EXECUTIVE SUMMARY
A high-profile case of sexual misconduct illustrates the need for good risk management in this area. The case led to the facility being sued, as well as a physician and nurse anesthetist.
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Policies and procedures regarding sexual abuse and harassment must be rigidly enforced.
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Employees and patients need an anonymous method for reporting their concerns.
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The facility cannot allow retaliation against anyone reporting claims of sexual misconduct.
In light of recent high-profile cases of sexual assault and harassment in healthcare facilities, managers should assess whether their policies and procedures are strong enough to produce an adequate response when staff members or patients report these incidents, one risk management expert suggests. The policies must lead to disciplinary action when appropriate, she says.
“It needs to be a policy that has teeth,” says Delphine O’Rourke, JD, in-house general counsel and chief advocacy officer of Our Lady of Lourdes Memorial Hospital in Binghamton, NY, and managing partner of the Philadelphia, PA, office of the law firm Hall, Render, Killian, Heath & Lyman.
One recent case in the news drew attention to the problem of sexual abuse and harassment. It involved a surgical tech accusing a nurse anesthetist and urologist of sexually harassing her. The incident resulted in a lawsuit against the facility and others. (See the story in this issue for more information on that incident.)
In this case, “there were allegations that hospital administrators didn’t respond or didn’t investigate,” O’Rourke says. “The policy has to be strong enough to create a culture of compliance, to communicate to physicians and staff that we take this seriously and there are concrete identifiable consequences to this behavior. [Have] zero tolerance for this type of behavior.”
There also should be a process to facilitate concerns about sexual abuse and harassment, such as a hotline dedicated to staff concerns or even to this particular concern, O’Rourke says.
Anonymous reporting is critical because staff members cite fear of retaliation as one of the main reasons they do not report sexual misconduct, as victims or witnesses. Particularly with the physician/staff dynamic in healthcare, employees can be very fearful that a physician will retaliate in the workplace, even if there are no negative consequences from administration in a formal way, she says.
“They won’t get the high-paying shifts, they’ll be cut off from surgeries with that physician, moved from their units, subject to greater harassment by the person they report,” O’Rourke explains. “That fear of retaliation can be a powerful disincentive even when the person knows that what is happening is wrong and shouldn’t be tolerated.”
REASONS FOR RELUCTANCE
Victims also can be dissuaded from reporting because they think nothing will be done to stop the behavior.
There is some justification for that thought because even when physicians are accused of sexual misconduct, state boards rarely take any disciplinary action, according to the first study using information on physician sexual misconduct from the National Practitioner Data Bank (NPDB). (See the story in this month’s issue for more information on that report.)
Though allowing anonymity, the process for reporting concerns must give administrators enough information to investigate and act. Achieving both requires a delicate balance, O’Rourke says. It is not unusual for hotlines to receive calls that indicate a serious problem but provide too little information for follow up, she says.
Any information promoting the hotline, and the recording the caller hears, should emphasize the need for enough detail to allow administration to respond. That information must be paired with assurances that any retaliation in the workplace will not be tolerated.
O’Rourke notes that encouraging people to report concerns directly to the person responsible for risk management may not be the best choice. Like it or not, many employees and patients perceive risk management as working to protect the facility rather than them, so they may be discouraged from reporting, she says. Even if the reports go directly to the person responsible for risk management, it probably is not a good idea to promote that point, she says.
It also is not enough to sit back and wait for the calls to come in. Managers should proactively monitor some areas where sexual misconduct is more likely because patients are more vulnerable, she says. Those areas include surgery and anywhere patients are anesthetized. O’Rourke recommends talking with staff in these areas frequently to get a feel for the culture, what is tolerated and what is not, and how comfortable people might feel reporting a problem.
Another strategy is to randomly audit charts of vulnerable patient populations by contacting those patients and asking about their experiences, O’Rourke suggests.
Failing to have a meaningful, effective process for reporting and investigating sexual misconduct claims opens up the facility to liability on several levels, O’Rourke notes.
The facility can be sued for retaliation even if the administrators did not formally discipline the employee for reporting. The employee can show that he or she was denied higher paying shifts, promotions, or otherwise suffered as a result of reporting, O’Rourke explains. The facility also can be sued for failing to act after receiving a report and for failing to follow its own policies and procedures.
“Regardless of who the alleged harasser is, the [facility] should follow the same policies and procedures,” O’Rourke says. “Employees are very attuned to that because this is an environment in which there is a hierarchy, and it’s very clear and acknowledged by everyone. If employees don’t think the system will treat them equally when they report these things, problems will go unreported, and you’re creating a hostile work environment where sexual harassment is tolerated, if not encouraged.”
O’Rourke notes that in a California case in which a surgical tech claims a nurse anesthetist was exposing himself to her during procedures, the administration allegedly refused to review the OR surveillance video after she reported the incidents or turn over the video without a court order. If that accusation is true, O’Rourke says, the facility sent a bad message to employees by implying that it was not willing to investigate serious claims of misconduct.
“I’ve heard countless times, ‘What happens in the OR stays in the OR,’” O’Rourke says. “That culture has to change. Whether it has to do with sexual harassment or infection control, the OR cannot be an environment where rules are broken or rules are bended because of a historic culture.”
State medical boards are failing to protect the public from many doctors already known to have committed sexual misconduct, according to a recent report from Public Citizen, a non-profit, consumer rights advocacy group and think tank based in Washington, DC.
Seventy percent of U.S. physicians (177 out of 253) who had engaged in sexual misconduct that led to sanctions by healthcare organizations or malpractice payments were not disciplined by state medical boards for their unethical behavior, according to the research. The study is the first published one that used information on physician sexual misconduct from the NPDB.
“It’s clear that medical boards are allowing some doctors with evidence of sexual misconduct to continue endangering patients and staff,” said Azza AbuDagga, MD, health services researcher for Public Citizen’s Health Research Group and lead author of the study.
Public Citizen for years has pushed state medical boards to do a better job of disciplining problem doctors. “These boards must pay more attention to sexual misconduct that leads to health care organizations cracking down or to lawsuits,” AbuDagga said.
When state medical boards do act on sexual misconduct, though, they take severe measures in the vast majority of cases. For the 974 NPDB reports of medical boards disciplining physicians in response to physician sexual misconduct, the boards took serious licensure actions — such as revoking, suspending, or restricting the medical license — in 89% of cases. In contrast, state medical boards took such severe actions in only about two-thirds of cases involving other types of misconduct.
Sidney Wolfe, MD, founder and senior adviser of Public Citizen’s Health Research Group and coauthor of the study, said, “These numbers show that when state medical boards take action, the action rightly tends to be much more severe for physicians who engaged in sexual misconduct than other offenses. Now, the medical boards need to pay increased attention to sexual misconduct that led to health care organizations cracking down or to lawsuits. State medical boards have full access to the NPDB data. The boards must protect the public.”
While the study provides important new information, it likely highlights a possible overall underreporting or inaction related to sexual misconduct. The authors caution that because sexual misconduct-related reports accounted for only 1% of the total reports in the NPDB, their study “represents only the tip of the iceberg of physician sexual misconduct in the U.S.”
The full report is available at http://tinyurl.com/z4ft236.
