We have experience representing medical providers in various adverse actions, investigations, and prosecutions.Giving a Medical Examination or Providing Bed-Side Care?
With new attention to military sexual assaults, there has been more focus on patient complaints that appear to be complaints of sexual assault or harassment.
Medical providers should be aware that investigators and prosecutors are going to second guess your examination and treatment of patients based on the patient being uncomfortable.
You may, perhaps, be accused of sexual assault for performing a heart and lung examination, during a visit. For example:
Client is a medical provider initially accused of committing sexual contact by a, "fraudulent representation that the sexual contact served a professional purpose."
Six former patients alleged that when the client gave them a heart and lung examination when they presented for medical care, he didn't need to give one, or that it was done improperly.
After the Article 32, UCMJ, investigation the convening authority elected to refer five specifications to general court-martial. At trial we litigated a motion that the CA abused his discretion in referring the case to trial.
At trial we raised the motion for dismissal for failure to state an offense. The touching's had all been done with a stethoscope. At no time did any complaining witness say she was touched by his body. The judge decided to defer ruling until later in the trial.
Prior to evidence, the prosecution withdrew two specifications which left three for trial before the members. The members found the client guilty of only one of the three specifications.
Later the judge did dismiss the specification for failure to state an offense. The prosecution appealed that dismissal and the Army Court of Criminal Appeals has reinstated the charges. Now the case is pending with the Court of Appeals for the Armed Forces.
If you are a medical provider accused of improper patient care, or just want to be educated for the future, call us, because there is more to this story for medical providers.
We have recently assisted a nurse successfully challenge an allegation that he sexually assaulted a patient while providing bed-side care. The patient had a post-surgery catheter to assist with urination. The complaint was that the way the nurse tested and adjusted the catheter was sexual not professional. Note it was the “diagnosis” of the patient that was believed by law enforcement. The evidence suggests that the patient was a “difficult” patient. Beware difficult patients.
One of the issues that comes up frequently in investigations of patient care and military sexual assault is the presence and use of a “standby” or “chaperone.” Amazingly in each of my recent cases there have been either not policy or rule in place and very little training about the need for standbys. People have been relying on the sign in the waiting and examination rooms where it says a chaperone is available on request.
You don’t need a policy – do it – female patient – get a standby or chaperone, even if it delays the examination or treatment. Don’t take risks – this is preventative medicine in the same manner as prescribing medications.