Medicolegal Issues

Sex with former patients: OK after retirement?

Current Psychiatry. 2009 August;8(8):25-33

References

1. Pope KS, Keith-Spiegel P, Tabachnick BG. Sexual attraction to clients. The human therapist and the (sometimes) inhuman training system. Am Psychol. 1986;4:147-158.

2. Golden GA, Brennan M. Managing erotic feelings in the physician-patient relationship. CMAJ. 1995;153:1241-1245.

3. Freud S. Observations on transference-love. In: Strachey J, ed. Complete psychological works of Sigmund Freud, standard edition, vol 12. London, UK: Hogarth Press; 1958:157-173.

4. Kardener SH, Fuller M, Mensh IN. A survey of physicians’ attitudes and practice regarding erotic and non-erotic contact with patients. Am J Psychiatry. 1973;130:1077-1081.

5. Gartrell N, Herman J, Olarte S, et al. Psychiatrist-patient sexual contact: results of a national survey, 1: prevalence. Am J Psychiatry. 1986;143:1126-1131.

6. Gartrell N, Milliken N, Goodson WH, et al. Physician-patient sexual contact—prevalence and problems. West J Med. 1992;157:139-143.

7. Roman B, Kay J. Residency education on the prevention of physician-patient sexual misconduct. Acad Psychiatry. 1997;21:26-34.

8. Pope KS. Sex between therapists and clients. In: Worrell J, ed. Encyclopedia of women and gender: sex similarities and differences and the impact of society on gender. New York, NY: Academic Press; 2001;955-962.

9. Pope KS, Vetter VA. Prior therapist-patient sexual involvement among patients seen by psychologists. Psychotherapy. 1991;28:429-438.

10. Simon RI. Clinical psychiatry and the law, 2nd edition. Arlington, VA: American Psychiatric Publishing, Inc.; 2003.

11. American Psychiatric Association. The principles of medical ethics with annotations especially applicable to psychiatry. Available at: http://www.psych.org/MainMenu/PsychiatricPractice/Ethics/
ResourcesStandards/PrinciplesofMedicalEthics.aspx. Accessed May 4, 2009.

12. American Medical Association Council on Ethical and Judicial Affairs. Sexual misconduct in the practice of medicine. JAMA. 1991;266:2741-2745.

13. American Psychological Association. Ethical principles of psychologists and code of conduct. Available at: http://www.apa.org/ethics/code2002.html. Accessed May 4, 2009.

14. Gruenberg PB. Boundary violations. In: Ethics primer of the American Psychiatric Association. Washington, DC: American Psychiatric Association; 2001;1-9.

15. Simon RI, Shuman DW. Clinical manual of psychiatry and the law. Arlington, VA: American Psychiatric Publishing, Inc.; 2007.

16. Sadock BJ, Sadock VA. Kaplan and Sadock’s synopsis of psychiatry, 10th ed. Baltimore, MD: Lippincott Williams & Wilkins; 2007.

17. Clemente v Roth, 171 Fed. Appx. 999 (4th Cir. Md. 2006).

18. Hoopes v Hammargren, 102 Nev. 425, 725 P.2d 238 (1986).

19. Restatement (Third) of Torts: Liability for Physical Harm, ch 8, §45 (2007 draft).

20. Prosser WL, Keeton WP, Dobbs DB, et al. Prosser and Keeton on torts, 5th ed. St. Paul, MN: West Publishing Co.; 1984.

21. Restatement (Third) of Torts: Liability for Physical Harm, ch 8, §46 (2007 draft).

22. Minnesota Statutes §148A (2008).

In several cases involving nonpsychiatric physicians,¹⁷ courts have held that consensual doctor-patient sex is not malpractice, though it might represent some other form of wrongdoing. The argument is that sex with a patient is an intentional act that is never a professional service, whereas malpractice by definition arises unintentionally from negligence while rendering professional services. Other courts, however, have held that doctor-patient sex can be malpractice because it breaches the physician’s fiduciary relationship and can constitute an abuse of power.¹⁸

After retirement, physicians still have responsibilities to former patients: to protect records, to respect confidentiality, and to release information upon proper requests. Some fiduciary duties to patients survive the conclusion of treatment, and behavior that breaches those responsibilities can bring legal action.

Psychiatrists should realize that many former patients remain vulnerable because of feelings “left over” from therapy. Therefore, potential civil actions against a retired psychiatrist might include:

Clinical Point

Initiating sex with a former patient meets the legal criterion of having a high probability of causing mental distress

A suit for intentional infliction of emotional distress. This tort action requires proving more than mere insults or indignities; it occurs only when someone “by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.”¹⁹ Initiating sex with a former patient is strongly disapproved and meets the legal criterion of having a high probability of causing mental distress.²⁰

A suit for negligent infliction of emotional distress. Modern law permits recourse for negligently inflicted emotional distress when harm occurs in “the course of specified categories of activities, undertakings, or relationships in which the negligent conduct is especially likely to cause emotional disturbance.”²¹

Suits for exploitation. Some jurisdictions allow suits against therapists who have sex with former patients, irrespective of therapists’ license status. For example, Minnesota allows lawsuits for “sexual exploitation” if the former patient’s capacity to consent was impaired by emotional dependence on the psychotherapist.²²

Actions by licensing boards. Many retired practitioners maintain their medical licenses. Retired-but-still-licensed psychiatrists can be subject to professional disciplinary actions.

DO YOU HAVE A QUESTION ABOUT POSSIBLE LIABILITY?

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