Sexual Misconduct: Legal and Licensing Ramifications to the Acupuncture Profession, Part I
By Shawn Steel, JD
A growing concern confronting the acupuncture community is the increasing volume of complaints by females against male acupuncturists. If the facts are clear, there is little sympathy for the doctor.
The California Acupuncture Board has a history of overturning the recommendation of its own attorneys, overruling a moderate sentence and revoking the license of the physician charged.
Ranges of Sexual Misconduct
The Medical Council of New Zealand divided the range of sexual misconduct into three categories:
A. Sexual impropriety: lowest level of misconduct, non-physical contact of a patient that is "disrespectful in manner and sexually demeaning." This includes inappropriate jokes, crude gestures, printed and posted "dumb blonde" jokes, or demeaning comments about a patient's undergarments.
B. Sexual transgression: inappropriate touching of a patient stopping just short of an overt sexual act. This issue may occur with unnecessary breast or genital examinations or trigger point therapy near the breast or genital areas.
C. Sexual violation: a sexual act between patient and doctor. There is no distinction between which party initiated the contact or whether the act was consensual.
Relations with Current Patients
Perhaps one of the more confusing issues is dating a current patient. It may seem innocent and above board. However, sexual relations with current patients under any circumstances are neither appropriate nor ethical. The American Medical Association in 1991 made it clear: "Sexual contact or a romantic relationship with a patient concurrent with the physician-patient relationship is unethical."
Certainly, there are occasions in which a doctor and patient may develop a true mutual affection. In those cases, the doctor must take action to terminate the doctor-patient relationship. This means that the doctor also has to remove any fiduciary duty, including a duty to care for the patient. If the patient still has symptoms, there must be a satisfactory referral to the patient. In this case, the doctor still assumes a risk in case the patient claims later that the referral was disingenuous and designed to exploit the relationship.
Three reasons are offered as to why the doctor may still have legal problems after terminating the doctor-patient relationship:
Sexual misconduct usually involves the exploitation of the patient;
Sexual misconduct places the clinician's wishes ahead of the patient; and
A treatment relationship contaminated by sexual relations between the parties loses objectivity and can thwart the conscientious care of the patient.
Doctors May Be Liable for Their Employees' Actions
A patient sued her doctor because of the actions of a massage therapist. The patient alleged the doctor hired the therapist without a specific background check. The massage took place in a closed room. The patient alleged that during the single massage, the therapist massaged her feet and legs, lifting and spreading her legs while doing so. Finally, the patient alleged that the therapist massaged around her breasts until she told him to stop. After the doctor was told the next day, he immediately fired the therapist.
The doctor was sued for negligent retention, negligent training and negligent supervision. The massage therapist had no malpractice insurance. During the lawsuit, it was discovered the doctor knew of a couple prior occasions in which the actions of the therapist were questionable. The case was settled for $75,000. If this case was presented to the acupuncture board and the doctor had a history of repeated complaints, his licensing would be questioned.
The political climate is toxic for the male practitioner if he is not cautious about the perceptions of his female patients. In my next column, we will discuss false accusations and simple steps that can eliminate sexual misconduct charges.
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