In the wake of additional litigation being filed against an Omaha doctor for alleged inappropriate touching of a patient (Inappropriate Touching Lawsuit), it is useful to consider the issues that are triggered by allegations of sexual harassment, sexual assault, or other sexual misconduct in the healthcare environment. The nature and extent of the allegations in the Nebraska cases are by no means as severe as cases involving more notorious examples (George Tyndall; Larry Nassar; Hacienda Health). However, it is critical that medical providers understand the issues that may be implicated, and the obligations they will have in the context of sexual misconduct allegations, even on a smaller scale.
The issues for healthcare providers, whether individuals, independent practice groups, captive practice clinics, or larger institutions, are significant, and often overlapping. These issues can involve multiple governmental authorities, private parties, insurance companies, other medical providers, human resources personnel, and, of course, attorneys of various specialties. The primary consideration should always be patient safety, and the safety of others in the environment, such as visitors, employees, and other providers.
Among the issues that could be raised, the following examples should be reviewed and analyzed:
1. Insurance coverage. Carriers may defend actions involving sexual misconduct, but may do so under a reservation of rights that retain the carrier’s option to deny coverage entirely. Courts have upheld language denying liability coverage when the underlying conduct is criminal behavior.
2. Criminal charges and investigations. Persons making a complaint of sexual assault will have the option of filing a police report with a resulting additional investigation to determine whether formal charges will be filed. This will be happening at the same time as medical staff, employment, licensure, and potential other investigations are pending.
3. Medical staff privileges. Pending investigation, hospitals will have broad powers to order a summary suspension or limitation on a provider’s privileges to practice medicine. Such suspensions will likely start as a complete limitation against any treatment, but can be modified to allow a medical provider to continue to practice under supervision or monitoring, or perform only certain procedures. However, a physician will have very little leverage in these situations, and a court is highly likely to allow a hospital to suspend privileges while an investigation is underway.
4. Licensure. Similarly, a medical provider’s license may be suspended pending investigations by state licensing authorities, in addition to the other investigations outlined here. Medical providers themselves, or others in the care environment may have obligations to notify such authorities, depending on their level of knowledge or involvement.
5. Employment relationships. A standard requirement in a medical provider’s employment agreement is that the provider maintain active medical staff privileges at facilities designated by the provider’s employer. Likewise, loss of such privileges is typically a specific condition supporting termination of the employment agreement, and may impact payment of severance, deferred compensation, or other benefits.
6. Human Resources. If an employee is the target of the alleged harassment or assault, the employer will have obligations to investigate and remediate the work environment to ensure that it is harassment free.
7. Civil Litigation. A medical provider or a healthcare entity’s employees or other staff may be subject to extensive written discovery, document production, depositions, hearings, and, in rare circumstances, trial. Preservation of evidence will be required, and spoliation may result in findings that the information or documents which were lost are presumed to have supported a complaining party’s allegations.
8. Retaliation. A complaining party should be protected from any form of retaliation by persons being accused of sexual misconduct, and/or any related entities. Part of the movement to protect individuals from sexual misconduct in the healthcare industry includes not only being reactive to allegations, but also being proactive in fostering and supporting an environment that encourages equal treatment without the specter of assault, and harassment. Strong policies addressing the issues are a starting point, and provider education can support the implementation and enforcement of those policies.
9. Peer review. Individuals who serve on peer review committees may be shielded from personal liability for statements they make as part of the process, but that does not necessarily mean that those statements will not be admissible in civil or criminal proceedings. At a minimum, peer review information and documents will very likely be discoverable; again, preserving the safety of patients and other individuals should always be paramount.
Finally, the recent incidents of institutional failure to adequately investigate and address allegations of sexual assault, harassment or other misconduct demonstrate that renewed emphasis should be placed not only on policies addressing such conduct, but also in fostering an environment that allows employees to feel comfortable coming forward with concerns. Complaining parties should be comfortable that they will not be the subject of retaliation or other further misconduct as part of the process, and institutions should have effective mechanisms in place to investigate and remediate. In nonhealthcare settings, examples of allegations of misconduct and failures by public and private institutions to adequately investigate (Early Allegations Against Jeffrey Epstein), or worse (Harvey Weinstein Coverup Allegations) have tragically resulted in scores of additional victims beyond the original complaining parties.
What are the solutions? There is no quick fix to these problems, but renewed focus and attention at the national level in other industries has seemingly resulted in some progress, or at least awareness. Sexual harassment is based at least in part on already-existing inequalities in the workplace such as wage disparity, and disproportionately low representation of women in formal leadership roles; those issues must also be addressed. Many employers unfortunately limit themselves to reactive measures, which also must be improved by holding bad actors accountable, supporting and protecting the complaining party from retaliation, being responsive to complaints in a timely and effective manner, and having multiple avenues of complaint mechanisms. Proactive measures should not be limited to annual training, but should encourage promoting a workplace culture that does not tolerate the offending behavior. Peer to peer intervention should be encouraged to help establish expectations of acceptable behavior in the workplace. Harassment negatively impacts the workplace for more than the person who is the target of the harassment, and witnesses can come forward without a complaint originating with the person being harassed.
© 2019 Vandenack Weaver LLC
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