Resources & Information

Updated 12/19/2023 to include footnote.

In this feature, NCMB presents issues that frequently come before the Disciplinary Committee but may not result in public action. Our hope in highlighting these topics is to help licensees avoid problems and ensure they meet appropriate professional standards.

In recent months NCMB has received an increased number of complaints that involve allegations of inappropriate touching or sexual misconduct during a physical examination with a licensee. Often these situations involve failures by the license to clearly communicate the medical necessity for a physical examination, and to adequately prepare the patient for how the examination will be conducted.

Case Study

MD is a founding partner with a large pediatric practice with more than 25 years of clinical experience. Like all physicians in his practice, MD performs sports physicals as part of his regular clinical duties. MD enters the exam room one afternoon to find an 18-year-old female who requires a sports physical to try out for her high school’s Varsity cheer team. The teen is unaccompanied, having driven herself to the appointment after school. MD introduces himself, noting that the patient usually sees one of his female colleagues. The patient explains that her mother accepted the first available appointment due to the approaching deadline for cheer tryouts.

MD performs the sports physical with no nurse or chaperone present. It proceeds without incident until MD checks the 18-year-old girl’s femoral pulse. With the patient standing before him, MD pulls back the waistband of the patient’s running shorts and reaches his other hand down to briefly check the pulse, pushing her underwear slightly to the side to position his fingers. MD does not state the reason for this part of the sports physical and does not provide a verbal warning that he will need to reach down her shorts. At MD’s touch, the teen gasps audibly, prompting MD to smile and comment, “Sorry, are my hands cold?” The patient does not respond and remains quiet for the balance of the examination. Within a few minutes, MD concludes the physical and leaves the room to complete the form for the teen patient’s school.

The patient checks out at the front desk, collects the signed form and drives home. When her mother asks how the physical went, the teen bursts into tears and says, “Please don’t make me go back to that doctor!” Surprised, the mother asks her daughter what happened. The teen tearfully describes how MD “stuck his hand down her shorts”. Horrified, the mother files a complaint with the medical board alleging sexual misconduct by MD.

MD is astonished at the complaint and deeply troubled that the teen patient felt violated. In his response to the medical board, MD expresses remorse that his actions caused such a negative reaction but maintains that checking the femoral pulse is routinely performed during a sports physical*. He is adamant that there was nothing inappropriate about how he touched the patient.

Discussion

Public awareness of sexual misconduct by licensed medical professionals is at an all-time high among patients. The case of former USA Gymnastics Womens’ National Team doctor Larry Nasser, DO, who was convicted in 2017 related to his sexual assaults of multiple young female gymnasts under the guise of providing medical care, ignited a national conversation about sexual misconduct that is still ongoing. Over the past several years, NCMB has evaluated how it handles cases that involve possible sexual misconduct by licensees and has made several changes to improve the organization’s ability to effectively address it, assist victims of sexual assault and raise awareness. On the national level, the Federation of State Medical Boards has produced updated guidelines aimed at improving medical regulatory boards’ ability to investigate and appropriately resolve sexual misconduct cases. With increased media attention on sexual misconduct in medicine, the general public has become more aware that medical boards can be a resource if a patient has a concerning encounter with a medical professional.

Since 2017, NCMB has noted a steady increase in complaints alleging some type of sexual misconduct (although the total number of cases opened in a given year remains relatively small). Allegations range from non-physical sexual misconduct by licensees such as flirting or telling dirty jokes to a patient on up to rape or giving prescriptions for controlled substances to patients in exchange for sex.

Notably, and most relevant to this article, NCMB has also observed an increase in patient reports of sexual misconduct that arise from apparent misunderstandings or inadequate communication regarding a medically appropriate physical examination. Although the specific circumstances vary from case to case, there are some commonalities. First, the patient is usually clothed when the examination is performed (e.g. they have not been asked to disrobe and don a gown or drape in preparation for a physical examination) and, as a result, does not expect the licensee to touch parts of the body that are covered by clothing or undergarments. Next, such cases typically involve a licensee who does not explain what he or she is doing or why. NCMB has seen multiple cases recently where families of minor children complained about inappropriate touching after a licensee conducted, without explanation, examinations of a child’s genitals or chest when assessing Tanner stage. Another common scenario involves licensee efforts to perform a femoral pulse check, as described in the case study.

NCMB has investigated, and taken regulatory action, in multiple cases where a licensee does, in fact, use a medical visit as an opportunity to conduct an unnecessary and inappropriate physical examination for their personal sexual gratification. However, when the incident reported is the result of a genuine misunderstanding, NCMB has observed that a complaint can be nearly as traumatic for the licensee involved as it is for the patient. It can be difficult for a licensee who feels they did nothing more than conduct a medically appropriate examination in the manner in which they were trained to understand how a patient could have perceived the exam as sexual in nature. NCMB strongly encourages licensees to familiarize themselves with its position statement entitled, “Guidelines for avoiding misunderstandings during patient encounters and physical examinations”. This resource offers a useful perspective and specific recommendations to help licensees improve their patient interactions and avoid miscommunication and misunderstandings.

Key strategies for improving patient interactions

Maintaining appropriate professional boundaries and treating every physical examination as if it is a potentially sensitive or intimate one may help to avoid sending confusing messages to patients. Demonstrating this level of consideration to patients’ comfort takes little time or effort and can help avoid negative encounters that result in patient complaints. Adopting a more proactive style of communication can be as simple as giving a brief explanation of the reason for a physical examination and outlining the specific components of the exam. For example, in the case presented above, the licensee could have said, “Now I need to take your pulse at your inner thigh to check for heart abnormalities. To do this, I will need to place my fingers in the crease of your hip and inner thigh. May I move your clothing to do this or would you prefer to pull your shorts aside so I can reach the area?” Another option would be to have the patient wear a gown during the examination to set the expectation that some hands-on inspection of the patient’s body may be necessary, while still clearly explaining the purpose of taking the femoral pulse.

Even when it may not be feasible to provide a full explanation of why an examination is needed, adopting the practice of “narrating” your care – e.g. “Now I’m going to check your internal organs. I’ll need to press on your belly to feel for any abnormalities” – so the patient knows what to expect can go a long way towards putting your patient at ease. Not all patients will need this level of consideration when undergoing routine physical examinations; it is important to assess each patient to determine their comfort level and tailor communication style to their needs. The position statement referenced above provides additional guidance on how to create a safe and respectful environment for your patients.

Conclusion

It has become quite clear that patients are more sensitive about bodily autonomy than ever before. Clinicians must adapt to this reality by ensuring they provide an environment for patients that upholds modesty and dignity. NCMB urges licensees to review their practice’s policies and procedures for conducting physical examinations to respect patient rights and protect the clinicians providing hands-on patient care. Training multiple staff members to act as chaperones and making patients aware that they have the option to request one may be helpful.

* Added 12/19/2023 - Multiple licenses have commented to question the appropriateness of including a femoral pulse check in the sports physical of an asymptomatic teen. NCMB Chief Medical Officer Karen Burke-Haynes, MD, a pediatrician with more than 25 years of clinical experience, responds: Consistent with the American Heart Association’s recommendations, the American Academy of Pediatrics continues to advise that palpation of femoral pulses to exclude coarctation of the aorta (Preparticipation Physical Evaluation (5th Edition), p. 18) be part of routine sports physicals. It would be difficult to argue that a clinician who follows AAP recommendations is performing an inappropriate exam. Whether a licensee routinely assesses femoral pulses is likely a result of how and when the clinician trained. It is certainly the case that medical education curricula are moving away from teaching some hands-on aspects of physical examination, which may explain why some licensees question the fictional licensee in the case study presented.