Physicians and Surgeons

Continuing Concerns About Sexual Misconduct

Excerpted from July 2004 Action Report
By Joan Jerzak, Chief of Enforcement

The board continues to receive a significant number of complaints alleging sexual misconduct - in fiscal year 00/01 - 133 complaints; fiscal year 01/02 - 134 complaints. The complaints range from inappropriate remarks to improper touching to illegal sexual relationships to sexual assault and rape.

Allegations of sexual misconduct have always been one of the highest priorities of the board's Enforcement Program and can result in criminal prosecution as well as disciplinary action against the physician's license.

If complaints are substantiated to a level of proof which is clear and convincing, discipline for a violation of Business and Professions Code section 726 - sexual misconduct - can range, minimally, from seven years of probation (with various specified terms and conditions) to license revocation.

A violation of section 729 - sexual exploitation - can result in administrative and criminal charges being filed against the licensee. Further, Business and Professions Code section 2246 was added in January 2003, stating any proposed decision, which contains a finding of fact that the licensee engaged in multiple acts of sexual exploitation, "shall contain an order of revocation. The revocation shall not be stayed by the administrative law judge."

Generally, complaints fall into two categories: those against therapists and those against all other practice specialties. Complaints against therapists often include boundary issues alleging some type of improper relationship with the patient. In addition, conversations between a physician and patient can be taken out of context by the patient. Physicians should use caution when questioning patients about their history, especially when their sexual history is discussed, as some patients have interpreted the discussion as sexual advances by the physician.

Complaints against non-therapist physicians typically allege improper examination of the breasts or genitalia. Sometimes, the board receives complaints that a patient simply did not understand what the doctor was doing and was too embarrassed to ask questions.

Many patients are unfamiliar with examination procedures and become concerned when a physician offers a modality or treatment that differs, in any way, from their prior examination experience. Cultural differences may further contribute to this communication breakdown.

During the examination, physicians are encouraged to describe the treatment to the patient at an appropriate level of comprehension, to promote understanding.

While third-party chaperones are not mandatory when examining patients, they may help avoid misunderstandings and patient complaints. However, if a chaperone is used, he or she should be encouraged to pay attention to the patient or the particular procedure being performed.