By: Gregory J. Radomisli, Esq. and Emma B. Glazer, Esq.
Wednesday, March 21, 2018
The recent #MeToo movement brought heavy public scrutiny and serious allegations of sexual assault to professionals in a variety of industries, including the medical field. The conviction and sentencing of USA Gymnastics doctor, Larry Nassar, for unlawful sexual practices with underage patients put the medical profession under the spotlight with respect to when doctors and medical professionals engage in unlawful sexual practices with patients and how state and medical entities respond to such complaints. The quest for accountability has also focused on the “complicit” participation of those who were aware of such conduct, but failed to report it.
A sexual relationship between a physician and a patient is barred by the American Medical Association’s Code of Ethics, as such a relationship can detract from medical treatment, exploit the physician’s power over the vulnerable patient, be harmful to the patient and impair the physician’s ability to objectively evaluate and treat the patient. The New York Court of Appeals has held that it is medical malpractice for a physician to enter into a sexual relationship with a patient, even if it is between two consenting adults (Dupree v. Giugliano, 20 N.Y.3d 921 (2012)). Related to this, the New York Penal Code deems patients incapable of consenting to sexual relationships with a health care provider if the sexual conduct occurs during a treatment session or examination (N.Y. Penal Code §130.05(3)(h)). New York’s Education Law’s definition of professional misconduct includes “any physical conduct of a sexual nature” between a psychiatrist and a patient.
When psychiatrists or psychologists are informed by their patients in the course of treatment that another physician has sexually assaulted his or her patient, the question becomes whether the confidentiality that exists between a physician and a patient may be broken to allow the physician to report the wrongdoing. Generally, the privilege between a patient and his or her doctor, including mental health providers, is protected, as it is understood that patients will be more candid about their health when they know their information will be kept confidential. However, in limited circumstances, that privilege may be suspended and become secondary to greater public interests, such as in situations of imminent danger or suspected child abuse.
Notably, New York State’s Office with Professional Misconduct requires all licensed health professionals to report other medical professionals who they suspect of misconduct. Moreover, if a medical professional suspects misconduct and fails to report it, the failure to report it is considered misconduct in and of itself.
N.Y. Public Health Law §230(11)(e) also states that the reporting statute does not require any physician to violate a physician-patient privilege, and therefore, “no physician shall be required to report any information to the board which such physician has learned solely as a result of rendering treatment to another physician.” This seems to indicate that if a physician such as a psychiatrist learns of a sexual relationship between a physician and patient from the patient, he or she must report such misconduct, but if the psychiatrist learns of the relationship from the abusive physician whom the psychiatrist is treating, he is bound by confidentiality to his patient.
Mental health counselors must be mindful of their obligation to report sexual relationships between doctors and patients about which they have been notified. As long as the patient provides the information to a psychiatrist or psychologist, the counselor can report the misconduct without violating the physician-patient privilege.
Gregory J. Radomisli, Partner, and Emma B. Glazer, Associate, are attorneys in the Medical Malpractice Defense Practice Group at Martin Clearwater & Bell LLP. For more information, visit mcblaw.com.