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Sexual Assault & Medical Malpractice
Sexual Assault & Medical Malpractice
Sexual assaults by medical providers have been dominating the headlines in recent months. We’ve seen it from time to time over the years, but it is in the headlines now— more than ever—because of movements like MeToo and Time’s Up.
Medical Ethics & Sexual Misconduct
The American Medical Association’s Principles of Medical Ethics upholds its members to “providing competent medical care, with compassion and respect for human dignity and rights,” (AMA, 2014-2015). Although the data indicates that most physicians practice medicine with integrity (Federation of State Medical Boards [FSMB], 2014), sexual misconduct is one of the common reasons for disciplinary action by medical boards, (Arora, Douglas, & Dorr Goold, 2014; Grant & Alfred, 2007), sagepub.com.
The FSMB defines “sexual violations” as “engaging in any conduct with a patient that is sexual or may be reasonably interpreted as sexual . . . .” Data indicates that sexual violations cause significant harm to patients. Some data suggests that “patients who enter into “consensual” sexual relationships with their physicians are typically not mentally healthy, and these encounters occur most often where considerable disparities in power, status, and emotional vulnerability exist between physician and patient, rendering consent inapplicable,” (Carr, G.D., Journal of the Mississippi State Medical Association, 2003).
Sexual misconduct includes more than sexual intercourse with patients. It also includes masturbating in the presence of patients, genital contact, and rape or sodomy, (FSMB, 2010). The psychological effects of sexual misconduct for patients include depression, anger, drug and alcohol abuse, trust issues, and posttraumatic stress symptoms. These lasting effects, among others, are like those observed in sexual violence survivors, (Centers for Disease Control and Prevention, 2016).
The Atlanta Journal-Constitution newspaper published an article in July 2016, revealing the findings of a year-long investigation which uncovered thousands of cases of physician sexual abuse in every state in the U.S. The article refers to another study by Azza AbuDagga, a health service researcher. AbuDagga, along with her colleagues, performed a 10-year study, ending in 2013, in the National Practitioner Data Bank. (NPDB). AbuDagga’s study concluded that “two-thirds of those doctors with strong evidence of sexual misconduct against them had not been disciplined by medical boards. There's no interest in having physicians identified for the public," AbuDagga noted. AbuDagga says her research convinced her that medical boards permit some doctors with evidence of sexual misconduct to continue endangering patients or staff members. She argues that the system for reporting inappropriate physician conduct appears to be fractured.
The NPDB was established by Congress to, in part, collect and disclose to authorized users’ negative information about health care practitioners. It is meant to be used by hospitals and other health care organizations before hiring a doctor.
Sexual assaults are indeed criminal matters:
USA Gymnastics and Michigan State University physician Larry Nassar, who plead guilty to 10 counts of first-degree criminal sexual conduct was sentenced to 175 years in prison for decades of abuse, cnn.com.
A former Washington D.C. dentist was sentenced to 16 1/2 years for sexually assaulting five patients and one employee between 2010 and 2014, Washington Post.
A Towson, Maryland doctor has been charged with second-degree rape and other sex offenses after two patients accused him of assaulting them in his clinic. In addition to second-degree rape, he faces charges including sexual abuse of a minor and second-degree assault, The Baltimore Sun.
A Manhattan, New York ER doctor was sentenced to two years for sexually abusing patients, NY Times.
Sexual Assault as a Civil Matter (medical malpractice)
While sexual assault is undeniably a criminal matter, it civilly falls under the “umbrella” of medical malpractice. Generally, the medical practice/hospital is a potential defendant because they knew, or should have known, of the potential for a sexual assault by the doctor; which is negligence. Negligence claims are being brought against the medical provider, and/or the practice/hospital for not properly supervising the doctor, particularly when the practice/hospital has been on notice for prior complaints against the doctor.
Maryland, 2014: Nikita Levy was a gynecologist who worked for more than two decades at a Johns Hopkins clinic in East Baltimore. In 2013, amid a police investigation into the allegations against him, the doctor killed himself at age 54. Levy was believed to have secretly photographed or videotaped hundreds of women during exams. The hospital settled for $190 million.
North Carolina, 2018: Two women who say they were molested by a Charlotte physician have been awarded more than $2 million by a Mecklenburg jury. The judgment against Dr. Fidelis Edosomwan of Waxhaw came at the close of a 2 1/2-week trial. His accusers each received $1.1 million in actual and punitive damages from the physician.
Georgia, 2015: An 18-year-old female patient was sexually assaulted while undergoing a dental procedure under anesthesia. The patient sued the dental practice, alleging a male nurse anesthetist violated her while unconscious. The nurse anesthetist, who was employed by the practice as a contractor for two years, also faced criminal charges for the assault of 19 patients and was ultimately given a life sentence. In her civil suit, the patient claimed profound psychological trauma from the assault. A jury awarded the patient over $3 million in damages.
Delaware, 2012: Earl Bradley, a former Delaware pediatrician was convicted in 2011 of sexually assaulting former patients. A civil class action suit of the more than 900 children Dr. Bradley assaulted over the years resulted in a $123 million settlement.
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