not engage in a sexual relationship with a patient.”

Affairs with former patients are unethical when there is use or exploitation of “trust, knowledge, emotions, or influence” that has been derived from the previous doctor-patient relationship. On the subject of relations with third parties, the AMA is more circumspect, emphasizing the consideration of additional factors such as the nature of patients’ medical problem, length of relationship, degree of the third party’s emotional dependence on the physician, and the importance of the clinical encounter to the third party and the patient. These factors will be used to analyze situations like the one posed in the hypothetical above; the facts given in that case are, however, clearly insufficient to conclude that there is sexual misconduct.

State medical boards have relied on specific statutory powers in regulating this aspect of physician behavior, and courts in general have endorsed their disciplinary actions. For example, the Supreme Court of Washington rejected an appeal of a surgeon who was disciplined for moral turpitude by taking advantage of his position in initiating sexual relations with a former 16-year-old patient. Likewise, the Supreme Court of Ohio upheld disciplinary actions for sexual misconduct against a doctor who compromised his care of an anxious and depressed patient with marital difficulties.

Court Cases and Physician Behavior

A number of court cases have dealt with statutory interpretations. Thus, in Haley v. Medical Disciplinary Board, the court held that the word “patient” denoted an ongoing doctor-patient relationship, and thus did not include a former patient. However, the accused surgeon’s sexual exploitation of a former teenage patient constituted unprofessional conduct, making him unfit to practice.

In Gromis v. Medical Board, the Court of Appeal of California held that the lower court had failed to make any findings that the doctor abused his professional status to induce his patient’s consent to sexual activity and thus reversed his suspension order. The California statute at the time authorized disciplinary action for physician-patient sexual contact “which is substantially related to the qualifications, functions, or duties of the occupation for which a license was issued.”

California has subsequently removed this language in its statute (section 2246), which now reads: “The commission of any act of sexual abuse, misconduct, or relations with a patient … constitutes unprofessional conduct and grounds for disciplinary action.” Furthermore, it provides that the penalty for sexual exploitation requires revocation of the physician’s license, a decision that cannot be stayed by an administrative judge.

Still, an absolute prohibition rule does not always lead to a just result, as there is a legitimate argument for constitutional privacy protection of consensual sex between adults. There is a difference between, say an emergency room physician who is romantically inclined toward a patient he treated years ago with a tetanus shot, and one who is actively treating a woman for depression and peptic ulcer disease who reveals a childhood sexual abuse history and who is going through a divorce. Thus, the AMA encourages consultation with a trusted colleague on such matters, but emphasizes that “at a minimum, a physician’s ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient.”

Notwithstanding the serious breach of medical ethics and law, nearly 1 in 10 physicians has reported sexual contact with a patient or former patient. Sexual misconduct is a recurring complaint before state medical boards, accounting for 4.4% of all disciplinary orders in 1996, with the yearly rate increasing from 42 in 1989 to 147 in 1996. The most commonly affected specialties are psychiatry, child psychiatry, obstetrics and gynecology, and family and general practice. Penalties tend to be more severe for sexual misconduct, compared with other forms of unethical conduct, and frequently involve revocation or suspension of the medical license, although nearly 40% subsequently retain their license to practice.

This column, “Law & Medicine,” regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is a former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].