Most Boards of Medicine take a draconian view towards sex with patients. If a complaint is filed, and the sexual relationship began in the middle of a doctor-patient relationship, discipline likely will ensue. The interpretation is absolute.
With most crimes, guilt/innocence and the penalty are defined by the defendant’s state of mind. Very few things in the legal world are absolute. Premeditated murder is different than heat of passion manslaughter, even though in both cases, there’s a dead body.
There are some exceptions in criminal law to the state of mind requirement. That is known as strict liability. Guilt/innocence and the penalty are defined by the act itself. State of mind is irrelevant. Sex with a minor (statutory rape) is one example. It matters not if the victim looked 25 and gave full consent. In the eyes of the law, if you did the act, you’re guilty. Strict liability.
Lawyers are becoming subject to the same rules are physicians. In California, the long-standing rule was that attorneys could not coerce a client into sex or demand sex in exchange for legal representation. Late in 2018, a new rule was instituted. Even consensual sex between attorneys and clients is banned unless it preceded the professional relationship, or the client is the lawyer’s spouse or domestic partner.
The sex ban proposal was divisive, even though at least 17 other states have adopted a similar ban. Supporters said the relationship between a lawyer and client is inherently unequal, so any sexual relationship is potentially coercive. But some attorneys said the blanket ban was an unjustified invasion of privacy. It also required the state bar to consider whether a client would be “unduly burdened” by an investigation of sexual misconduct if someone other than the client filed the complaint.
Back to physicians.
I understand the blanket prohibition if the patient is receiving some form of psychotherapy or is being treated for a life-threatening condition. There, it is easy to understand that patient is vulnerable and unable to provide meaningful consent.
But what if the patient was seen a single time in an urgent care clinic for a 1 cm laceration that was treated with steri-strips? And let’s say that patient is attracted to the doctor and wants to start a relationship. Is that forbidden? I know some will say formally terminate the doctor-patient relationship first, then proceed.
OK, now assume the patient is being treated for hypothyroidism. The relationship with her endocrinologist will be chronic. Two consenting adults. Still forbidden?
What if the doctor has set up his shingle in a rural area? The universe of available dating opportunities is limited. Is he forbidden from dating a patient? Did he sign up for celibacy particularly when he is providing a valuable service to an underserved community?
What about doctors who volunteer to work at the Antarctic Research Station in the South Pole? No snuggling (with consent) for warmth? No participation in the 300 Club?
Here’s the bottom line.
Sexual relationships with patients are fraught with peril. If the patient feels slighted, he/she can file a complaint with the Board. Being slighted generally means the relationship broke up. If the patient was married, it will be even messier. The patient will make the argument, right or wrong, that you abused the doctor-patient relationship for personal gain. The Board will not be sympathetic to the argument that the relationship was consensual. The relationship may have started consensually, but, if the patient is complaining to the Board, they’ll argue they could not give meaningful consent.
That said, I believe there are shades of gray. With most the examples above, I do not believe they are ethical lapses. I do not believe they merit the charge of unprofessional conduct.
Still, if you want to stay out of the crosshairs, don’t have sex with patients. Period.
If you want to minimize the likelihood of a problem, then formally terminate the doctor-patient relationship and wait. Even that option may not suffice for some specialties – eg: psychiatry.
Or you can marry your patient.
Most importantly, the Board takes action when it receives a complaint. If your patient never files a complaint, then the likelihood of the Board taking action is low. A patient who is not scorned is less likely to take action. Hell hath no fury like a scorned patient. Or something like that. Let us know your thoughts below.
In closing – sex in the workplace is a liability. Especially when the workplace is a medical practice. This is a topic we’ve discussed before on our podcast. We suggest listening to the episode if you haven’t already – in 15 minutes, you’ll learn critical steps doctors can take to protect their staff and their patients from sexual harassment.
Medical Justice is equipped to help its member physicians navigate medico-legal obstacles. At the worst of times, an unexpected challenge may appear overwhelming. And when we are overwhelmed, the temptation to stand still and wait for the storm to pass is strong.
Don’t stand still. Take action. Medical Justice can help you determine what needs to be done to neutralize the problem and protect the interests of your employees and your practice.
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Jeffrey Segal, MD, JD, FACS
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. 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.