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The AMA. The American Medical Association’s Council on Ethical and Judicial Affairs developed a report titled “Sexual Misconduct in the Practice of Medicine.” The Council concluded that2:
- Sexual contact or a romantic relationship concurrent with the physician-patient relationship is unethical.
- Sexual contact or a romantic relationship with a former patient may be unethical under certain circumstances.
- Education on the ethical issues involved in sexual misconduct should be included throughout all levels of medical training.
- In the case of sexual misconduct, reporting offending colleagues is especially important.
References
- Committee on Ethics. ACOG Committee Opinion No. 373. Sexual misconduct. http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Ethics/Sexual-Misconduct. Published August 2007. Accessed November 11, 2014.
- McMurray RJ, Clarke OW, Barrasso JA, et al; Council on Ethical and Judicial Affairs. Sexual misconduct in the practice of medicine. JAMA. 1991;266(19):2741–2745. http://jama.jamanetwork.com/article.aspx?articleid=393342&resultClick=3. Accessed November 11, 2014.
UNUSUAL ELEMENTS OF THIS CASE
The case of “The gynecologist who wore an unusual pen” is extraordinary in terms of the financial consequences for the medical center. Indeed, the $190 million class-action settlement is probably a record in cases of this kind. The facts (insofar as we know them, and we certainly do not know them all) are sufficiently unusual to seem more like fiction than reality.
An unusual element of the case is that the images were apparently not shared with others, but retained by the gynecologist. Thus, the $190 million settlement was not for disclosing confidential information, but for the unauthorized and inappropriate act of taking the videos and storing them at home. This case was a violation of professional obligations and clearly unethical and likely illegal. It was not associated with the distribution of images that is so often the hallmark of breach of privacy cases.
Another very unusual condition of this case was that there was no way to identify the victims. The faces of the women were not in the videos, so the subjects of the 1,200 videos and 140 images found on the physician’s home computer could have been any of more than 7,000 patients.1 The distribution of funds, therefore, may encompass all of these former patients, and the size of an individual’s recovery may depend largely on the degree of emotional upset she experiences. The victims will be asked how much time they spent with the physician, whether a nurse was present, whether there was any verbal or sexual abuse, and details about emotional harm they experienced.
VICARIOUS LIABILITY
Why was the medical center responsible?
At first blush it may seem puzzling that the medical center, rather than the gynecologist, was responsible for the damages. In fact, the gynecologist might well have been both criminally and civilly responsible, but sadly, he committed suicide after his wrongdoing was discovered.3
The hospital was civilly responsible. In this instance it appears (again, from our limited facts) that the gynecologist was an employee of the medical center. Employees are generally considered agents of their employers (“principals”). By definition, a principal has the right and obligation to oversee and control the actions of its agents. As such, the principal is generally legally liable for the actions of an employee within the course of employment. Vicarious liability essentially allows someone harmed by an agent to seek compensation from the principal because the principal selected and appointed the agent.
The vicarious responsibility of an agency relationship applies even when the employee is not following the direct instructions of the employer. For example, even if a trucking company tells its employee, “Do not drink at all and do not drive over the speed limit for any reason,” the company can still be liable when an employee becomes drunk or speeds and causes an accident. At some point, however, the employee may so deviate from tasks related to employment that the employee is off on a “lark of his own.” For example, if the driver is supposed to travel from New York City to Buffalo, but instead takes a personal side trip to Baltimore, where the truck hits a pedestrian, that side trip is probably not the responsibility of the employer.
Applying these principles to this case (assuming the physician was an employee of the medical center), the center would generally be legally responsible for the torts (wrongful acts) of the gynecologist. Now you ask, “what about the ‘lark of his own’? Wasn’t taking all those pictures and videos for his own purposes not really part of the job?” (Now you are thinking like a lawyer—that was meant as a compliment.) It is a good question. First, this involved serious misconduct, which was a violation of basic professional ethics. Second, this videotaping was not part of the job the physician was supposed to be doing. Although it may have been for his own benefit, this deviation of good practice was closely related to and entangled with the purpose of his employment. It is perhaps analogous to the truck driver who drank at lunch and then caused the accident. It made sense, therefore, for the medical center to conclude that it would likely be responsible for the actions of this employee, and settle the case.