“The doctor groped me while examining my breasts.”

“The doctor ground his groin into my knee while listening to my heart and lungs.”

Even this: “The doctor invaded my personal space while examining me.” Which begs the question, precisely how can a patient be examined if not by observing and touching the patient?

Think this only affects male physicians? Guess again. Yes, male physicians are the ones mostly accused. But in modern day, allegations of sexual improprieties are promoted as “equal opportunities.”

If you are on the receiving end of such a complaint, the patient may file a police report. This will get the ball rolling for a criminal court action.

This may lead to an investigation of your medical license, ending with discipline, including suspension or revocation of your license.

And civil action against your pocketbook. Will your professional liability carrier pay for a defense? Perhaps, depending upon how the allegations are framed. But it is unlikely to pay for a settlement or judgment, arguing that such actions are excluded from the plain language of the policy contract.

Merely defending such claims can cost a fortune, even if you win.

If you lose, well, you can imagine what might happen.

The traditional wisdom is to make sure there is a chaperone in the room, witnessing the entire examination. Certainly, when one is examining intimate body parts. This is the most important step. In the absence of a chaperone, the allegations devolve into she said, he said. Or he said, she said. Or he said, he said. And so on. You get the picture.

Stephen Bresnick, MD a California plastic surgeon wrote an excellent article about chaperones in Aesthetic Surgery Journal entitled Highly Publicized Litigation Against Doctors: How Plastic Surgeons Should Protect Themselves and Their Patients.

Download it. Read it twice.

His advice is easy to follow and may save your career. He argues the mere presence of a chaperone is not enough. He served as an expert witness defending a physician against criminal charges. Here’s what he wrote about tactics used by the district attorney during cross-examination.

The district attorney attempted to discredit the testimony of the chaperones present during the breast examinations, indicating that they could not recall the details of examinations performed over 5 years previously. In one case, the prosecution also suggested that the chaperones may not have been in the best position to see the full breast examination and could not determine the potential sexual nature of the examination. Although the medical record documented the name of the chaperone present during the examination, and the chaperone testified that they did not recall the physician ever doing anything inappropriate in their time working with him, the record did not include written statements documented by the chaperone that the examination was done professionally or appropriately.

A chaperone must be present during all breast/genital examinations of a female patient.

A female chaperone also may serve to comfort a patient who is ill at ease during the examination. If a female family member is present during the examination, it still is advisable to have a chaperone present to document what actually occurred, in the event that the patient and her attendee indicate that the physician acted inappropriately during the examination. Without a chaperone and proper documentation, there is little defense against anything they say. The chaperone should be introduced and positioned in the room so that they can see the entire examination. Second, it is important for the physician to explain what is going to be done during the examination and why. For example, if the plan is to palpate or displace the breast implant, explain the benefit and purpose of the examination.

Next, ask for verbal consent for the examination.

If they appear uncomfortable or do not give consent, do not proceed, and document the refusal in the patient’s medical record… Do not hesitate to refer them to another physician with whom they may feel more comfortable.

Finally, and IMPORTANTLY, add the following statement in the medical record.

The statement may read as follows: I, _______ _____________, served as a ____________ [breast/genital area] examination chaperone, and attended the entire examination performed by Dr ____________________ for patient ____________________ on _________ ______ [month/day/year]. I witnessed the complete examination, which was performed appropriately and professionally and according to the standard of care in our practice. Signed: ____________________ Date: ______ Time: ______.

For most physicians, your processes will change little. Though your documentation will be beefed up.

While many doctors will never be on the receiving end of a Kafkaesque false allegation, this documentation may save your pocketbook, your career, and your freedom. As they say, if you don’t have a parachute when you need it, you’ll never need one again. The same goes for the best-practice documentation if and when you cross paths with a false allegation of sexual abuse.

What do you think?

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.