In short, yes. A doctor or therapist that engages in a doctor-patient sexual relationship may be found to have committed medical malpractice. Medical malpractice occurs when a physician or other medical professional causes an injury to a patient by falling below the professional standard duty of care that is required of doctors when they are:
- Managing a patient;
- Diagnosing a patient; and/or
- Treating a patient.
When a physician or other medical professional deviates from the standard duty of care that is required of all medical professionals, that deviation will generally be the result of an act of negligence by the medical professional.
Medical malpractice laws are the set of laws that allow an injured patient (i.e. the plaintiff) to bring a legal claim against a negligent medical professional for their injuries. Malpractice laws also allow plaintiffs to recover damages for the harms that were caused by the professional’s substandard conduct.
When Can a Medical Professional Be Held Liable for Malpractice?
Whether or not a physician or medical professional can actually be held liable for a patient’s injuries will largely depend on the facts and circumstances of the specific case, as well as local medical malpractice laws for their state.
It is important to note that the standards and regulations for medical malpractice can even vary between different jurisdictions within the same state. As such, it is advised that if you have sustained injuries due to medical malpractice, such as being sexually assaulted by a medical professional, you should consult with a local personal injury lawyer in order to know which set of laws apply to your specific case.
Examples of the most common medical malpractice claims include:
- Improperly diagnosing or failing to properly diagnose an individual;
- Prescribing the wrong treatment or wrong medication;
- Operating on the wrong body party, such as amputating a different body part;
- Prematurely discharging a patient before they have been sufficiently treated for their medical issues;
- Leaving behind a piece of medical equipment inside the patient;
- Sexually assaulting or being involved in a sexual realtionship with a patient;
- Not providing adequate information regarding a procedure to the patient prior to treatment or surgery; and
- Inputting errors into a patient’s medical records, resulting in an injury to a patient.
Is It Still Malpractice if the Patient Consents to the Sexual Conduct?
In general yes, any type of sexual conduct with a patient is going to be considered malpractice, regardless of whether or not the patient consented to the conduct. As such, consent is not a valid defense to malpractice. This is because the act of a doctor dating patients is in violation of a doctor’s hippocratic oath and professional duties.
It is important to note that dating a former patient that a Doctor is no longer actively treating may not be considered malpractice in some jurisdictions. However, many jurisdictions still consider sexual conduct with a former patient to be malpractice, especially in cases in which the patient was vulnerable at the time of the initial professional relationship.
Is There an Exception If It’s “True Love”?
There is no “true love” exception for a physician’s medical malpractice of engaging in a sexual relationship with a patient, regardless of whether they are a former or current patient. In many cases of sexual conduct involving a doctor, studies have shown that it is very easy for a patient to mistake appreciation for love, and transfer feelings of respect and gratitude into the context of a romantic or sexual relationship. As such, the patient is considered a vulnerable party in a doctor-patient relationship.
What If the Patient Is No Longer under the Care of the Doctor?
As mentioned above, one of the factors that is considered in determining medical malpractice is whether or not the patient is a current patient or former patient. If the patient is a former patient, the former professional relationship will be analyzed to determine whether or not the patient was a vulnerable party. In almost every doctor-patient relationship the patient will be considered a vulnerable party.
In legal terms, the doctor-patient relationship is typically defined as a consensual relationship in which an individual knowingly seeks out a physician’s assistance for a medical issue and the physician knowingly accepts the individual as a patient. The doctor-patient relationship is considered to be a fiduciary relationship.
This means that trust and confidence are essential. This also means that a physician is held to a standard of medical care defined by the standards of practice in their area of practice. The doctor-patient relationship will continue until the relationship is ended by a party revoking the relationship, such as the doctor terminating a patient or the patient dismissing the physician.
With regard to sexual conduct malpractice, a doctor that engages in a sexual or romantic relationship with current or former patients may still be found to have committed medical malpractice. For any sort of romantic relationship with a patient, a doctor is generally required to wait at least a year after terminating the doctor-patient relationship before engaging in a sexual relationship. Importantly, this is not an absolute defense to malpractice. It is important to note that the American Psychiatric Association (“APA”) has stated that all therapist-patient sexual relationships are inappropriate.
What If the Doctor Has Retired from Medicine? What If the Doctor Is No Longer a Doctor?
Although a retired doctor cannot commit medical malpractice, as they are no longer actively practicing, sexual relationships between a former patient and doctor still raises a number of both legal and ethical issues. Once again, a doctor’s fiduciary duty to patients may continue, even after treatment.
Therefore, even if a former doctor cannot have their medical license revoked for having a sexual relationship with a former patient, a former patient could still file a civil lawsuit for exploitation and emotional distress. In any case if a doctor utilized the former doctor-patient relationship as a means for forming a sexual relationship they can still be held to a professional standard of duty.
If I Promise Not to Sue My Physician or Therapist for Malpractice, Will It Be Safe to Enter into a Relationship?
Although some states will enforce promises to not sue for malpractice, many states find such agreements to be unenforceable. Therefore, even if a patient does not sue for malpractice the doctor or other medical professional may still have to face legal issues for entering into a sexual relationship with a patient. For example, their medical license could be revoked by their licensing regulation department.
Romantic relationships with patients will typically always violate the ethical standards of most medical professions. Additionally, in some states romantic or sexual relationships with patients are even considered outright illegal. Even with a promise not to sue for malpractice, whether written or not, a sexual relationship with a patient may end up costing the medical professional their job.
How Can a Doctor or Therapist Avoid Malpractice Suits for Engaging in a Sexual Relationship?
The best way for a doctor or therapist to avoid a malpractice suit for sexual conduct, is to avoid any and all sexual conduct towards a patient. If a patient is mistaking feelings of gratitude for love, the doctor or therapist should take action by bringing an assistant of the same gender as the patient with them when treating that patient. Then, the doctor will be able to have a witness that there was no sexual misconduct.
If the patient makes any further advances, the doctor or therapist should recommend that the patient see another practitioner. Additionally, the doctor and the assistant should make notes in the patient’s chart as to why the doctor-patient relationship was terminated.
Should I Consult a Lawyer?
If you believe that your doctor or therapist has committed malpractice by engaging in a sexual relationship with you, you should consult an experienced liability attorney. Additionally, if you are a doctor or therapist and are concerned about a relationship you had with a patient, you should also consult with an experienced personal injury defense attorney.
In either case, an experienced attorney will be able to consult you as to the best legal course of action given the circumstances of your case. Finally, an attorney will also be able to represent you in court, as necessary.
