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Reporting Obligation

Physicians' Reporting Obligations in Sexual Misconduct Cases

by: Kent G. Harbison, J.D.
Fredrikson & Byron, P.A.

The Report of the Consultation Group on the Disposition of Sexual Misconduct Complaints was submitted to the Minnesota Board of Medical Practice at the Board's July 1995 meeting. The group was established by the Board to make recommendations to all state Medical Boards regarding proper disposition of complaints of physician sexual misconduct. The group heard testimony and reviewed evidence from 11 different experts from the U.S. and Canada and was assisted by several Minnesota physicians and representatives of the Board. This was apparently the first occasion any state medical licensing board had undertaken such a process.

The report concluded with 24 separate recommendations for all state medical boards. Several of the recommendations have already been adopted, either by statute or policy, in Minnesota. One example is Recommendation 12, which provides:

"That state medical board discipline professionals who fail to report colleagues of whom they have personal knowledge of misconduct."

(The rationale for this recommendation was that, "The Consultation Group felt that sexual misconduct is an extreme violation of patient trust and should not be tolerated within the profession.")

Minnesota law has for several years acknowledged the spirit of Recommendation No. 12 in two respects. First, Section 146.091, subd. 1 of Minnesota statutes provides several grounds for concluding that sexual misconduct by a physician is a violation of the Minnesota Medical Practice Act. Subsection (g) prohibits a physician from engaging "in any unethical conduct; conduct likely to deceive, defraud, or harm the public, or demonstrating a willful or careless disregard for the health, welfare or safety of a patient..."

Subsection (k) prohibits "unprofessional conduct," including "any departure from or failure to conform to the minimal standards of acceptable and prevailing medical practice..." Subsection (t) prohibits "conduct with a patient which is sexual or may reasonably be interpreted by the patient as sexual, or in any verbal behavior which is seductive or sexually demeaning to a patient."

Second, Subsection (u) authorizes the Board to impose disciplinary sanctions against a physician who fails to make the reports required by Section 147.111: "A licensed health professional shall report to the Board personal knowledge of any conduct which the professional reasonably believes constitutes grounds for disciplinary action under Sections 147.01 to 147.33 by any physician." The only exception to this reporting requirement is, "If the information was obtained in the course of a physician-patient relationship if the patient is another physician and the treating physician successfully counsels the other physician to limit or withdraw from practice to the extent required by the impairment."

Consequently, it has been the law in Minnesota for several years that physicians with "personal knowledge" of any conduct by another physician that violates the Medical Practice Act must report that information to the Board. A physician who does not file such a report runs the risk of being disciplined by the Board.

There are various scenarios to consider. The most obvious one is when a physician engages in some type of sexual act with a patient during a time when the physician-patient relationship exists. What if the sexual contact occurs before or after the existence of the physician-patient relationship? There could still be a reporting obligation, depending on the circumstances and the patient's vulnerability. What if the sexual contact were consensual by the physician and the patient? That might still be a reportable activity, since the line between consent and abuse/coercion can sometimes be cloudy. What if there is no physical "conduct" but only language that has sexual implications? Is a verbal boundaries violation equivalent to sexual misconduct? Probably not, if the invasion of a patient's boundaries is of a non-sexual nature but is considered by the patient to be personal or private. (In some cases even a non-sexual "boundaries" violation could be a basis for a report and discipline, though the violation may not strictly be sexual misconduct.) Is it necessary that there be a criminal conviction of sexual misconduct by the physician as a pre-requisite to reporting the physician to the Board? Probably not, since the reporting obligation is triggered only by personal knowledge of the misconduct. What constitutes "personal knowledge?" It obviously would include the actual witnessing of the misconduct by another physician, but it would not necessarily include a secondhand allegation of misconduct by the patient or some third party.

What should a licensee do upon hearing a second-or-third-hand report that another physician is having an "affair" with a patient? What about a report that a clinic staff member received a complaint from a patient alleging inappropriate sexual contact by a physician? In either situation it probably would be best for the physician who receives the report to undertake at least some minimal inquiry to determine its validity. Certainly if the physician who is the subject of the report admits that it is true, that would constitute personal knowledge by the other physician, On the other hand, if the physician denies the allegation and there is no other reasonable evidence to determine its validity, this probably would not constitute personal knowledge. The extent to which a licensee should probe beyond the initial allegation varies with the circumstances and credibility of the persons involved.

As most physicians probably know, after a complaint is filed, the Board conducts an investigation to gather more relevant information about the alleged misconduct. The investigation could culminate in a dismissal, some type of disciplinary sanction, or a non-disciplinary action by the Board.

It may be that sexual misconduct by some physicians could be the result of an addiction, mental illness or other impairment. A physician suffering from such an impairment might assume that he or she would qualify for non-disciplinary remedies under the Health Professionals Services Program (HPSP) established in 1994. The HPSP was set up to help "impaired" physicians (e.g., those who are alcoholics, chemically dependent, etc.) Get diverted into a treatment program without public discipline. This diversion program, however, is not available to those who are alleged to have engaged in sexual misconduct.

A critical fundamental point is that a physician who has personal knowledge of sexual misconduct by another and fails to report it can also be the subject of a disciplinary investigation and action by the Board. This does not mean that a physician must file a report to the Board each time he or she hears a report, rumor or other allegation about another physician. This would not only increase unnecessarily the Board's investigative case load but could also create an unnecessary hardship and embarrassment for the physician who is the subject of the inquiry. It does mean, however, that a physician who becomes aware of an allegation of sexual misconduct by another physician probably has a duty to make at least some reasonable inquiry to determine its validity and then, using good judgement and common sense, to decide whether the allegation is something that ought to be reported to the Board. The failure-to-report test probably is whether the physician has an explanation that makes sense to the average reasonable person as to why he or she did not file a report. There must be a balance between the needs to protect vulnerable patents from clear sexual misconduct and to protect a physician's reputation and career from spurious allegations.

The duty to report, of course, applies not, only to personal knowledge of another physician's sexual misconduct but also to any conduct that violates the Minnesota Medical Practice Act. A physician who has personal knowledge that another physician has violated the Act in any number of ways could also face a disciplinary sanction for not reporting the information to the Board. When in doubt as to whether a report should be made to the Board, licensees should rely on their personal or corporate attorney for advice. An uninformed assumption about the duty to report could lead to bigger problems.

Source: Minnesota Board of Medical Practice Update Newsletter, Spring 1996

The material presented in the article is for informational purposes only and does not represent a statement of Board Policy.