We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

Woody Allen notoriously maintained that “The heart wants what it wants.”

Mr. Allen thought that all that mattered when he married his daughter-in-law was his heart. But, from the standpoint of the public, the type of relationship sometimes matters as much as the bond between the two parties.

When there is a personal relationship between a doctor and a patient, society – in the form of state medical boards and the courts – will likely be in the bedroom as well.

The underlying challenge: a doctor is a fiduciary for the patient, bound to act solely for the patient’s good (because the patient is inherently in a vulnerable state); and, in a romantic relationship there should be equality between the parties choosing to be in that relationship.

The likelihood of a sexual component to the relationship adds additional scrutiny to a situation in which one individual is seen as subordinate by definition.

Harsh limitations are placed on the doctor in terms of becoming romantically involved with a patient.

AMA Opinion 8.14, which is given weight by state boards and by courts, holds that sexual contact between a doctor and a patient that is concurrent with the doctor-patient relationship constitutes sexual misconduct per se.

The Opinion actually declares any non-platonic relationship to be predatory on the patient, making no distinction between a doctor who dates a patient and a doctor who assaults a patient.

In an article in JAMA announcing the policy, the AMA specifically rejected the idea that sexual relationships between doctors and patients were permissible if the patient consented.

It held that “the relative position of the patient within the professional relationship is such that it is difficult for the patient to give meaningful consent to such behavior.”

What if the personal relationship begins only after that only begin after there is no longer a therapeutic relationship. The JAMA article still cautioned that the prior setting may have given the doctor a very significant upper hand of undue influence and that it is intrinsically unethical if the doctor “uses or exploits trust, knowledge, emotions or influence derived from the previous professional relationship” in the personal setting with his ex-patient.

That the AMA’s approach is an extreme one is certain.

As a basic matter it presumptively infantalizes the patient. It then goes on to presume that all doctor-patient therapeutic relationships are of equally significant depth and carry an equal opportunity for exploitation.

That last point is counter-intuitive to any practicing physician.

A patient merely ending treatment with a psychiatrist who dealt with his most serious personal issues for years obviously does not end that doctor’s knowledge of those issues. But a surgeon who did a cholecystectomy and then saw the patient for limited post-op care is unlikely to have gained confidential information that could then be “used” in a personal relationship. Similarly, getting a fracture set does not create a systematically vulnerable status for the patient that the doctor could exploit but high risk obstetrical care or extensive oncologic care might.

Regardless, the standard that the AMA set is absolute and states have adopted a similarly strict approach as well.

For example, in New York the state medical board states “A patient cannot give meaningful consent to sexual contact due to the position of trust and the disparity of power in the physician-patient relationship.” Washington State, with the avowed intention to create a “bright line” on which a licensure action could rest, lists 11 specific prohibited actions which include asking a patient out on a date or kissing a patient in a romantic manner.

The state enforcement methods are potentially very severe as well.

For example, in New York the state medical board, through the Office of Professional Misconduct, deems sexual contact with a patient per se misconduct that will result in actions against the physician’s license, including revocation. The Department of Health extends the definition of “physician sexual misconduct” to verbal interactions as well if they are seen to exploit the doctor-patient relationship. Whether a comment was flirtatious or crude may not be parsed by a disciplinary board because what is actually looked to is the setting.

There is also no mitigation if it was the patient who initiated the personal contact. The physician is required to control that situation, either tamping it down within the therapeutic setting or terminating the patient from treatment.

The American Psychiatric Association is even stricter than the AMA Opinion, absolutely barring any romantic/sexual relationship with a current or former patient.

Any physician contemplating a romantic relationship with a patient should therefore bear in mind what may be leveraged against them in a disciplinary hearing or a lawsuit if that relationship goes bad. What will happen if their ex-girlfriend makes a complaint to the board that they abused their status as a physician? What if their ex- boyfriend sues them for emotional distress and breach of privacy?

There is, however, an aspect to this rigidity that many physicians will concur with: the possibility that a doctor’s medical judgment may be compromised when they are treating someone they are romantically involved with.

The AMA Opinion states that a romantic relationship “may obscure the physician’s objective judgment concerning the patient’s health care, and ultimately may be detrimental to the patient’s well-being.” This is fully in line with the fact that while most states do not forbid treating family members 100% of the time, they frown on it.

What is certain is that the therapeutic relationship should be formally terminated before the romantic relationship begins. This should be by a termination letter and a referral to another physician. Remember that courts look to what a patient reasonably believed when determining if a physician-patient relationship exists so any such belief should be formally ended and that end documented.

In this regard it is also essential to keep in mind that your state may itself have a time limit, such as 6 months in Colorado, after termination of the medical relationship before an intimate one may begin.

Interestingly, neither the AMA nor state laws take a position on whether former lovers can then establish a doctor-patient relationship after their romantic relationship has ended.

This all having been said, the fact is that people meet where they meet and that place may be the consulting room. The doctor’s own life circumstances may be a limiting factor since, for example, doctors who serve rural areas may actually have no romantic options who are not patients or potential patients and could even be barred from treating a spouse although there is no other practitioner available.

These rules are therefore going to get broken and you may break them.

However, if you are considering doing so then you need to bear in mind that a state medical board or court is not going to know about your private life until things go bad.

Therefore, while these are ethical issues and should not be looked at as direct risk management, that the relationship may proceed or end in a way that the patient-now-a-girlfriend/boyfriend/spouse does not like and that they may seek retaliation through a state administrative system or through a lawsuit is something that you must consider.

It is therefore essential to not enter into a relationship out of passion that blinds your good judgment or with someone whose conduct is already questionable.

In summary: The AMA Opinion on relationships with patients is the standard that medical boards and courts will look to. It is zero tolerance as to engaging in such while still treating the patient and has serious caveats about relationships with former patients. The APA fully bars relationships with former patients as well as with current patients. States tend to have very strict rules against romantic involvement with current patients and may specify how long after the therapeutic relationship has ended before a romantic relationship may begin. Any relationship with a former patient should be entered very circumspectly because of the liability and licensure risks to the physician.

[Medical Justice notes: I am personally aware of one surgeon who married his ex-patient. He did it right. He fixed the medical problem. The two of them thought there might be something to explore. I was not privy to those details. The surgeon formally terminated the doctor-patient relationship and referred the patient to a colleague. Then they waited until they started dating.

I am also aware of doctors who had an affair with their patients – and “all was well” until the spouse learned of the affair, or the doctor broke it off. Some of these escalated into Board actions; some escalated into lawsuits; some both. “Everyone’s having fun at the poker table until someone pulls out a gun.”]