"Calling Dr. Love": the physician-patient sexual relationship as grounds for medical malpractice - society pays while the doctor and patient play.

• Author: Puglise, Scott M.

1. INTRODUCTION

   Sex. A simple word encapsulating a plethora of emotions. By now everyone is familiar with the President Clinton-Monica Lewinsky scandal, or ZipperGate as it is more affectionately labeled by the press. The President was caught literally "with his pants down" in a series of indiscreet sexual encounters with a young, female intern. The scandal rocked his administration and nearly cost him his job. The average citizen was left questioning his motives and lack of judgment. The Wall Street Journal even contemplated whether President Clinton might be a "sex addict." (1) Had the President unscrupulously used his power and influence for sexual gain? Or did he simply succumb to the wily charms of a youthful nymphet? These are questions to which no one (other than the affected parties) knows the answer. The ramifications of his boorish behavior, however, are unfortunately shared by the American public. The sanctity and prestige of the Presidential office may never recover. Future generations may be forced to examine a candidate's sexual peccadilloes along with his or her political proposals. But one thing is very clear. Sex, in the wrong place, or at the wrong time, or even with the wrong person, can have serious, serious consequences. Nothing about sex is simple.

   This note examines "consensual" sexual relationships between non-mental health physicians and patients. (2) More specifically, it examines whether such relationships ever amount to medical malpractice. Generally, a non-mental health physician would be liable under the rubric of medical malpractice only if the sexual relationship was commenced under the guise of "medical treatment." (3) Recent cases, however, have expanded liability in certain circumstances when the physician-patient relationship has involved "counseling matters." "Counseling matters" describes talking to patients about their feelings, or discussing personal problems not necessarily related to their proposed treatment. Medical treatment supplemented by "counseling" purportedly requires greater scrutiny due to the higher levels of trust and confidence necessary to protect the patients' interests. (4) These cases adopt the more rigorous legal approach applied to mental health physicians. Mental health physicians (psychologists and psychiatrists) have routinely been held liable for medical malpractice based on sexual relationships with their patients. This liability arises out of mishandling the "transference phenomenon." (5)

   The "transference phenomenon," a Freudian discovery (6), involves the creation of a father-son, mother-daughter relationship between the doctor and patient which is ultimately necessary to promote psychological healing. (7) Patients who experience such a phenomenon tend to be sexually vulnerable to their therapists. (8) Sexual contact with a patient, therefore, may cause irreparable harm to the patient's psyche. (9) A good psychiatrist/psychologist will avoid acting on this vulnerability and apply techniques to lessen it. (10) A bad psychiatrist/ psychologist will initiate a sexual relationship, or through "countertransference" project his or her unhealthy feelings onto a client. (11) Transference issues arise, to some degree, in all relationships when perceived authority figures exist. (12) Psychologists, psychiatrists, counselors, physicians, lawyers, and the clergy all deal with transference issues. (13) Consequently, it is not surprising that all these professions view sex with a client in an unfavorable light. (14)

   The main question this article addresses is whether sexual relations between two consensual adults in the physician-patient relationship constitutes medical malpractice. Such a relationship may be unethical. (15) Such a relationship may also result in severe civil or administrative penalties. (16) Such a relationship may even be criminal. (17) However, this author asserts that in no circumstances does the behavior ever rise to medical malpractice. It would be quite a stretch indeed to hold that a physician's sexual relationship with a patient was substantially related to the qualifications, functions, or other duties logically associated with being a doctor. Nor would it be logical to presume that such relations arose while in the scope of the physician-patient relationship, or that such activities constituted rendition of any health care services. Sexual acts also do not involve the requisite levels of skill and care promised to the patient. And the possible presence of the transference phenomenon, by itself, is simply not enough to impose liability for medical malpractice onto the non-mental health physician.

   Why debate whether a sexual relationship creates grounds for medical malpractice? Medical malpractice is typically covered under professional-liability insurance policies. (18) Adverse medical malpractice judgments or settlements increase insurance costs. Increased insurance costs are spread to society as a whole in greater health-care costs. Or in other words, society pays while the doctor and patient play. If the relationship is truly consensual, then BOTH parties must bear the brunt of their irresponsibility. Sex, like crime, comes with a cost and imposes societal burdens.

   Part II of this note examines the issues involved in building a fiduciary relationship based on trust and confidence. Medical malpractice will be defined and broken down into its relevant parts. Transference and countertransference will be discussed as it relates to physicians. Part II also suggests how to avoid compromising situations, and lists factors of which every doctor should be aware.

   Part III of this note explores the case law surrounding the sexual relationship as grounds for malpractice. Part III first examines mental health care physician liability, and then considers non-mental health care physicians who had sexual relations under the guise of treatment. Part III concludes with a review of the most recent cases which discuss liability for physicians who undertake "counseling matters."

   Part IV involves the underlying analysis on why the physician-patient sexual relationship should not constitute medical malpractice. Specifically, Part IV focuses on the significance of medical malpractice to the insurance agencies, as well as addresses other avenues which can be used to successfully discourage such conduct.

   Finally, this note concludes with some general public policy arguments. In its rush to eliminate any and all things unfair (such as relative bargaining power), American society has become overly litigious. People no longer accept responsibility for their own conduct. The blame always falls soundly upon someone else's shoulders. This author contends that any rational, semi-intelligent human being should know, in advance, that sleeping with his or her doctor may create a potential conflict of interest. This recognition does not mean that doctors should have a free pass to avoid their moral obligations. It simply means that BOTH parties have a duty to be responsible. As the old saying goes "it takes two to tango."

2. BACKGROUND: A FIDUCIARY DUTY BASED ON TRUST AND CONFIDENCE

   The nature of the physician-patient relationship is complex. As a fiduciary relationship, it is grounded in mutual mast and confidence. The physician is required, in good faith, to perform his or her duties at the level of knowledge, skill, and standards applicable to the medical profession as a whole. (19) The physician is "represented to the public as possessing superior knowledge, being worthy of public mast, and bound to act in the best interests of patients." (20) The patient, on the other hand, enters the relationship at his or her most vulnerable moment. (21) The patient's physical and mental well-being depends upon the physician's competence. (22) Detailed physical examinations along with the patient's personal revelations and insights often accompany most courses of treatment. (23) Patients' vulnerability compounded with their obvious dependence on the physician to "cure their ills" places the physician in a position of dominance. (24) It is this position of dominance, or relative disparity of power in the relationship, which has led the American Medical Association (the "AMA") to conclude that having sexual relations with a current patient is unethical. (25)

   The prohibition against sexual relationships with patients dates back over one thousand years to the Hippocratic oath. (26) A 1992 survey of practicing physicians revealed that nine percent acknowledged sexual contact with one or more patients. (27) And because of the strong and often complex emotions (affection, admiration, understanding, and empathy among others) evoked by the physician-patient relationship, it is not uncommon or abnormal that sexual attraction between the two parties develop. (28) This sexual attraction, which by itself may not be deleterious to the relationship, can under the right situation lead to sexual contact. (29) Sexual contact, or a sexual relationship, is viewed as gratifying the physician's needs at the patient's expense. (30) Objectivity of treatment is lost, or at least jeopardized, by placing the physician's focus elsewhere. (31) Almost all researchers agree that the consequences of a physician-patient relationship are "universally negative or damaging to the patient." (32)

   The issue of "informed consent" (33) also arises. (34) If the disparity of the physician-patient relationship is so great, and its effects so harmful, can a patient or would a patient be able to voluntarily consent to such sexual activity? Physicians have been known to exploit their positions to gain sexual favors under the guise of treatment, or to take advantage of unconscious or incompetent patients. (35) Physicians have also abused patients by improperly performing medical procedures or dispensing drugs. (36) Logically, taking it one step further, it may not seem unreasonable due to this inequality...