State Boards, Regulators Paralyzed on Physician Sex Assaults



The first two parts of this series explored the patterns and characteristics of doctors who sexually violated patients and the role institutions played in enabling this misconduct. Here we investigate how these assaults are reported and documented, and where improvements can be made in preventing these acts of sexual misconduct.

In 2016, Tracy Lystra filed a complaint with the Medical Board of California after a lawsuit against her former ob/gyn, related to allegations of unwanted sexual advances and medical negligence, was settled. Two years later, the board responded, stating in a letter that they were unable to "establish grounds for discipline" against the physician, Anthony Bianchi, MD.

But Lystra later learned that similar complaints against Bianchi had been filed by three other women during this time, and that the state board had twice put him on probation, overlapping terms of which have put restrictions on his license until 2021.

While common practice is to report these cases of misconduct and malpractice to state medical boards, there is no nationally established protocol, and cases of sexual violations are often not reported in the first place, or downplayed and categorized under terms that fail to convey their severity. Often, actions against a physician's license only occur following a criminal conviction related to medical misconduct.

All members within the Federation of State Medical Boards (FSMB) have the authority to discipline physicians who commit sexual misconduct. But although the FSMB calls itself the "voice for state medical boards" and aims to promote patient safety, these complaints often fail to reach the federation, said FSMB President and CEO Humayun J. Chaudhry, DO.

"The FSMB has heard complaints from its member boards that hospitals and health organizations have ignored reporting requirements, found ways to circumvent them, or provided reports to state boards that are too brief and general to equip the board with relevant information to act on," Chaudhry told MedPage Today in an email.

"I really wanted him stopped," Lystra said about Bianchi in a Kaiser Health News report. "It was so disappointing when the medical board responded the way it did."

Even when a doctor is disciplined by a state board, information on the violation is often vaguely recorded or listed under an umbrella term such as "unprofessional conduct," which might apply to sexual misconduct but can also represent a host of other actions such as "dishonesty" or "inadequate record keeping."

Are medical boards, the American Medical Association (AMA), and other groups doing enough to enact change?

Medical Boards

Every state has its own set of regulations on disciplining physicians and deciding whether certain actions are made available to the public.

According to a 2018 FSMB report, 13 state medical boards require regulators to notify state or local law enforcement when doctors commit sex offenses against patients. But not all boards assure confidentiality for those reporting violations in good faith, and 18 require that those filing a complaint disclose their identity.

FSMB runs the DocInfo database, where profiles indicate whether a physician holds an active license and whether states have taken actions against them.

Whether details beyond that are publicly available depends on the state where physicians practice (or practiced). Submitted complaints are made public for just 10 states. Some -- including Kansas, South Carolina, and Virginia -- handle complaints in informal, closed investigations, while others require public orders to obtain disciplinary histories. And many states don't share actions with other state medical boards, or only do so under certain circumstances.

State medical boards are required to report certain adverse actions taken against a physician to the National Practitioner Data Bank (NPDB) -- a confidential, government-sponsored repository for records of medical malpractice judgments -- including revocation or suspension of a license, or probation.

Professional membership societies, law enforcement, and state licensing boards can also report incidents of physician misconduct to the NPDB; the database can be used by hospitals to vet its medical staff or potential candidates.

State boards can request information on physicians too, but its use has been limited and often ignored during licensing. In 2017, 30 state boards used it fewer than 100 times, while 13 never bothered to check it once, according to numbers from the Health Resources and Service Administration.

Role of Medical Societies

The AMA includes a section titled "Romantic or Sexual Relationships with Patients" in its "Principles of Medical Ethics" guidelines and defines sexual harassment in the practice of medicine, but does not outline disciplinary actions or legal proceedings that should follow an assault.

They also do not explicitly recommend chaperones be present in exam rooms, a practice that is only required for intimate procedures in seven states. In fact, AMA guidelines recommend physicians "provide opportunity for private conversation with the patient without the chaperone present."

"The AMA and the national Council on Patient Safety, all of these things can promulgate their guidelines all they want, but the reality of the issue is how seriously they take [them] and how much they insist on these guidelines, rules, and protocols actually being implemented on the provider-patient level," said John Banja, PhD, a medical ethicist at Emory University.

Although the AMA does not have the authority to enforce disciplinary measures against physicians who have committed sexual assault, their guidelines are highly influential in recommendations made by specialty associations, such as the American College of Obstetricians and Gynecologists or the American College of Surgeons.

If the AMA remains silent on the issue, these smaller organizations will likely follow suit.

Improving Reporting

Although NPDB includes a category for "sexual misconduct" and de-identified information can be gathered by researchers to compile statistics on physician misconduct, hospitals and other healthcare organizations might instead report sexual misconduct as "professional misconduct" or some other category.

"As such, we cannot identify all cases involving acts of sexual assault, harassment, or abuse, and it is not possible to determine the prevalence of doctors who commit sexual assault on their patients based on the information reported," program officials at the NPDB told MedPage Today.

For medical establishments looking to improve their reporting, Banja recommended that they establish relationships with their local police, so that physicians or patients who suspect abuse know whom to call and what to report. If an institution has not established protocols to be taken under these circumstances, allegations may slip through the cracks, he said.

Inconsistencies across state boards can allow physicians to cross a state border, renew their license, and continue to practice, even after they have had their license revoked. Fifteen states do not share complaints with other medical boards, while 21 denote board actions taken in other states on a physician's profile.

Physicians are obligated to disclose to state medical boards if they have had an action against their licensure in another state, but not everyone does, said Catherine Caldicott, MD, of PBI Education, a continuing education organization focusing on professional boundaries, medical ethics, and law. Some doctors may claim they were unaware of the obligation or that they simply forgot, she added.

It's also possible for physicians to apply for licensure in another state while an investigation in a neighboring state is underway, since some medical boards only make the final action of their investigation public.

In an investigation titled "States of Disgrace," MedPage Today and the Milwaukee Journal Sentinel exposed the patchwork of state laws that result in physicians barred from practicing in one state heading to another to hang their shingles, including cases in Rhode Island and New York that involved sexual misconduct with patients. (Just days ago, a physician with a history of sexual misconduct faced a new accusation in the state to which he had relocated.)

Closing Loopholes

California recently passed legislation requiring doctors to actively inform their patients if they have been disciplined by the state regulatory board for sexual misconduct involving a patient.

A physician's peers also have a responsibility to report impaired, incompetent, or unethical employees, according to Caldicott. "But that's not a law, that's a professional ethical expectation."

James DuBois, PhD, ScD, of Washington University in St. Louis, who recently developed a set of guidelines designed to prevent egregious ethical violations in medical practice, said that requiring chaperones to be in the room during patient examinations could help reduce the number of sexual attacks that occur.

However, an Australian report on chaperones showed that having another person in the room might not be effective in preventing violations. Because chaperones are often employed by the practice, a physician committing an assault would also be the chaperone's superior, thus creating conflicts of interest when deciding whether to report a violation.

Besides, another person's mere presence might not be enough. Chaperones need to be educated in what is appropriate behavior, and prepared to be vigilant during these visits. In the case of former U.S.A. Gymnastics team doctor Larry Nassar, DO, of Michigan State University, his victims' parents were often in the room when abuse occurred.

In long-term care facilities, Banja emphasized the importance of establishing policies on video monitoring systems and noted that certain psychiatric units have instituted "open-door" policies, in which room doors are always kept open in order to protect the residents' welfare. While these policies sacrifice privacy, they enhance safety.

Overall, the more a predator fears being "caught in the act," the less likely an act becomes, Banja said.

Recently, more than a dozen healthcare professionals formed the "Workgroup on Sexual Boundary Violations" under the FSMB's auspices last year to recommend best practices for cooperating with law enforcement, and prosecuting or adjudicating these violations. They also plan to update FSMB's current policy on "addressing sexual boundaries," which has not been updated since 2006 and does not outline a single recommended procedure for handling physician sexual assaults.

Caldicott said the work group will address a host of factors that make reporting and finding information difficult. The group intends to have their report and recommendations released to the public next year.

"One issue is that while there is an awful lot of interest in doing the right thing and doing right by patients, it's very hard to get a sense of the scope of the problem because there just aren't clean data to draw from," Caldicott told MedPage Today.

In December, the working group met with professional organizations and victims, including Marissa Hoechstetter, the sole named plaintiff in the case related to Robert Hadden, MD, the former ob/gyn at Columbia University-affiliated NewYork-Presbyterian hospital who pleaded guilty in 2016 to criminal sex acts and forcible touching of patients.

The lawsuit, which currently includes 17 women, alleges that Columbia and its hospital network knew of Hadden's abuse and covered it up for decades; more women are expected to join the suit in the coming months.

Hoechstetter and eight other women involved in the Columbia case have requested that Hadden's name be removed from their children's birth certificates.

Although she can't change the fact that Hadden delivered her twins, Hoechstetter has continued to speak out about her experience. Since then, a New York City council member proposed a law that would allow parents to remove the names of sexually abusive doctors from their children's birth certificates.

"I don't want his name there," Hoechstetter said. "He was the first person in the whole world to touch them, someone who delivers your children and physically takes them out of you."

Currently, the DocInfo database profile of Hadden indicates "no active licenses found" and that there were "actions found in New York." But in 2012, when Hoechstetter, in stirrups, saw Hadden during a postpartum visit, his record would have looked clean on any database.

"He was teaching faculty, people trained with him, worked with him -- there is a system of people who must have seen what was happening," Hoechstetter said. "But people often don't see what they don't want to see. Even if it's right in front of them."

Source: https://www.medpagetoday.com/publichealthpolicy/ethics/77890

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