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On this episode of the Medical Liability Minute, Medical Justice Founder and CEO, Jeff Segal, MD, JD, and Medical Justice General Counsel, Michael Sacopulos, JD, discuss medico-legal liability and sexual harassment. It is critical doctors take steps to protect their staff, their patients, and themselves from sexual harassment. These cases often rear their heads without warning. Many doctors have the power to do more than they realize. Those caught unaware pay a high price.  Listen to the episode on the embedded player below – or click here to read the episode transcript.

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Key points today…

  • Employment Practices Liability Insurance (EPLI) is critical. If you don’t already have it on your books, get it on your books.
  • Becoming intimate with colleagues or employees almost always produces bad outcomes. If you must pursue romance, you must determine how to do so safely, or not at all.
  • Never enter a relationship with an employee where there is a perceived power dynamic. 

We are privileged to have Mike Sacopulos, JD, as our guest on this episode of the Medical Liability Minute. This episode represents the first part of a multi-part discussion. Additional cases will be published in the coming months.

Episode Transcript

Automatic transcript provided by Happy Scribe. Click here to jump to the post-episode discussion…

– Jeff Segal, MD, JD

Greetings everyone – and welcome to the Medical Liability Minute. It’s a podcast where we summarize modern medico-legal threats to doctors. And we do this is so you can continue practicing great medicine with peace of mind. I’m your host, Dr. Jeff Segal, Founder and CEO of Medical Justice, an organization dedicated to protecting doctors from frivolous lawsuits, internet libel, unwarranted demands for refunds, and a bevy of other medical legal threats. I’m joined today by my co-host, Mike Sacopulos, JD, who serves as our organization’s general counsel. Glad to have you with us today, Mike.

– Michael Sacopulos, JD

Thanks for allowing me to join you – and I do have to say, I think it’s interesting you called me in to discuss these topics specifically. But the audience can interpret that statement however they like.

– Jeff Segal, MD, JD

So, here is the topic – we’re talking about medico-legal liability and sex. And we have several cases to deconstruct. We’ll cover one today. And without further ado, let’s begin.

This is a case out of Tennessee, which ended with a 2.3 three-million-dollar verdict. Not a small chunk of change. The plaintiff is a 28-year-old woman who worked for a medical group as an assistant office manager. She alleged that the internist, who is 59 years of age, sought a sexual relationship with her. The office manager ultimately gave in and began a sexual relationship with the internist.

The office manager ended their relationship two months later – an important detail. In response, the doctor promptly put her on leave of absence. And there was some proof that he would only let her return to work if she would agree to continue (or pick up) where the relationship ended. The office manager gave in for another month or so and started seeing the internist. She said she was a single mother and she feared losing her job and her only means of supporting herself.

She ended the relationship for a second time a month later – and the internist fired her. And you can imagine what happened next. There was a lawsuit where she alleged that she had significant emotional symptoms, including weight loss, panic attacks, paranoia, depression, and so on and so forth. The allegation was that this was a sexual harassment type of case where there was a quid pro quo – namely that employment and opportunities to advance in the practice were contingent upon her dating the internist, as well as having sex with him. As for the doctor, he said that her firing represented little more than a downsizing (and please, no puns), and there was no underlying retaliatory purpose.

This is a case that lasted three days in court and the jury rendered 2.3 million dollars in damages. A pretty hefty number. The internist filed for bankruptcy and the plaintiff (in this case the office assistant) challenged the ability to discharge the debt on the grounds that the internist’s conduct was willful and malicious. The bankruptcy litigation is pending.

Need I say more than: What a mess!

– Michael Sacopulos, JD

From the standpoints of both the litigation and the personalities. Just a total disaster.

– Jeff Segal, MD, JD

Let’s start with the obvious. When you mix sex in the workplace, and there’s a perceived power dynamic, namely a boss and an underling, there’s the potential for problems to arise. If the relationship does not continue into infinity, there’s plenty of opportunity for the jilted lover to spin the relationship in a different way. For example, one could say…

“I never wanted to have sex with you – but I felt compelled to have sex with you. It wasn’t voluntary. I needed to maintain a physical relationship to keep my job – or I needed it to advance in the business. Or I needed it to avoid being fired.”

The list goes on and on. We recognize that people in the workplace are human and that human attraction exists. And I don’t think that’s ever going to change. The question is, “How do we explore that attraction in a way that is safe?”

And if it can’t be done safely, my argument is: It should not be done at all.

– Michael Sacopulos, JD

I agree.

– Jeff Segal, MD, JD

In this case, there was an obvious sexual relationship. But sometimes, there’s no sex involved at all, and the situation is misconstrued or misunderstood. Namely, the employee perceives that the boss is making advances, when in point of fact, the boss is not, and the allegations are fabricated.

This can also lead to litigation. My first message is that you need to look at your insurance policies – review them as soon as you’ve finished listening to this podcast – and make sure that in addition to your general business liability coverage, you have a separate policy called EPLI. It stands for Employment Practices Liability Insurance. Again, that’s EPLI.

What does it do? EPLI will typically pay up to a million dollars in both legal fees and judgment or settlement for behaviors related to employment discrimination or sexual harassment. It covers other types of workplace discrimination, such as race, gender, disability, etc. I know that Hartford has a policy that is quite reasonable. The cost is not in the same ballpark as professional liability coverage and you likely will never need it – but if you need it, you want to have it.

Defending these types of cases in court and hiring your own attorney and paying for a plaintiff’s judgment can set you back hundreds of thousands of dollars.

My strong argument: Make sure you have this type of coverage in place.

– Michael Sacopulos, JD

You brought up the situation where someone may feel like they’re being pressured into a sexual relationship when that may not be the case – and something needs to be done to defuse those problems.

My initial thoughts – consider enhancing the annual compliance rituals of your practice. There should be sexual harassment training. And this training is available, oftentimes for free, if you have insurance. Your insurance company will provide this kind of training – or even on the Internet you can find some basic training.

My message is to implement something concrete. Implement something that you can document. Prove that you’ve trained your staff. And more importantly, provide some way for people to anonymously report harassment that they’ve seen or experienced. There are services that are separate from your practice and allow staff to report harassment anonymously. The fear of retribution is removed. And if you implement such services in addition to the training we’ve described, you increase your chances of identifying problems.

– Jeff Segal, MD, JD

In larger organizations, you would have a written policy detailing how to report alleged sexual harassment. And you would report this harassment to a supervisor – unless your supervisor is harassing you, in which case you’d go one step beyond him or her. You’d have an opportunity to make sure you are heard, and that action is taken. By listening to the complaint and taking remedial steps, you can often insulate yourself (or at least your organization can insulate itself) from the charge of sexual harassment by saying,

“I didn’t know about it until they told me about it. Once I learned about it, I took it seriously. I did a thorough investigation and took action.”

And this is one way to potentially turn the evolving problem into less of a headache. One thing doctors need to know: It’s not just the employees in your organization that could cause a sexual harassment situation. It could be third party vendors you invite to your practice. Arguably – even patients.

Let me give two examples.

A pharmaceutical sales rep is coming to your practice and hitting on one of your employees. Your employee perceives this rep as hostile. Your employee makes this clear to you. And yet you continue to invite this individual to the practice. You play golf with him. He trains your staff. And he continues to harass your employee.

In this example, you’ve heard about the problem, but you’ve not acted. Conceivably, you could be on the receiving end of a sexual harassment lawsuit, even though this rep is not your employee.

You don’t control their activity, but what you do control is their ability to gain access to this employee and make them feel as if they’re in a hostile environment. Not dissimilar with a patient. And it’s typically the males that are doing the harassing, but not all the time. But it could be a male patient that makes an employee in your practice feel uncomfortable – often with the sexual innuendo, typically unwelcome, and he keeps ramping it up, or upping his game, or he’ll touch the employee inappropriately and shrug off attempts to correct his behavior.

If the employee has brought this to your attention and that patient is still coming back to your practice, you will need a delicate way to manage this problem. Patient abandonment is a challenge. But there are ways to terminate the doctor-patient relationship while minimizing risk. If they’re not in the middle of a treatment plan, and they can’t change their behavior, they need to find another doctor.

Want to comment on that, Mike?

– Michael Sacopulos, JD

I agree. And I’ve certainly seen cases – I’m thinking not of patients, but referral sources – where someone who is referring patients to the practice acts inappropriately to a staff member. And the powers that be nod their heads and say, “Yeah, I know. I’m sorry. That guy’s a creep. But he’s harmless. Don’t worry about it. Just keep him happy.”

And that is a recipe for a lawsuit, right? You’re knowingly subjecting your staff to ongoing sexual harassment. You’ve got problems.

– Jeff Segal, MD, JD

Let’s review the take-home-messages from this particular case – this real case from Tennessee. Be careful about starting any type of sexual or emotional relationship where it can be perceived there’s a superior / subordinate power dynamic. Doing so increases the risk the person on the “receiving end” will perceive there’s a quid pro quo – meaning to keep their job or to advance, they need to have sex with their boss or their supervisor.

I say: “Just don’t do it.”

More often than not, these relationships create problems. If you must pursue a sexual relationship with this person, I would say it is ideal if you or your partner finds a new job before you become intimate. It is critical that everybody is on the same page.

And the second take-home-point is this: Look at your insurance coverage. If you don’t have Employment Practices Liability Insurance (EPLI), call your broker. Get it on your books as quickly as possible. These cases often rear their heads without any warning, and even if the allegations against you are entirely unjustified, you still must hire an attorney to defend yourself.

In conclusion – tread carefully and make sure that you have EPLI coverage. Medical Justice is equipped to help its member physicians navigate these complex medico-legal obstacles. At the worst of times, they 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.

 

Any other comments, Mike?

– Michael Sacopulos, JD

No – I think you covered it well.

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Meet Your Hosts

Jeff Segal, MD, JD

Founder & CEO, Medical Justice

Dr. Jeffrey Segal is a board-certified neurosurgeon. 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.

Michael Sacopulos, JD

Medical Justice General Counsel

Founder and CEO of Medical Risk Institute

Michael J. Sacopulos is an attorney who has been educating and advising physicians how to identify and reduce liability risk for more than 20 years. Known for his sharp wit, common sense guidance, and ability to turn mundane legal topics into entertaining educational sessions, Michael speaks nationally on privacy, security, and compliance issues.

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