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The 10 Biggest Legal Mistakes Physicians Make That Could Lead to Liability for Sexual Harassment
Date Posted: 10/Jan/2017
Claims and lawsuits alleging sexual harassment can be among the most daunting and potentially devastating claims affecting physicians, both in their capacity as an employer and as a health care professional. Civil, criminal, and administrative consequences can ensue. In addition to potential legal liability, which in many cases is predicated solely on the word of the accuser against the physician, the mere fact of such claims, no matter how unsubstantiated or frivolous, can have far-reaching consequences on the emotional state, personal life, reputation, and professional standing of a health care professional. To be forewarned is to be forearmed.
 
Mistake 1: Not Having a Written Sexual Harassment Policy
It is pragmatic not only for large medical practices to have a sexual harassment policy, but also for sole practitioners whose practice may consist of only the physician and a receptionist. Any multiemployee office should have a written employee policy handbook that includes a section on sexual harassment. The provision should declare a zero tolerance policy toward such conduct by the employees, and the policy should encourage employees to report directly to the physician or the office manager any instances of such misconduct that they have been subjected to by either a coworker or a patient.
 
Action Step
Physicians should consult with an experienced employment law attorney for the exact content to be included in an employee policy handbook. Physicians should provide the employee policy handbook to every employee and update it as needed.
 
Mistake 2: Not Documenting Reports of Sexual Harassment by Employees
Under federal law and many state statutes, the employer is strictly or automatically liable for sexual harassment perpetuated by a supervisor or manager on an employee, but is liable for sexual harassment committed by a coworker against another employee only if the employer fails to take appropriate action upon learning of the harassment. Therefore, the employer should take seriously any report of sexual harassment by a coworker against another coworker, whether supervisory or not. Also, the employer should document the report in writing, including who said what, and what corrective action, if any, the employer will be taking.
 
Action Step     
This is not the time to shy away from paperwork or executive decision making. The complaint should be thoroughly documented. To resolve the problem, the physician will have to make difficult decisions about employee discipline, including the possibility of termination, if necessary.
 
Mistake 3: Not Posting Prohibitions Against Sexual Harassment
Many companies provide literature to employers detailing the laws against sexual harassment and discrimination. They also provide pamphlets and posters to make available to employees. Any office big enough to contain a company bulletin board should have such a poster prominently displayed for the benefit of employees. Having these materials on hand will prove that the physician has a sexual harassment policy in effect if it becomes necessary to counter a charge. 
 
Action Step
Such literature is not expensive and is easy to obtain. The cost will always be less than trying to prove later that the physician disapproved of sexual harassment in the office but had no written guidelines for reference.
 
Mistake 4: Not Maintaining a Professional Office Environment
It is a professional failing and a potential legal liability situation to allow a lax or permissive office environment wherein off-color jokes, sexually suggestive photographs or pictures, or access to adult Internet sites is the norm. Sexual harassment is defined not only as unwelcome and persistent romantic or sexual advances by one person to another, but having to work in a sexually charged atmosphere that is both objectively and subjectively offensive to a worker of reasonable and ordinary sensitivity. Allowing the opposite to occur in the spirit of ribald fun can become a problem for a physician if a disgruntled or easily offended employee makes it an issue.
 
Action Step: 
Physicians should not countenance unprofessional and sexually suggestive comments and memorabilia in the practice setting.
 
Mistake 5: Not Documenting the Reasons for Employee Termination
Most states are “at-will,” which means that the employer is not required to have a reason to terminate an employee. However, most employees do not take to termination kindly and may, in response, bring claims for unemployment compensation, workers’ compensation, and even sexual harassment. Providing employees with a documented reason for termination that is noted in their personnel file can help to disprove such post-termination claims and put the employees at a disadvantage in any later proceedings related to the dismissal.
 
Action Step: 
Physicians should put in writing any pre-termination problems with employees and the reasons for their termination. They should also have the employees acknowledge in writing the receipt of the employer’s documentation.
 
Mistake 6: Not Avoiding Unprofessional Physical Interaction with Employees and Patients
Physicians step into dangerous territory when they engage in physical contact with employees or patients that the recipient or an observer could interpret as being romantically or sexually suggestive. Even if the physician’s intent is purely platonic, the recipient or an observer may view with alarm or suspicion back rubs, pats on the buttocks, hand-holding, hugging, or other close physical interplay involving someone with whom the physician does not already have a close and personal relationship. If the physician’s intent is other than platonic, the potential outcome for a legal problem will be magnified.
 
Action Step:
Physicians should keep their hands to themselves. 
 
Mistake 7: Not Avoiding Office Romance
It is a fact of life that many romantic relationships develop in the workplace. If a physician is already committed to a serious relationship, then the reason for avoiding an office romance with an employee should be self-evident. If the physician is not so committed but finds an employee to be attractive enough to flirt with or to even ask for a date, then the employee should probably not have been hired in the first instance. Persistent demands for a relationship or a date that are not favorably responded to by the employee in response to the employer are more often than not the genesis for a sexual harassment action. While an inquiry by the physician to an employee would probably not constitute sexual harassment if it were not persisted in after an initial refusal, the atmosphere could become permanently altered by such an overture. The overture could arise in a legal case if the employer-employee relationship were to sour thereafter.
 
After the initial blush of romance fades, and especially if the relationship turns bad, having had a romance with a patient is a near guarantee for a malpractice claim or a professional disciplinary problem later.
 
Action Step: 
Physicians should pursue romance in places other than where they hang their medical license.
 
Mistake 8: Not Having a Nurse or a Physician Assistant Present When in an Examination Room with a Patient of the Opposite Sex
While probably more of a consideration for a male physician with a female patient, having a nurse or a physician assistant present also may be prudent for a female physician with a male patient. Innocent parts of a physical examination may be misinterpreted by a patient as being sexually or physically intrusive. Also, it is not uncommon for some patients to view their physician with an affection that is other than what is normally present in the routine patient-physician relationship. If such a patient felt he or she was being “spurned” and had an ax to grind, the absence of a credible witness on behalf of the physician may put the matter into a “he said-she said” contest in which the physician may end up the losing party, either in a lawsuit or in front of the medical board as a subject of professional discipline.
 
Action Step:
Physicians should practice medicine defensively, especially when a physical examination requires inspection by the physician of an intimate area of the patient’s anatomy.
 
Mistake 9: Not Knowing What Insurance Will Cover
Most physicians with an office have two basic types of insurance coverage: liability insurance, which covers accidents and events in the office unrelated to the professional rendering of services (such as a fall in the lobby); and malpractice or errors and omissions insurance, which relate to claims arising in the professional rendering of services. At a time when sexual harassment claims are common, many general liability and professional liability policies have specific exclusions for claims made that allege sexual abuse, sexual harassment, sexual discrimination, or similar types of sexual misconduct.
 
Insurance is supposed to provide two different considerations of value: to pay the claim if there is merit to it, and to pay for the attorney’s fees and other legal expenses incurred in defending the claim, regardless of whether payment is made. If the policy has an exclusion for sexual misconduct, then the physician will have to incur and be responsible for attorney’s fees and related legal expenses, in addition to the value of the claim itself if a settlement is possible or an adverse judgment is rendered against the physician.
 
Action Step: 
Physicians should make sure their insurance broker obtains general liability and professional policies that do not have sexual harassment exclusions. Such policies may not be available in some insurance markets. Moreover, physicians should not take the broker’s word for what is excluded or included in the policy, but rather get an opinion from an attorney who has expertise in insurance coverage and claims. Obtaining legal advice before a problem arises is invariably cheaper than obtaining it after a problem arises.
 
Mistake 10: Committing Sexual Harassment
While this admonition may be self-evident, some professionals, blinded by the elevated status of their profession, by an inability to accept that someone doesn’t appreciate their advances, or by an uncontrollable urge, may decide to persist in repeatedly visiting their attentions on an employee or a patient who is unreceptive to such advances.
 
Civil sexual harassment claims can subject a defendant to compensatory damages to the victim for emotional distress, physical trauma, medical expenses, loss of wages, attorney’s fees, and even punitive damages. If the nature of the harassment is physical, then it also may constitute the basis for criminal charges for assault, sexual battery, or other penal code violations. Also, charges of sexual harassment can result in a physician being professionally disciplined, including suffering the loss of license.
 
Action Step: 
Sexual harassment is not worth it, and those who truly can’t contain themselves should not practice medicine.
 
Conclusion
Understanding the consequences of sexual harassment claims and educating themselves and their staff are the best safeguards against such a claim. Having appropriate insurance coverage in case a claim should arise is the next best step.
 
Additional Resources
. N. Levy, M. Golden & L. Sacks, California Torts, Vol. 3, Ch. 40B (Matthew Bender & Co. 1985)
. J. McDonald & F. Kulick, Mental and Emotional Injuries in Employment Litigation, 2nd ed. (Bureau of National Affairs Inc. 1997)
. Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
 
Written by:
Lawrence A. Strid, Esq.

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