Health Letter, July 2020
By Azza AbuDagga, M.H.A., Ph.D.
Despite the strict prohibition against sexual relations between physicians and their patients, some U.S. physicians cross this bright line and sexually abuse their patients, as evidenced by numerous horrific stories that have dominated headlines since the prominence of the #MeToo movement.
On May 26, Public Citizen’s Health Research Group released a comprehensive report that analyzed quantitative and qualitative data on physicians who have been reported to the National Practitioner Data Bank (NPDB), a national flagging system that includes information on medical malpractice payments, adverse licensing actions taken by state medical boards and certain clinical-privileges actions against incompetent or impaired physicians.
This report is an update of our 2016 study on this public-health problem. It also uses illuminating nonpublic information that provides details about the characteristics of physicians with NPDB reports involving sexual misconduct, the forms and details of the sexual misconduct that they committed, the characteristics of their victims and various related factors that may explain the persistence of this public-health problem in the U.S.
Our new report found that over a period of 15 years (from January 2003 through December 2017) only 1,354 physicians — 0.2% of U.S. physicians — had NPDB reports that listed “sexual misconduct” as a basis for disciplinary action or a specific malpractice-act-or-omission allegation. Our earlier study found that only 1,039 physicians had such reports from January 2003 through September 2013.
Of these 1,354 physicians, 93% had only one type of report: 77% had only licensing reports, 8% had only clinical-privileges reports and 8% had only malpractice-payment reports. The remaining 7% had more than one type of these reports.
Ninety percent of these physicians were aged 40 years or older and 94% were men.
Although physicians from every major specialty were flagged for sexual misconduct, certain specialties had more reports than others. Specifically, three specialties (family medicine/general practice, psychiatry, and obstetrics and gynecology) collectively accounted for 51% of the physicians with these reports, and each was significantly over-represented among physicians with these reports relative to their representation in the U.S. general physician population.
At least 19% of the physicians who had licensing actions and at least 17% of those with malpractice payments because of sexual misconduct had multiple victims. Moreover, at least 37% of those with clinical-privileges actions due to sexual misconduct had multiple victims, and 20% had “a history or a pattern” of such misconduct.
Most of the 1,354 flagged physicians had only patient victims. Twenty-seven percent of those with clinical-privileges actions had only nonpatient victims, who were primarily employees in the organizations where these physicians worked. Seventeen percent of the physicians with licensing reports, 14% of those with clinical-privileges reports and 50% of those with malpractice-payment reports related to sexual misconduct had patient victims with certain vulnerability factors (such as mental illness or being a minor).
Physical sexual contact or relations (including “inappropriate touching during an examination or procedure” and “rape”) and nonspecific sexual misconduct (including “boundary violation” or “harassment”) were the two most common primary forms of sexual misconduct committed by these physicians against their victims.
Fifty-two percent and 41% of the physician licensing and clinical-privileges reports, respectively, that listed sexual misconduct as a basis for action included at least one other basis for action. These additional bases included criminal convictions, violations of laws, unprofessional conduct, negligence or substandard care, patient abuse and being an immediate threat to health or safety. Twenty-one percent of the malpractice-payment reports that listed sexual misconduct as a specific malpractice-act-or-omission allegation had additional allegations, including improper management and assault and battery.
The report provided numerous examples of physicians who sexually abused their patients or others. In one case, a special-needs minor patient was repeatedly molested over four months by a psychiatrist. The victim received a malpractice payment of $256,000, but the psychiatrist received no licensing or clinical-privileges discipline. In another case, a physician had sexual relationships with 11 patients while treating them and prescribing them controlled substances. The physician was ordered to complete only 10 hours of continuing education before entering into a five-year contract with a medical foundation, where he also received voluntary treatment.
Common factors that perpetuate the problem
The proportion of physicians (0.2% of the U.S. general physician population) who faced reportable consequences for sexual misconduct as shown in our report is alarmingly incommensurate with that for physicians who self-reported engaging in this unethical behavior in survey studies. For example, an anonymous random national survey of physician members of the American Medical Association showed that 3% of the respondents reported a history of personal sexual contact (genital-genital, oral-genital or anal-genital) with one or more patients.
Although underreporting by victims is an important factor behind the discrepancy, our report illustrates several practices through which the largely self-regulated medical profession (in both state medical boards and medical peer-review committees in health care organizations) fails to curtail this problem by dealing leniently with sexually abusive physicians. Specific examples of these practices include the following:
- Rather than regarding sexual abuse as a crime that should be punished immediately, medical regulators seem to regard it as a knowledge gap that can be bridged by boundary or ethics classes, or as an illness that can be cured by psychiatric evaluation and rehabilitation.
- Medical regulators tend to use private agreements, consent decrees or suspended disciplinary actions as first lines of action against sexually abusive physicians. If these agreements fail, then these physicians are assigned chaperones or have their licenses or clinical privileges limited or restricted until they are educated or rehabilitated. In fact, we discovered that 510 (38%) of the 1,354 physicians with sexual-misconduct reports continued to hold active licenses and clinical privileges in the states where they were disciplined or had malpractice-payment reports. We also found that out of the 317 physicians who had clinical-privileges actions or malpractice-payment reports because of sexual misconduct, 221 (70%) were not disciplined by any state medical board for their harmful behavior.
- Medical regulators often permit sexually abusive physicians to resign, surrender their licenses or clinical privileges or retire to avoid revocation actions — allowing them to move to other health care organizations or obtain licenses in other states.
- Medical regulators and other reporting entities tend to conceal sexual misconduct in the NPDB by using a nonspecific basis for action, such as “unprofessional conduct,” in lieu of “sexual misconduct” when they must report them to the NPDB.
Our report acknowledged several limitations. One such limitation is that the NPDB does not include information about sexually abusive physicians in organizational entities that exploited loopholes in the Health Care Quality Improvement Act, the law that established the NPDB, to shield the nature of misconduct perpetuated by these physicians; failed to name these doctors; or failed to report them altogether to the NPDB. Another limitation is that the qualitative variables that we extracted from the NPDB (such as history of physician sexual misconduct, the victims, the nature of misconduct and the detailed circumstances of misconduct) differed in completeness and depth in the reports that we analyzed. Therefore, the absence of information about these variables in certain reports does not necessarily mean that such information was not available to the report-filing entities. Nonetheless, the NPDB represents the only national-level system for the kind of data analyzed in our report.
Notably, our study period largely predates the prominence of the #MeToo movement, which started in October 2017. Because it often takes a long time for medical regulators to take actions and for malpractice insurers to process malpractice payments, it may be too early to assess whether the #MeToo movement has impacted the reporting trends for physician sexual abuse. However, a separate analysis that we conducted on physician reports in the NPDB showed that only an additional 177 physicians have had been flagged for sexual misconduct from January 2018 through December 2019.
Conclusion and recommendations
Our findings about the paucity of physicians held to account for sexual misconduct against their patients and how regulators often deal too leniently with abusive physicians require immediate action to address this public-health problem.
Specifically, the report renewed our call for replacing the term “sexual misconduct” currently used in the U.S. medical community with the term “sexual abuse” when referring to any physician conduct that involves any sexual action, touching, behavior or remarks of a sexual nature by the physician towards a patient.
We also emphasized that physician sexual abuse of patients should be classified as “never events”: No patient should ever experience any form of sexual abuse, or fear of being subjected to such behavior, by a physician. Therefore, we implored the medical profession, lawmakers and state medical boards to implement a zero-tolerance standard against sexual abuse of patients, as has been adopted by other countries, including parts of Canada and New Zealand. The report offers several other recommendations.
Failing to act on our recommendations means that these regulators continue to fail the public by tolerating physicians who sexually abuse patients and others, thus fostering preventable and unnecessary pain for the victims of these physicians.