Healthcare providers in the state of New Jersey face an increasing risk of defending allegations of sexual misconduct following the “Me-Too” movement and the recent passage of Attorney General Administrative Executive Directive No. 2021-3[1]. In describing his administration’s commitment to crack down and prevent sexual misconduct by licensed professionals in New Jersey, Governor Phil Murphy stated that “[s]exual misconduct is completely unacceptable in any workplace, but it is especially reprehensible when it happens behind the closed doors of doctors’ offices, massage therapy rooms, and other places where licensed professionals exploit the vulnerability of patients and clients who trust them.”[2] While there is no doubt that this is an important area for reform, providers should consider proactive steps to prevent against civil or criminal exposure from unsubstantiated allegations of sexual misconduct in civil lawsuits arising from treatment where the patient is alone with the provider. This is the classic “he said, she said” scenario where physicians and other licensees are unfortunately all too often subjected to extensive litigation in civil actions and/or medical board actions. In addition to the monetary expense, providers are unnecessarily exposed to emotional stress and reputational scrutiny.
In order to prevent these situations, the presence of a chaperone during an examination , while not required unless requested by a patient, may substantially prevent the initiation of frivolous claims against providers. In New Jersey, both the patient and the provider have the right to refuse treatment if an acceptable chaperone is not present.[3] This means that a patient has the right to request, and receive, a chaperone acceptable to the patient during rectal, genitalia, breast and pelvic examinations.[4] Similarly, if a provider feels uncomfortable by a patient for any reason, the provider may communicate his or her request to have a chaperone present to the patient. If the patient declines this request, the licensee may also refuse to provide further care as long as the provider discusses with the patient the risks of not receiving further care.[5] By regularly incorporating the use of a chaperone, the number of instances in which a lone provider is especially vulnerable to allegations of sexual misconduct is reduced.
While a practice may not have the resources to routinely utilize a chaperone at the election of the provider, it is critical for all licensees to consider taking affirmative steps to mitigate risk from interaction with a hypersensitive patient. In the context of a potential licensing board review, both “sexual contact” and “sexual harassment” are defined to incorporate a reasonable person standard of what constitutes action that is offensive or otherwise sexual in nature.[6] All too often, patients who later assert complaints of sexual misconduct did not act any differently from other patients during their interactions with the provider. During civil lawsuits, former patients will claim that he or she felt offended and experienced emotional damages by seemingly innocuous statements made by a physician. Licensees must always consider the language used in communications with patients, as all patients are unique in the experiences and viewpoints that form their perception of a physician’s conduct. In addition, practices can take steps to prevent patient complaints and record these measures, beginning as soon as the initial patient intake.
How Frier Levitt Can Help
Frier Levitt has a wealth of experience defending physicians and other licensees in civil litigation of all varieties, including alleged sexual misconduct. We have also successfully defended licensees during all manners of inquiry, from the purely administrative to criminal actions. Call Frier Levitt today if you have been notified of a patient complaint that was filed against you or if you want to mitigate risk of civil litigation exposure for your practice.
[1] See ag-directive-2021-3_DCA-Sexual-Misconduct-Prosecutions.pdf (nj.gov)
[2] See Press Release New Jersey Division of Consumer Affairs Press Release (njconsumeraffairs.gov).
[3] See N.J.A.C. 13:35–6.23(c), (d).
[4] See N.J.A.C. 13:35- 6.23 (a), (b).
[5] See N.J.A.C. 13:35–6.23(e).
[6] See N.J.A.C. 13:35–6.3(b)(4),(5).
