Mid-Atlantic Health Law TOPICS

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Sex and Medicine Don't Mix

In June of 2003, Maryland's mid-level appellate court, in Finucan v. Maryland State Board of Physician Quality Assurance, upheld the decision of the Maryland Board of Physician Quality Assurance (BPQA) to revoke the license of Dr. Thomas Finucan. Dr. Finucan's offense was having sexual relations with several patients while serving as their primary care physician. In addition to maintaining a private practice, Dr. Finucan also had privileges at two Maryland hospitals. Topics Cover Fall 2003

While the court's ruling is hardly surprising, the decision is significant because it is the first time a Maryland court has stated that it is unacceptable for a physician to have sexual relations with a current patient, whether or not those relations occur during treatment or diagnosis, or within or outside a health care setting.

A. Background

In Maryland, a physician may be reprimanded, placed on probation, or suspended, and a physician's license may be revoked, if that physician is guilty of immoral or unprofessional conduct "in the practice of medicine." Dr. Finucan argued that having sexual relations with consenting, adult patients at times and places other than when he was actually treating them did not come within the meaning of "in the practice of medicine."

During Dr. Finucan's BPQA hearing, an expert witness stated that boundaries are important in the physician-patient relationship. He testified that physicians "must take care not to exploit the advantage physicians naturally gain over their patients."

Several years ago, in Board of Physician Quality Assurance v. Banks, Maryland's highest appellate court also examined the phrase "in the practice of medicine" in this context. In that case, Dr. Banks allegedly sexually harassed hospital personnel while he was on duty as a physician and in the working areas of the hospital, although not while treating patients.

The court concluded that Dr. Banks' conduct "ha[d] more than merely a 'general or associative relationship' to [his] capacity as a member of the medical profession." The court rejected, as illogical, Dr. Banks' argument that a physician may only be sanctioned if he or she is "in the immediate process of diagnosing, evaluating, examining or treating a patient and engaged in a non-clerical task." The court stated that Dr. Banks' conduct was deleterious to the hospital working environment and a threat to patients' well being because a "hospital environment must at all times be conducive to the practice of medicine."

In Finucan, the court went one step further than Banks, holding that the phrase "in the practice of medicine" is not limited to events that actually occur in the hospital or medical office environment. Rather, the court held that "[a]s the facts of this case graphically illustrate, a physician's engaging in a sexual relationship with a patient - whether or not it occurs in the immediate act of diagnosis or treatment, or inside or outside of a medical setting, or while the physician is technically 'on duty'- has a deleterious effect on the patient's welfare."

B. Employer Liability

Not only do these rulings impact individual practitioners, but they also underscore the need for hospitals, practice groups and other health care employers to be sensitive to observing proper boundaries in the physician-patient relationship, and to educate staff regarding sexual and other forms of harassment.

In addition to jeopardizing the license of a physician, sexual harassment can result in claims against the physician's employer. For example, in April 2003, the U.S. Equal Employment Opportunity Commission announced a settlement payment of over $5.4 million by a New York hospital arising out of a physician's sexual harassment of female employees during employment-related medical examinations.

All employers, including health care institutions, need to have an up-to-date, unambiguous policy that prohibits all forms of illegal harassment-not just sexual harassment. Employers should also periodically provide training to their employees on workplace harassment issues. Even a good policy's effectiveness is undercut if employees are not periodically sensitized to workplace harassment issues, and if the employer is not equipped to recognize and to respond promptly to incidents of harassment.

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Date

09.23.03

Type

Publications

Authors

Bacharach, Charles R.

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