Vicarious liability. First of 2 Parts: The gynecologist who wore an unusual pen

What obligations do physicians and medical facilities have when it comes to dealing with troubled or troublesome clinicians? In this 2-part column, we look at a recently reported case of a gynecologist who engaged in serious misconduct without being noticed. In part 2, we will discuss the obligation of the medical profession to notice and deal with colleagues who are creating a risk to patients or the institution.

CASE: Medical center blamed for negligence when rogue physician records pelvic exams
Dr. A, a gynecologist, had been a physician at a leading academic medical center for many years. His employment was terminated in February 2013 when he admitted taking more than 1,000 videos and images using a tiny camera embedded in a pen or key fob that he wore around his neck. He stored the images on his home computer. It seems that he had been secretly recording pelvic examinations since 2005.

A class-action lawsuit initiated against the academic medical center and the physician suggested invasion of privacy, emotional distress, and negligence in oversight on the part of the academic institution. (This case was settled before trial and most of the records are not publicly available. The facts used here are based on press releases and published articles and, therefore, are incomplete and may be subject to interpretation.)

Breach of trust
Talk about a violation of the doctor-patient relationship! The suit claims, among other things, “harmful and offensive sexual contact with patients.” The hospital identified 12,700 patients that the gynecologist might have seen during his 25-year-span as an employee.

Some victims report posttraumatic stress disorder (PTSD). In addition to feeling betrayed by their physician, the victims feel the action was a breach of faith, of trust. They report being fearful of being examined by another physician, and some have refused to seek medical care. The sense of mistrust of the medical profession has resulted in some victims’ reluctance to allow their children to be seen by pediatricians.¹

CASE: SETTLED
This lawsuit, possibly the largest medical malpractice case of its kind, resulted in a $190 million settlement. The academic medical center will disperse the funds to more than 7,000 possible victims.¹ A special hotline Web site and a toll-free number have been established to facilitate victim reporting. A board-certified psychologist will work with victims.

Similar suits have settled
Other lawsuits involving physicians who have secretly recorded patients also have been settled:

• A Connecticut endocrinologist who took photos of patients nude settled for $50 million in 2012.¹
• A pediatrician pedophile in Delaware was associated with a $123-million settlement with long-term follow-up of victims.²

WHAT ARE THE ETHICAL OBLIGATIONS?
Ethics in medicine can be discussed at great length (see “Issues of ethics in medicine”). An important question related to this case concerns the investigators’ obligations to make their findings public with the scenario that the patient/victims are not aware that a crime occurred.³ This is among the issues that will be considered in part 2 of this article that will be published next month. One concern is that publicly identifying the victims may lead to the development of PTSD and its intrinsic consequences. How can one prosecute the perpetrator and yet prevent psychological consequences of the victims?

What do ACOG and the AMA say about sexual misconduct in medicine?
ACOG. The American College of Obstetricians and Gynecologists (ACOG) is explicit about sexual misconduct. Specifically, the physician-patient relationship can be damaged when there is “confusion regarding professional roles and behavior or clear lack of integrity”¹ that results in sexual exploitation and harm. ACOG further states that¹:

The request by either a patient or a physician to have a chaperone present during a physical examination should be accommodated regardless of the physician’s sex. If a chaperone is present during the physical examination, the physician should provide a separate opportunity for private conversation.