Opinions on Ethics and Professionalism

An AAOS Opinion on Ethics and Professionalism is an official AAOS statement dealing with an ethical issue, which offers aspirational advice on how an orthopaedic surgeon can best deal with a particular situation or circumstance. Developed through a consensus process by the AAOS Ethics Committee, an Opinion on Ethics and Professionalism is not a product of a systematic review. An AAOS Opinion on Ethics and Professionalism is adopted by a two-thirds vote of the AAOS Board of Directors present and voting.

Sexual Misconduct in the Physician-Patient Relationship

Issue Raised

What obligations does an orthopaedic surgeon have regarding sexual misconduct in the physician-patient relationship? Applicable Provisions of the Principles of Medical Ethics and Professionalism in Orthopaedic Surgery

"I. The orthopaedic profession exists for the primary purpose of caring for the patient. The physician-patient relationship is the central focus of all ethical concerns. The orthopaedic surgeon should be dedicated to providing competent medical service with compassion and respect."

"II. The orthopaedic surgeon should maintain a reputation for truth and honesty with patients and colleagues, and should strive to expose through the appropriate review process those physicians who are deficient in character or competence or who engage in fraud or deception."

"V. The orthopaedic surgeon should respect the rights of patients, of colleagues, and of other health professionals and must safeguard patient confidences within the constraints of the law."

Applicable Provisions of the Code of Medical Ethics and Professionalism for Orthopaedic Surgeons

"I. A. The orthopaedic profession exists for the primary purpose of caring for the patient. The physician-patient relationship is the central focus of all ethical concerns."

"I. B. The physician-patient relationship has a contractual basis and is based on confidentiality, trust, and honesty. Both the patient and the orthopaedic surgeon are free to enter or discontinue the relationship within any existing constraints of a contract with a third party. An orthopaedist has an obligation to render care only for those conditions that he or she is competent to treat. The orthopaedist shall not decline to accept a patient solely on the basis of race, color, gender, sexual orientation, religion, or national origin or on any basis that would constitute illegal discrimination."

"II. B. The orthopaedic surgeon should conduct himself or herself morally and ethically, so as to merit the confidence of patients entrusted to the orthopaedic surgeon's care, rendering to each a full measure of service and devotion."

"II. C. The orthopaedic surgeon should obey all laws, uphold the dignity and honor of the profession, and accept the profession's self-imposed discipline. Within legal and other constraints, if the orthopaedic surgeon has a reasonable basis for believing that a physician or other health care provider has been involved in any unethical or illegal activity, he or she should attempt to prevent the continuation of this activity by communicating with that person and/or identifying that person to a duly constituted peer review authority or the appropriate regulatory agency. In addition, the orthopaedic surgeon should cooperate with peer review and other authorities in their professional and legal efforts to prevent the continuation of unethical or illegal conduct."

Other references

American Medical Association, Current Opinions of the Council on Ethical and Judicial Affairs, Section 8.14, "Sexual Misconduct in the Practice of Medicine ."

American Medical Association, Reports of the Council on Ethical and Judicial Affairs, Report 29, "Sexual Misconduct in the Practice of Medicine ," January, 1991.

Johnson, SH: Judicial review of the disciplinary action for sexual misconduct in the practice of medicine, JAMA; 1993; 270: 1596-1600.

Background

Sexual contact between a physician and patient may occur in several circumstances: (1) the physician may become involved in personal relationships with patients that are concurrent with but independent of treatment; (2) some physicians may use their position to gain sexual access to their patients by representing sexual contact as part of care or treatment; (3) physicians may assault patients by engaging in sexual conduct with incompetent or unconscious patients. There seems to be little or no data indicating the prevalence of each type of sexual misconduct.

Although a number of studies have attempted to establish the incidence of physician-patient sexual contact, the actual prevalence of physician-patient contact cannot be determined with accuracy. What data exists is generally based on self-reporting by physicians.¹ Because of the stigma attached to physician sexual contact with patients and the professional repercussions which may result from admitting to such contact, most researchers believe that the occurrence of patient-physician sexual contact is grossly underreported. There is a small minority of physicians who have reported having sexual contact with their patients.² Studies of psychiatrists indicate that between 5-10 percent reported having sexual contact with patients. ¹

Data for all specialties are not available, but a 1976 study suggests that this percentage may be comparable for other specialties. ² Research also indicates that the effects of physician-patient contact are almost universally negative or damaging to the patient.

There is a long-standing consensus within the medical profession that sexual contact or sexual relations between physicians and patients are unethical. Current ethical thought uniformly condemns sexual relations between patients and physicians. In addition, the laws of many states prohibit sexual contact between physicians and their patients. The ban on physician-patient sexual contact is based on the recognition that such contact jeopardizes patients' medical care.

Legal Considerations

Physicians engaged in sexual activity with patients may be subject to legal penalties for such conduct. Sexual conduct by physicians with their patients may generate civil damage actions against the physician for malpractice. ³ In addition, criminal prosecutions, either under general sexual assault statutes or under recently enacted more specific statutes, are possible. ⁴ Indeed, four states currently specifically classify sexual exploitation by a psychotherapist as sex offenses under criminal statutes. It is noteworthy that the statue in a least one state - Florida - specifies that consent of the patient cannot be used as a defense by a physician against charges of sexual misconduct.

Sexual activity of physicians with patients may also trigger licensure disciplinary action against the physician. Seven states have enacted licensure statutes that specifically provide for disciplinary action for sexual activity, and others address the issue of a physician's having sexual relations with a patient under the general categories of "unprofessional conduct" or "moral turpitude." The range of sanctions available to licensure boards provide greater flexibility in adjusting the penalty to fit the degree of violation. However, the effectiveness of the disciplinary system in handling improper sexual activity by physicians with patients or former patients has been criticized for failing to protect patients. ⁵

Ethical Considerations

Patient consent
Several elements of the physician-patient relationship may combine to give the physician undue influence over his or her patient. Within the physician-patient relationship, the physician possesses considerable knowledge, expertise, and status. A patient is often most vulnerable, both physically and emotionally, when seeking medical care. When a physician acts in a way which is not to the patient's benefit, the relatively weak position of the patient makes it difficult for the patient to give meaningful consent on the part of the patient which has led researchers to compare physician-patient sexual contact to other sexually exploitive situations such as sexual assault and incest.

Patients who seek medical care must be able to trust in the physician's dedication to their welfare in order for the physician-patient alliance to succeed. A physician who engages in sexual contact with a patient seriously compromises the patient's welfare. The patient's trust that the physician will work only for the patient's welfare is violated. Consequently, sexual contact and sexual relationships between physicians and their patients are uniformly considered to be unethical.

The orthopaedic surgeon's professional obligation to serve the needs of the patient means that his or her own needs cannot become a consideration in decisions about the patient's medical care. This is because consideration of the physician's needs or gratifications may interfere with efforts to address the needs of the patient. The emotional factors which accompany sexual involvement affect or obscure the physician's medical judgment, thus jeopardizing the patient's diagnosis or treatment.

Termination of the physician-patient relationship

Physicians and patients may be genuinely attracted to each other. However, any relationship in which a physician might take advantage of the patient's emotional or psychological vulnerability is unethical. Therefore, before initiating a dating, romantic, or sexual relationship with a patient, a physician's minimum duty is to properly terminate his or her professional relationship with the patient. In addition, physicians are advised to consult with a colleague before initiating a relationship with the former patient. Termination of the professional relationship would also be appropriate if a sexual or romantic attraction to (as opposed to actual contact with) a patient threatens to interfere with the judgment of the physician.

Even the termination of the physician-patient relationship does not totally eliminate the possibility that sexual contact between a physician and a former patient might be unethical. Sexual contact between a physician and a patient with whom professional relations have been terminated would be unethical if the sexual contact occurred as a result of the use or exploitation of trust, knowledge, influence or emotions derived from the former professional relationship. The ethical propriety of a sexual relationship between a physician and a former patient depends substantially on the nature and context of the former relationship.

Reporting of sexual misconduct

Sexual misconduct is unlikely to be brought to the attention of the proper authorities by a patient because of the feelings of shame, humiliation, degradation, and self-blame.

The reporting of alleged sexual misconduct by one physician against other physicians is critically important in the case of sexual misconduct. Physicians are encouraged to report instances of sexual misconduct by their colleagues. Research on the reporting practices of physicians indicates that reluctance to report may involve concerns about confidentiality, either in the physician-patient relationship or among colleagues. In addition, because of the nature of sexual misconduct, most victims are rendered reluctant or unable to report the misconduct on their own. The Academy, in its Principles of Medical Ethics and Professionalism in Orthopaedic Surgery, provides that "[t]he orthopaedic surgeon should strive to expose through the appropriate review process those physicians who are deficient in character or competence or who engage in fraud or deception." Therefore, orthopaedic surgeons should be vigilant in exposing colleagues to appropriate review who allegedly have committed sexual misconduct.

The Academy and the AMA's Council on Ethical and Judicial Affairs believe that physicians who become aware of alleged sexual misconduct by a colleague should report the misconduct to the local medical society, the state licensing board or other appropriate authorities, except if the physician learns of the sexual misconduct while treating the offending physician.

AMA Council on Ethical and Judicial Affairs

In December, 1990, the AMA's Council on Ethical and Judicial Affairs released Report 29 on "Sexual Misconduct in the Practice of Medicine." The Report concluded that:

1. A physician's sexual contact or romantic relationship with a current patient is unethical;


2. A physician's sexual contact or romantic relationship with a former patient are unethical if the physician uses or exploits trust, knowledge, emotions or influence derived from the previous professional relationship;


3. Medical training should include education on the issue of sexual attraction to patients and sexual misconduct at all levels;


4. Disciplinary bodies must be structured to deal effectively with physician sexual misconduct;


5. Physician's who learn of sexual misconduct by a colleague must report the misconduct to the local medical society, the state licensing board or other appropriate authorities. Exceptions to reporting may be made in order to protect patient welfare of the physician-patient privilege;


6. Many states have legal prohibitions against relationships between physicians and current or former patients.

Recommendations

The American Academy of Orthopaedic Surgeons condemns sexual misconduct by orthopaedic surgeons and other physicians. The Academy concurs with the December, 1990, recommendations of the AMA's Council on Ethical and Judicial Affairs contained in Report 29 about "Sexual Misconduct in the Practice of Medicine." Orthopaedic surgeons who learn of the alleged sexual misconduct of a colleague have an obligation to report it to the local medical society, state licensing board or other authority. By taking this action, orthopaedic surgeons can help ensure that all patients are treated in a non-threatening, respectful manner.

1. Gartnell N, Herman J, Olarte S, et al: Psychiatrist-patient sexual conduct: results of a national survey, I: prevalence, American J. Psychiatry ; 1986; 143: 1126-31.


2. Kardener SH, Fuller M, Mensh IN: Characteristics of "erotic" practitioners, American J. Psychiatry ; 1976; 133: 1324-5.


3. Jorgenson L, Randles R, Strasburger L: The furor over psychotherapist-patient sexual contact: new solutions to an old problem. William Mary Law Rev ., 1991; 32: 645-732.


4. Johnson SH: Judicial review of disciplinary action for sexual misconduct in the practice of medicine. JAMA , 1993; 270: 1596-1600.


5. Glasgow JB: Sexual misconduct by psychotherapists: legal options to victims and a proposal for change in criminal legislation. Boston Coll. Law Rev ., 1992; 33: 645-688.

© October 1993, Revised May 2002 American Academy of Orthopaedic Surgeons
This material may not be modified without the express written permission of the American Academy of Orthopaedic Surgeons.

Document Number: 1208

For additional information, contact Richard N. Peterson at (847) 384-4048 or email peterson@aaos.org