Foran Glennon Palandech Ponzi & Rudloff

December 2014

Duty? What Duty? An Analysis Of A Physician’s Duty To Report Complaints Of Sexual Misconduct

Kelly A. Pachis

What is the duty of a physician to report a patient’s complaint of sexual misconduct of another physician?  This question arises in the following context. A patient alleges sexual assault by Doctor A. The patient voices this complaint to Doctor B.  Is Doctor B required to report Doctor A to the Department of Professional Regulation? What impact, if any, is there if Doctor B believes the patient is infatuated with Doctor A or if Doctor B knows the patient is mentally ill? This article discusses the issue of whether, under the Medical Practice Act, a physician’s failure to report a complaint of sexual misconduct by another physician is grounds for disciplinary action.

The governing statute is the Medical Practice Act of 1987, 225 ILCS 60/1, et seq. Section 22(a) of the Act provides a list of grounds upon which a decision may be based to revoke, suspend, or otherwise discipline a medical license. There are 44 grounds listed in which the Department of Professional Regulation may take disciplinary actions. Of those 44, there are 3 relevant to our inquiry.

Section 22(a)(20)—Committing an Act of Sexual Misconduct.  The first ground is No. 20, which provides that disciplinary action may be taken for “immoral conduct in the commission of any act including, but not limited to, commission of an act of sexual misconduct related to the licensee’s practice.” 225 ILCS 60/22(a)(20). No. 20 does not encompass the failure to report a complaint of sexual assault. While it is clear that this section renders committing an act of sexual misconduct a ground for disciplinary action (against Doctor A), it does not discus another physician’s responsibility, if any, to report a patient’s complaints of sexual assault by another physician.

Section 22(a)(22)—Willful Omission to File or Willfully Failing to Report an Instance of Suspected Abuse.  The second ground is No. 22, which states that action may be taken for a “willful omission to file or record, or inducing another person to omit to file or record, medical reports as required by law, or willfully failing to report an instance of suspected abuse or neglect as required by law.” 225 ILCS 60/22(a)(22).As with No. 20, this provision is unlikely to encompass the failure to report a complaint of sexual misconduct by Doctor A unless the Department finds that Doctor B willfully failed to report Doctor A. In simpler terms, for subsection 22 to serve as a ground for discipline, there must be evidence that Doctor B’s failure to report Doctor A was deliberate and with the specific intention of causing harm.

Section 22(a)(5)—Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.  The third ground is No. 5, which provides that disciplinary action may be taken against a physician who engages in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public. In determining what constitutes such conduct, the Disciplinary Board considers, among other things, whether the questioned activities: (a) are violative of ethical standards of the profession, with said standards including respecting the rights of patients and providing service with compassion and respect for human dignity; (b) constitute a breach of the physician’s responsibility to a patient; and (f) are reasonably likely to cause harm to any member of the public in the future.” It is unlikely that Doctor B’s alleged failure to report would fall within the purview of (a)(5).

With regard to the violation of ethical standards, it would be a stretch for the Department to allege Doctor B did not provide service with compassion and respect for human dignity by not reporting the patient’s complaint. Further, it might even be argued that given the physician–patient relationship, Doctor B had no right to break privilege to report the patient’s claim to anyone other than another treating physician.

Similarly, Doctor B’s actions of not reporting the patient’s complaint are not likely to fall within the purview of (f), as (f) refers to direct actions by the doctor such as drug or alcohol addiction. Additionally, the failure to report Doctor A would not fall under (f) because the patient is always in the position to report Doctor A’s alleged conduct, thereby avoiding future public harm.

Section 24—Reporting a Violation.  In addition to the grounds for disciplinary action set forth in Section 22, Section 24 should also be considered. Section 24 is entitled “Report of Violations” and addresses a physician reporting information to the Disciplinary Board about another physician. It states in pertinent part that “Any physician licensed under this Act . . . may report to the Disciplinary Board any information the physician may have that appears to show that a physician is or may be in violation of any of the  provisions of Section 22.”  225 ILCS 60/24.

Doctor B’s failure to report the patient’s complaint should not be grounds for disciplinary action under Section 24. This is because Section 24 provides that Doctor B could have reported the patient’s complaint but does not require Doctor B do so. Furthermore, the reportable information is subjective: “any information…that appears to show that a physician is or may be in violation of the provisions of Section 22.” Information that appears to show a physician violated or possibly violated a provision of Section 24 can vary depending upon who the information rests with. For example, Doctor X may believe that information reported by a patient about Doctor Y conclusively shows Doctor Y violated a provision of Section 22. However, it is possible that another doctor, after being provided with the exact same information, does not believe the information shows Doctor Y violated any of Section 22’s provisions. This is where the credibility of the patient and of the doctor being complained of comes into play.

The determination of whether a physician’s failure to report a patient’s complaint of sexual misconduct is very fact-sensitive. While the three provisions of Section 22(a) are unlikely to result in disciplinary action, they must still be carefully considered when a physician is faced with a situation such as this. The analysis becomes even more fact-sensitive when dealing with Section 24. If presented with a complaint, a physician would be wise to take a careful look at whether the reported conduct could be interpreted as violative of any of the 44 provisions of Section 22(a), regardless of how unlikely it may be.