Engaging in sexual activity with patients is, as we say in the legal field, a very bad idea. Sexual misconduct can trigger severe disciplinary action by the Texas Board of Chiropractic Examiners (“TBCE”) and civil liability for damages. Doctors who behave responsibly with patients can nevertheless face liability for sexual discrimination and harassment in the workplace. And even doctors whose personal conduct is unassailable can face liability for the actions of their employees.
The risks are real. Learn how to protect yourself.
SEXUAL MISCONDUCT WITH PATIENTS
TBCE Rule 78.1 prohibits sexual misconduct with a patient within the chiropractic/patient relationship. “Sexual misconduct” is defined broadly to include both sexual intimacy (any conduct that is intended to cause or reasonably interpreted to cause stimulation of a sexual nature) and sexual impropriety (any behavior, gestures, statements, or expressions through any medium of communication towards a patient which may reasonably be interpreted as inappropriately seductive, sexually suggestive or demeaning).
The following are examples of prohibited sexual intimacy:
- sexual intercourse;
- genital contact;
- touching breasts;
- masturbation; and
- any bodily exposure by licensee of normally covered body parts.
The following are examples of prohibited sexual impropriety:
- inappropriate sexual comments about or to a patient or former patient including sexual comments about an individual’s body which demonstrate a lack of respect for the patient’s privacy;
- requesting unnecessary details of sexual history or sexual likes and dislikes from a patient;
- making a request to date a patient; and
- initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee.
There is one affirmative defense to disciplinary action enshrined in rule – if the patient is “no longer emotionally dependent on the licensee when the sexual impropriety or intimacy [begins] and the licensee [terminates] his or her professional relationship with the person more than three months before the date the sexual impropriety or intimacy [occurs].”
Notably, the following excuses are not a defense to disciplinary action:
- the patient’s consent;
- the activity occurred outside professional treatment sessions; or
- the activity occurred off the premises regularly used by the licensee for the professional treatment of patients.
HOW TO PROTECT YOURSELF FROM PATIENT COMPLAINTS
Thoughtful, proactive behavior can minimize your risk of patient complaints.
- Communicate clearly with your patients before performing procedures in sensitive areas. Most complaints allege unwanted and inappropriate touching of breasts, buttocks, or genital areas. Before palpating pectoral muscles or lymph nodes, or treating iliopsoas muscles or anterior hip flexors, tell the patient what you’ll be doing and why.
- Consider having a chiropractic assistant present when treating patients of the opposite sex. If you don’t have a chiropractic assistant, consider leaving the exam room door open.
- Do not ask patients to disrobe unless it is absolutely necessary. If you determine that a patient should disrobe, Rule 78.1 (1)(E) obliges chiropractors to “respect a patient’s dignity at all times and […] provide appropriate gowns and/or draping and private facilities for dressing and undressing.”
In 2017, the Equal Opportunity Employment Commission (“EEOC”) recovered sexual harassment damages totaling over $46 million for aggrieved employees – and this amount only includes cases that were settled with the EEOC and does not reflect monetary benefits obtained through litigation or other means. Put simply, sexual harassment is a major problem for employers.
There are two types of sexual harassment: quid pro quo harassment (in which the employee faces a negative employment consequence for refusing to submit to a harasser’s demands) and hostile work environment harassment (gender-based conduct that is pervasive or severe and interferes with an employee’s work performance).
Even jokes about exchanging sexual favors for a raise have led to employee complaints against chiropractors for quid pro quo harassment. And doctors may be liable for hostile work environment harassment to an employee even if he/she was not the target of the inappropriate behavior.
HOW TO PROTECT YOURSELF FROM PATIENT COMPLAINTS
In general, doctors should be wary of the following:
- Making disparaging comments to women;
- Displaying sexually explicit or female-objectifying materials in the office;
- Showing employees and co-workers inappropriate images on your phone or other device;
- Using sexually explicit language in the office;
- Making inappropriate comments to female employees about their appearance (e.g., telling a female employee that she “has a good body”);
- Staring at employees in a sexually suggestive manner;
- Asking sexual questions of an employee;
- Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person; and
- Making offensive comments about someone’s gender or sexual identity.
In the wake of recent scandals in Hollywood and the burgeoning #metoo movement, our culture is reconsidering the “rules” of workplace behavior. Actions that may have seemed appropriate in previous eras are now considered taboo. Doctors should exercise caution to avoid liability for sexual harassment.
Sexual misconduct – it goes without saying – should be strictly avoided. Doctors should familiarize themselves with TBCE’s (justifiably) broad definition of the term and employ the common-sense strategies in this article to mitigate the risks of patient complaints.