Can a Doctor Ethically Have Sex with His Patient?

Sexual relations between a doctor and his patient is fraught with hazards to both the patient and to the doctor, one which is created by every state which grants a license to practice medicine to selected individuals. Only a select group of men and women are licensed by the state and are given the power to prescribe medications and perform surgical operations, which enables the doctor to exert enormous control on every patient. Significant responsibilities attach to those privileges, which are sometimes abused by a minority of physicians, who become sexual predators. Such violations by the doctor are always negligent, and the physician may be liable for compensation to the innocent victim. Sexual predatory and immoral physicians are subject to disciplinary action, which may include loss of his medical license, fines, and even criminal sanctions. The following scenario is a composite of several cases upon which I represented a party, which demonstrates these points. Dr. D was one such sexual predator with an MD degree after his name who sexually and psychologically abused his patient, Ms. P.

Ms. P vs Dr. D

Ms. P was a 28 year old woman who was referred for counseling to a psychiatrist for issues of depression and low self-esteem. Prior to her encounter with Dr. D, Ms. P never was so depressed that she considered suicide. Dr. D was a well-respected, well-qualified, board certified psychiatrist, a fellow of the American Psychiatric Association., tall, and good-looking Ms. P, an attractive brunette, had a history of promiscuous sexual behavior, due in part to her emotional problems. An intelligent and articulate woman, she recognized that she needed help emotionally, because of her need to seek personal validation using her sexuality. Dr. D, fully aware of her vulnerability, gained her trust during his course of treatment. Ms. P became dependent on Dr. D and developed great affection for him, a process known as transference. Dr. D abused her trust and had sexual relations with Ms. P on multiple occasions in his office.

Dr. D’s conduct was exposed when Dr. D sent invoices to Ms. P for these office visits which included their sexual trysts. Ms. P refused to pay her doctor’s bill, and Dr. D sued Ms. P. Ms. P, tearfully clutching the legal complaint she received, making her a defendant in this lawsuit, sought legal representation. She objected to being forced to pay for Dr. D’s “medical services” which included their sexual acts. Ms. P was advised to not pay Dr. D’s bill, and a Counterclaim within the same lawsuit was filed against Dr. D. Dr. D’s insurance company assigned an attorney to defend Ms. P’s Counter Claim against Dr. D. Over the next three years, Dr. D’s attorney and insurance company vigorously presented their legal defense.

Legal Elements of Medical Negligence

Ms. P’s suing Dr. D for medical malpractice is a complex, difficult, expensive, and tedious process which requires significant legal and medical expertise and dedication. In order to prevail in a lawsuit against a physician in Illinois and in most states, Ms. P must overcome a series of procedural hurdles which are often not required in other kinds of lawsuits, including retaining numerous medical experts. Expensive medical experts are virtually always required to obtain a favorable verdict a medical negligence lawsuit, even as a Counter Claim. To file a medical negligence lawsuit, Ms. P had her medical and other records of the case reviewed by another physician, who provided a written report attesting that a “meritorious basis exists” for filing the medical negligence lawsuit and a detailed factual explanation as to the basis of the reviewing doctors’ opinion; this report was attached to the Complaint filed by Ms. P, the injured victim, even though in this case, she was a defendant in the first lawsuit. The cost for the reviewing physician’s review and report alone is expensive and can typically range from $1,000 to $2,500. In my experience, most victims of medical malpractice, cannot afford the expensive costs of litigation, which include expert fees, deposition costs, exhibits, and trial costs, and we generally advance those substantial costs, which are repaid when money is recovered for the client.

The law treats doctor and hospitals very differently than other negligent actors, and provides them with defenses and procedural barriers which do not apply to cases other than medical negligence. This makes suing a doctor more difficult, expensive, and complex. For example, Ms. P was required to file an affidavit attesting that the attorney had consulted with a physician who is qualified to opine on the subject. The failure to file the report and the attorney affidavit would be grounds to dismiss the lawsuit “with prejudice,” which means that the case is dead and cannot be revived. Reviewing physician reports and attorney affidavits are not required for filing a lawsuit against other classes of defendants in other types of cases, such as automobile accidents, home premises injuries, or breach of contract cases outside of the provision of medical or hospital services.

Ms. P’s Litigation Process

Dr. D’s attorney challenged the adequacy of the report with a “Motion to Dismiss.” Court hearings were held after written documents were filed by both sides, and Dr. D’s attempt to escape accountability based upon alleged inadequacy of the physician’s report were defeated, and his first Motion to Dismiss was denied. Dr. D’s attorneys filed more Motions to Dismiss during the next three years until resolution.

In my more than 30 years’ experience, every medical negligence lawsuit is vigorously defended, regardless of how obvious the negligence, and Ms. P’s case was no exception. In order to prove a medical negligence lawsuit, Ms. P had the burden of proving four elements: a) Dr. D had a duty to Ms. P; b) Dr. D breached his duty to Ms. P; c) Ms. P was injured; and d) Dr. D’s breach of his duty was a contributing cause to Ms. P’s injuries. Dr. D’s attorneys vigorously defended the case on b), c), and d). Dr. D’s attorneys did not dispute that sexual acts occurred while Dr. D was treating Ms. P. Ms. P was advised that regardless of how obvious the misconduct and negligence of Dr. D, his attorneys would do everything possible to drag out the process and attempt to find some technicality to avoid Dr. D’s being held responsible. Settlement or winning at trial are never a sure thing, no matter how egregious the conduct.

Written questions and answers were exchanged and depositions (live questioning under oath before a court reporter) of Ms. P and Dr. D were taken, and Dr. D’s attorney filed its second Motion to Dismiss. This attempt to escape accountability by Dr. D was based upon their claim that Ms. P was not injured. Dr. D, under oath, opined that Ms. P actually benefitted from his sexual encounters with Dr. D. Ms. P., they claimed, had emotional problems before she met Dr. D, during her treatment with Dr. D, and she had emotional problems afterwards. Dr. D’s attorneys claimed that Ms. P was therefore not injured by Dr. D’s predatory conduct.

Dr. D unabashedly testified under oath to these claims in his discovery deposition (in which verbal questions are posed and sworn answers are given), that he was not negligent, and that in his professional opinion, Dr. D provided Ms. P with the affection, touching, hugging, and reassurance she needed. Dr. D’s claimed that his having sexual relations with Ms. P was simply part of his therapeutic treatment plan. Dr. D admitted that following his treatment, Ms. P was severely depressed, despondent, and unable to form satisfactory relationships with others, which led her to a sense of isolation. He further acknowledged that she now had suicidal ideation which were not present prior to his sexual acts. Dr. D further testified that Ms. P willingly consented to the sexual relations and that he had obtained her informed consent. In Dr. D’s distorted and self-serving view, Ms. P enjoyed their sexual encounters and benefitted from his physical attention and sexual prowess. Because Ms. P benefitted, he appropriately billed her for his services and sued her when she objected and refused to pay his bills. Finally, Dr. D claimed that any injury that Ms. P suffered, including loss of trust in physicians, suicidal thoughts, and being victimized and abused, was impossible to define and could not be reduced to monetary damages. To refute these defenses by Dr. D, Ms. P was required to retain the services of a retained, board certified psychiatrist.

Illinois Medical Practice Act

Statutes exist in all states which grant the exclusive right to holders of a license to practice medicine in all of its branches. The Illinois Medical Practice Act of 1987, Professions and Occupations, 225 ILCS 60 governs the conduct of physicians. This law details just what a physician may do and chronicles very specific prohibitions as to what the physician cannot do. The list of prohibited acts is long and includes practicing medicine without a license, splitting fees with another physician, grossly overcharging a patient, fraud, advertising that health insurance deductibles will be waived, and having sex with a patient. Every transgression of the Illinois Medical Practice Act is punishable by a fine of up to $10,000 per occurrence, but may also subject the physician to suspension, revocation, and refusal to renew the physician’s license. Some transgressions of the Medical Practice Act are Class A Misdemeanors and some are even felonies. Having sex with a patient does not carry criminal sanctions.

The Illinois Medical Practice Act recognizes that Dr. D and Ms. P, are not equal in their relationship and that patients, like Ms. P, place their trust in a physician, who is often treated as an icon more than as a person. As patients, we are always disadvantaged when dealing with the doctor because of our powerful need to trust and believe the doctor. We imbue our physicians with wide ranging, and sometimes magical powers, including the ability to make a diagnosis, to provide treatment, to relieve pain, suffering, and disability, and sometimes even to prolong a life. We tell their doctor personal and sensitive information about ourselves, while not knowing much, if anything, about our doctor. We permit our doctor, a virtual stranger, to touch, probe, and fondle us, and even to put fingers and instruments in the most private bodily areas without objection. We allows our surgeon to invade our body with sharp scalpels, needles, and other traumatic instruments. After answering our doctor’s questions and his physical examination, we routinely empower our physician, while knowing little about our doctor himself. To each of us, our doctor is more a symbol of healing than a person with personal needs and foibles.

Given this imbalance of power, knowledge, and need, the law recognizes that when it comes to sexual conduct, our physician cannot obtain truly informed consent from us. We may be suffering and in pain; her cognition and judgement may be impaired by her disease process, by fear, and by medications. We may have urgent or emergent needs, which preclude obtaining second opinions. We are rarely capable of assessing physician results, complication rates, and mortality rates, since such data is neither published or otherwise available. Because the playing field is so unequal, the Illinois Medical Practice Act lists highly specific prohibitions regarding the physician’s conduct.

The Illinois Medical Practice Act (225 ILCS 60/9) mandates that the physician must be of “good moral character” and that he not engage in “conduct or activities which would constitute grounds for discipline.” The physician specifically is prohibited from engaging in “immoral conduct in the commission of any act including, but not limited to, commission of an act of sexual misconduct related to the licensee’s practice.” The penalty for such conduct is that the State of Illinois may revoke, suspend, place on probation, reprimand, refuse to issue or renew, or any other action deemed proper, including imposing fines not to exceed $10,000 for each violation. A physician who violates the Illinois Medical Practice Act has also acted negligently and has not acted like a reasonably careful doctor would act in the same or similar circumstances.

The Legal System Worked

In my experience, the major reason that a defendant doctor and his insurance company settle a case is because they fear a jury’s verdict. Dr. D repeatedly abused his position of trust and committed multiple violations of both the Illinois Medical Practice Act and the standard of care for a doctor. After forcing Mrs. P to present her witnesses, including a retained expert psychiatrist who strongly condemned the conduct of Dr. D, negotiations proceeded to a fair settlement.

Dr. D’s insurance company recognized that a jury would likely find against Dr. D, despite the fact that juries generally have been lead to believe by endless propaganda that frivolous lawsuits make doctors the defendants, an often-repeated but well publicized lie. In our experience, the history of the Law Office of Kenneth C. Chessick’s selecting meritorious cases and achieving many record verdicts and settlements in medical negligence cases, most defendants and their insurance companies conclude that going to trial against us is too risky, and most cases settle for substantial amount of money. Dr. D’s insurance company finally offered an amount of money which Mrs. P felt was acceptable and permitted her to get the psychiatric treatment she needed initially.

Illinois law required that Dr. D’s settlement be reported to the State of Illinois and disciplinary action was undertaken, so that future injuries to patients would be prevented. The settlement was also reported to the federal National Data Bank, so that if Dr. D applied for a medical license or hospital privileges in another state, this settlement and his conduct is on his record and follows him. Dr. D was sanctioned and expelled by the American Psychiatric Association. This lawsuit achieved the multiple goals of medical negligence litigation: a) Ms. P, the innocent, injured victim, received monetary compensation; b) Ms. P got the satisfaction of justice having been done, Dr. D’s outrageous conduct exposed and recognized, and emotional closure obtained; and c) future injuries to other patients were likely prevented. The legal system worked, although the process was arduous, slow, and expensive. As a result of this litigation, the world was made a safer place.

Can a doctor ethically have sexual relations with his patient? The answer is a resounding No!

If you think you have been the victim of medical malpractice, we will review your case at no cost, regardless of where you live. We only charge a fee if we recover for you. Contact the Law Office of Kenneth C. Chessick, MD at 847-843-8044 or KCC@CliffordLaw.com.