Allegations of Improper Touching
On July 22 of year one, a 44-year-old woman called the office of an OB/GYN physician to report that she had had a total hysterectomy with a bladder and rectal lift approximately five years previously. She had been seen at the local emergency department the prior evening because she felt she had something protruding from her vagina. An ED physician examined her and told her that the protrusion was her bladder and that she would need surgery to repair it.
She was scheduled for an office visit on July 26 for evaluation for bladder prolapse, which had been present for approximately six months. The OB/GYN took the patient's history, including her surgical history, which was fairly extensive. He conducted a physical exam noting that she was on an anti-depressant, sleep medication, and narcotic pain medication. His assessment was that the patient had a rectocele and recommended the standard treatment of a posterior colporrhaphy. The patient agreed to the plan. She was started on a bowel regime and scheduled to return to the office in two weeks.
The patient returned to the office on August 9 for a follow-up evaluation of the rectocele. Posterior colporrhaphy, repair of rectocele with or without perineorrhaphy, was discussed and explained to the patient. The patient then consented to the procedure.
The surgery was performed on September 27 at the local hospital without incident. The patient was seen for her first post-op evaluation on October 11. The patient reported some vaginal pain and bleeding approximately two weeks previous but noted it was improving. A genitourinary exam was conducted, and the patient was found to have a normal vaginal vault without central or paravaginal defects, no discharge, no inflammatory lesions, and no masses. The post-incision line, although intact, was still swollen and tender. Post-operative incision care was again reviewed with the patient.
The patient's second post-operative visit took place on October 25. The patient had no current complaints, the surgical site was well healed and non-tender, and the rectocele was completely reduced. No additional appointments were indicated, but the patient was instructed to call the office should she have any questions or experience any complaints. That was the last time the OB/GYN saw or spoke to the patient.
On February 21 of year two, the patient went to the local police department to report that the doctor had sexually assaulted her. She told the police officer that she had been a patient of the OB/GYN the previous fall and that he had performed surgery that required several follow-up visits. She reported that on her first visit to the surgeon, she was uncomfortable because there was a male medical student instead of a female nurse in the room during the examination.
She stated that she returned to the office on October 11 for a final follow-up visit. When she got to the office, she told the officer it was empty of other patients. She said that she usually was brought to an exam room just beyond the receptionist's desk, but this time she was brought upstairs into another waiting room where the doctor met her. She was told to undress from the waist down and that he would return. The doctor came back into the room and performed the post-operative exam. She stated that she was uncomfortable because there was no female nurse or chaperone in the room.
She went on to tell the officer that the doctor completed the exam and told her everything looked great and that she should have no further problems. The doctor removed his fingers from her vagina, at which point she thought the exam was over. She said the doctor then re-inserted his fingers, made a sexually suggestive comment, and winked at her. She quickly moved back on the table and closed her legs. The doctor left the room, and she went to find a nurse.
The patient stated that she had been very upset but wasn't comfortable talking about it since it happened. She did not tell her husband but was not comfortable being intimate with him. She finally told someone who encouraged her to report it, which she did.
The police officer recommended that she submit a complaint to the state board of medicine, which she did. The state board of medicine opened an investigation and sent the physician a letter on July 24 outlining the patient's complaint.
The physician sent the board a letter on August 3 responding to the complaint letter. He began his letter by stating that there was absolutely no truth to the allegation. The doctor went on to provide a summary of the care he had provided to the patient, including the dates of her office visits and surgery. In his description of the office visits, he noted that October 11 was the patient's first office visit, not her final follow-up visit, as she told the police officer. In addressing the patient's assertion that she was uncomfortable because a male medical student was in the room during her exam, he noted that he occasionally has male or female medical students attend to patients with him. He went on to say that on all occasions, he explains to the patient who the student/resident is and makes sure the patient is comfortable participating before the student/resident is permitted to attend.
He addressed her claim that the office was empty of other patients and that she was brought upstairs into another office. He could show that according to office records, four other patients were scheduled for the same time as the patient, that only the first floor was utilized on the day in question, and that the patient was seen in Room #1 on the first floor. He then reiterated that October 11 was her first visit, not her final one and that he did not "re-inserted his fingers and made a sexually suggestive comment and winked at her."
As a final note, he stated that if the patient was "very upset about the alleged incident since the day it happened," why did she return to the office for a final post-operative visit on October 25?
In closing, he reiterated how extremely upsetting the allegation was and that he prided himself in providing all of his patients with competent and compassionate care.
Based on the information the physician provided to the board, they closed the case but noted that the complaint would remain permanently in his file and be open for review if they received any further complaints.
The board was pleased the office had instituted a chaperone policy requiring patients to be offered a chaperone and that the name of the chaperone or the patient's refusal of the chaperone be documented in the patient's medical record.
Patients should feel safe when their health care providers treat them. When a patient must undergo an intimate examination, the provider must exercise care so that patients feel safe and that their boundaries have not been violated.
Sexual assault is a severe allegation, and all allegations should be taken seriously and investigated to determine their merit and, if true, protect future patients. When patients have an intimate exam in a room without a chaperone, and the patient accuses the provider of sexual misconduct, it can become a case of one person's word against the other's. For this reason, office practices must institute policies and procedures to protect patients and providers.
The physician adamantly denied the allegations and could discount many of the patient's assertions by providing an accurate summary of her care, including dates of visits and records of the number of patients seen on the days in question.
In his response to the board, he stated he always explains to the patient who the student/resident is and makes sure the patient is comfortable participating before the student/resident is permitted to attend. He did not document the medical student's presence or consent in the patient's medical record. Without documentation, it can be challenging to prove that the patient consented to the medical student being in the room.
The practice acknowledged the importance of making patients feel comfortable and safe during intimate examinations by instituting a chaperone policy. Requiring documentation of the chaperone's presence proves that another staff member was in the room during the exam.
Risk Management Takeaways
- Investigate all allegations of improper touching or boundary violations.
- Develop a chaperone policy for your practice.
- Require chaperones to be present during intimate exams by the opposite sex.
- Document the presence of a chaperone and the chaperone's name in the patient's medical record.
- Ask for patient consent to have a student/resident present during treatment.
- Document the patient's consent to the presence of a student/resident in the patient's medical record.
- Document the student/resident's name in the patient's medical record.
- Do not use students/residents as chaperones.
- Thoroughly document patient encounters in the patient's medical record.
- Maintain copies of office schedules for 10 years.