In the wake of the #MeToo movement, allegations of any type of sexual misconduct are being treated with greater seriousness. However, not every report of sexual misconduct is true — and like any wrongdoing, there are degrees of physician sexual misconduct, from microaggressions to sexual assault to coercion. For some medical professionals, even a complaint about sexual misconduct can be career-ending. In California, the board that oversees licensing vigorously investigates doctors who are accused of sexual misconduct. If a healthcare professional is found to have engaged in sexual misconduct — or even to have had a consensual sexual relationship with a patient (in some cases) — it could have a devastating impact on their career. With far-reaching consequences including financial ramifications, criminal charges, and personal impact on family relations.
In California, any type of sexual abuse, misconduct or relations with a patient is considered unprofessional conduct. It is grounds for disciplinary action for anyone licensed by the state, including both doctors and nurses. Sexual misconduct is broadly defined under California law and includes sexual relations with a patient, client or customer. Business and Professions Code 726.
For physicians, engaging in any type of sexual contact with a patient (including a former patient, if the relationship was terminated primarily to engage in these acts) is a criminal offense. It is punishable by up to 6 months in county jail and/or a fine of up to $1,000. If the doctor is convicted of multiple acts with two or more victims, it is punishable by a period of imprisonment in the county jail of between 16 months and 3 years and/or a fine of up to $10,000. Business & Professions Code 729.
Importantly, consent is not a defense to the crime of sexual exploitation of a patient. In other words, even if a patient voluntarily agrees to enter into a sexual relationship with a physician, the doctor may still be charged with a crime.
According to the Medical Board of California (MBC), the licensing board has higher ethical standards than the legal system. In other words, even if the alleged sexual misconduct is not considered a criminal offense, it may still result in disciplinary action. The MBC has a “zero tolerance” policy for any intimate or sexual relationship between a physician and patient, believing it to be both illegal and unethical.
Sexual misconduct extends beyond having a relationship with a patient. A physician who fails to use appropriate disrobing or draping practices may be found to have violated the Board’s ethical standards. So may a doctor who conducts an intimate exam in the presence of anyone else, including a spouse or medical student, without the patient’s informed consent. And simply asking a patient for a date is grounds for serious disciplinary action. Even when a doctor and patient engage in what they consider a consensual relationship, the physician is likely to face disciplinary action.
Physicians are held to a higher standard and may be held accountable for creating a hostile work environment, which includes gender harassment, both verbal and non-verbal behaviors that treat women or men as a second-class through hostility, objectification or exclusion. Unwanted sexual attention can include unwelcome sexual advances such as a lingering hug to a colleague. Moreover, sexual misconduct may also include the Quid Pro Quo sexual advances which can be explicit – “Sleep with me or you will lose your position here”—or indirect – “Let’s go out for a drink and discuss your position here at the hospital.” In both cases, the person in power is using the position to pressure an employee for sexual favors. And if the threatened employee is fired, demoted, denied a promotion or feels forced to resign because of his/her refusal of the unwanted advance, then that is also considered Quid Pro Quo sexual harassment.
Even actions that take place outside the medical office or hospital setting, such as medical conferences or business travel, can lead to complaints of sexual misconduct. The test is that if a reasonable person (regardless of gender) would find the behavior or environment sexually intimidating or offensive it may be construed as sexual harassment and should be stopped to avoid disciplinary action from the Hospital and Medical Board.
In many cases, an investigation into sexual misconduct by the MBC starts with a complaint or criminal conviction. However, the MBC also accepts complaints from patients, family members, coworkers, employers, Hospital HR, Medical Directors, Credentialing Committee and members of the public. This means that the board may receive allegations of sexual misconduct (including consensual sexual relationships) from other sources.
It isn’t uncommon for a person to learn of a relationship between a physician and/or patient or staff member and the physician’s spouse and decide to report it to the board prior to divorce proceedings. Alternatively, after a relationship goes bad, the patient, former patient or staff member may report the doctor to the board. Even if the relationship was completely consensual, these types of complaints are still vigorously investigated by the MBC as the relationship is a violation of both the law and ethical standards due to the imbalance of power between an MD and staff/patient.
If necessary, the board will refer the case to law enforcement for prosecution. Because of this possibility, it is vital to have an experienced California healthcare license defense attorney who understands that a board investigation could result in criminal charges — and who will work to protect you from all angles. At the time of the requested interview, counsel can present evidence refuting the complaints — this may include witness statements both factual and/or character, and expert opinions to contradict the allegations. If the MBC determines that there is no evidence to substantiate the complaint, then the matter will be closed.
For minor violations, the MBC may issue a citation or fine. However, because sexual misconduct is generally considered a major violation of the Medical Practice Act, if it is substantiated, the complaint will likely be referred to the Office of the Attorney General to determine if there is cause to file a formal Accusation, which is formal legal charges requesting that discipline be imposed against the doctor’s license.
If the matter proceeds to this stage, there are two ways that the case can be handled. First, you may reach an agreement with the board and the Attorney General’s Office, where you agree to the charges and accept the discipline (which could include reproval or a suspension or revocation of your license). Second, you can choose to defend yourself against the charges, and proceed to a formal hearing before the California Office of Administrative Hearings.
At the hearing, you will have the opportunity to present a defense to the charges against you. While this may be challenging in a sexual misconduct hearing, some medical professionals chose to go to a hearing after careful consultation with their lawyer. This may be the best option in situations where the accuser has filed a false report.
There are also some situations where a physician may have acted inappropriately, but their conduct did not rise to the level of sexual misconduct. For example, a patient may claim that a doctor was too “touchy” — a subjective belief that may not be supported by evidence. In other cases, a patient or staff member may make a complaint because a doctor sent texts that were flirty or sexual in nature, which may not be sufficient to warrant disciplinary action.
After the hearing, the administrative law judge will issue a proposed decision. This decision will then be sent to the MBC, which can adopt, modify or reject the decision. Under California law, you are entitled to appeal a final decision or file a Petition for Writ of Mandamus in Superior Court to challenge the validity of the decision. A skilled San Diego healthcare license defense attorney can help you with this process.
In 2019, California passed a new law that requires doctors (naturopathic doctors, chiropractors, acupuncturists and podiatrists) to disclose to patients if they have been disciplined for sexual abuse, misconduct or relations with a patient. This requirement makes the stakes for this type of complaint even higher, as all current and future patients must be informed about any discipline related to sexual misconduct. For this reason, it is vital to work with an experienced physician license defense lawyer.
At the Law Office of Nicole Irmer, we have been defending medical professionals in sexual misconduct proceedings with state licensing authorities for nearly two decades. Ms. Irmer provides quality representation and licensing defense to doctors facing disciplinary actions and/or criminal prosecution.
If an allegation of sexual misconduct has put you in danger of losing your license to practice medicine, we will represent you throughout the process. We take a proactive approach to your defense, priding ourselves on anticipating and mitigating any issues that might threaten your license. If you are under investigation for sexual misconduct, please contact us right away at (619) 237-6130.