A significant part of my business is defending doctors, nurses, massage therapists, physician assistants and other health care providers against claims by women that there was inappropriate sexual conduct during an office or hospital visit. I want to make it clear that these claims are extremely dangerous for the health care provider and can effectively put an end to a career, whether you are guilty or not. So, pay attention to what I am saying and never put yourself in the position of having to deal with this issue.
The Incident
The usual case commences when the patient makes a complaint to the employer involved. I find that the complaints often come shortly after the visit, in writing and they are often very detailed. Immediately, the employer does some sort of investigation, usually a very brief inquiry, and then fires the provider within a few days. If the provider does not have a written contract he can be fired “at will.” If there is a written contract there might be an ability to contest the firing within the organization, but the firing is almost always upheld. The employer fires the provider for a very good reason—if any sexual issue arises in the future in the form of a lawsuit by another patient, the employer will be the target of the lawsuit with the very believable claim that the employer was “on notice” of the bad behavior of the employee/provider but continued to employ him. That claim will usually play well in front of a jury. In fact, the case will no doubt be settled out of court by the employer’s insurance company as the insurer will be afraid of a massive verdict which it will have to pay. Also, please note that the insurance premium to the employer will skyrocket in this scenario and that alone is a perfect reason to fire the employee as soon as possible.
Searching For a Job After The Incident
So now the health care provider is out of work and looking for a job. How do you think that job search will go? The application for employment will ask where you worked last and why did you leave. If you lie about it, you have now committed professional misconduct and if your new employer finds out about it, you will be fired from that job for lying. So, you tell the truth. You say you were wrongly accused of improper sexual conduct and therefore you were wrongly fired. I am afraid to tell you that most prospective employers will make the decision that you are too much of a danger (RISK) to hire and will tell you that they have found another person to fill the position. In the end, you might very well find a job, assuming you have professional qualifications that make you valuable, but that job may in a location that you really are unhappy about and you very well might see a significant pay cut.
OPMC or OPD Hearing
Regardless of how your job search goes, you will be reported to the Office of Professional Medical Conduct (OPMC) or the Office of Professional Discipline (OPD), depending on the type of license you have. You will be invited down to an interview to tell your side of this story. As you may know, this interview is really important because your license is directly on the line. If you cannot convince OPMC or OPD that this claim is probably not true, then they will bring charges of unprofessional conduct against you. This will lead either to you signing some type of consent order, which may effectively put you out of business, or you will have to defend yourself at a hearing. Believe me, hearings of this nature are truly unpleasant and can very well end up with the revocation of your license. And, trying to have your license restored after a finding that you did commit unprofessional behavior of a sexual nature with your patient will be a very, very, very difficult task.
But Wait, There’s More
This type of behavior can very well be the subject of a criminal prosecution. If that occurs, you are in for a very difficult time. First, the cost of your defense to the criminal action will be exceedingly high, perhaps to the point of bankruptcy. There is always an enormous amount of pressure on you to plead guilty to anything that will keep you out of jail. If you do plead guilty to a felony or a misdemeanor that is a “crime” in New York State and, as you can imagine, your employment prospects in the future are dim, to say the least. Also, the guilty plea will put you with OPMC or OPD as any “crime” is, by definition, professional misconduct.
There is also the possibility of a civil suit against you for assault. This is an intentional tort in the law and will not be covered by your liability insurance carrier. Therefore, you will have to pay your own attorney to defend you and will be liable to pay any judgment against you out of your own pocket.
Best Practices
So, what to do? First, do not let this happen in the first place. If at all possible have a chaperone with you anytime you are with a female patient. Have the chaperone sign in the chart that he or she was in the room at all times. If you cannot have a chaperone be certain to clearly note what took place, especially the extent of the physical examination. If someone is with the patient be certain to document that presence and clearly identify that person by name. If a mother and daughter are together, make sure that you make both of them part of the entire encounter because it will be difficult for one of them to say something happened when the other was in the room.
If there is a complaint, be certain that you forthrightly stand your ground and state, unequivocally, that you did not inappropriately touch the patient. You cannot do this effectively if you say that you do not remember the incident. This tactic is often taken by people who are afraid to answer questions and just want the questioning to be over. But it is always seen as almost an admission of guilt because everyone should remember exactly what were the circumstances when there is an accusation that is this serious. Please bear in mind that if you have complaints of this nature from two or more women, your defense becomes extremely difficult, as you can readily understand.
Lastly, please retain an experienced attorney as soon as possible to help you with this situation. As is obvious, there are many ramifications that arise out of a sexual misconduct claim and you must be ready to deal with this issues to prevent having your life completely ruined.
