If a patient claims sexual misconduct

A. Don't confront the accused doctor yourself. If there's a lawsuit, anything he says to you could be used as evidence against him in court. If the subject does come up in conversation, and he wants to unburden himself, suggest that he consult a psychiatrist instead. The psychiatrist will have more experience than you do in dealing with sexually aberrant behavior, and his conversations with the doctor-unlike yours-will be protected by doctor-patient privilege.

Report the allegation to your group's managing partners, since they and the group could be named as co-defendants. They should urge the doctor to report the potential lawsuit to his insurer. He can then discuss the accusation with his assigned attorney. Those conversations will be protected, too, by the attorney-client privilege.

Because of the sensitive nature of a sexual misconduct claim, and the incendiary effect the charge would have on a jury, such cases are typically settled before trial. If they do go to court, however, there are possible defenses. Defense attorneys might focus on the patient's mental stability, and the possibility of delusional ideation, particularly if there's a documented history of mental illness or prior accusations of a similar nature.

If the group and the accused doctor have different malpractice carriers, the claim should be reported to the group's insurer, as well. If the doctor is an employee, a claim against the group could be based on the theory of vicarious liability under which the employer may be responsible for the negligent acts of its employees. However, that theory would apply only if the acts took place within the scope of the doctor's employment. Since groping a patient is obviously not within that scope, the group would have a strong defense.

The group, or its managing partners, could also be accused of negligent hiring if the plaintiff could prove that they had been careless in checking the accused doctor's background. For example, if they had failed to discover that he'd been accused of similar offenses in prior lawsuits, or there had been reports to the state medical board about other instances of sexual misconduct, they could be accused of negligence for putting patients in danger of a sexual "predator."

Finally, no one involved in the case should discuss it outside the office, since any publicity could be very damaging for the practice. If there's a quick settlement, the defense attorney could insist that it stipulate that the plaintiff will not contact the press.

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com