Weiss Zarett Brofman | Sonnenklar & Levy, P.C. | Attorneys At Law

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Chaperones: Needed Now More Than Ever

On Behalf of | Dec 1, 2016 | Healthcare Law

In today’s uncertain and threatening times, physician assistants (PA’s) can be certain of one thing; a complaint of sexual misconduct brought by a patient is guaranteed to bring the full weight of the Office of Professional Medical Conduct down upon the PA in an immediate and unyielding fashion. Moreover, sexual misconduct is no longer exclusively defined as the act of sexual assault. Rather, medical license revocations may be based upon allegations ranging from inappropriate touching, suggestive comments or leering to sexual harassment—of both a physical and verbal form. Moreover, many of these permutations will most certainly bring about criminal charges being levied against the PA.

But, what if the PA is innocent?  How do you defend yourself? Even if the PA is eventually cleared, does the process restore the damage it has wrought? Can anyone define such a result as a “victory”?

Is it a “victory” to have suffered the destruction of your good name through the media, incurred the expense of defending yourself and witnessed a significant loss of income, patients and referral sources? This article focuses upon the wrongly accused; the innocent PA victimized by false accusations and a flawed disciplinary system. Unquestionably, any PA, forever required to explain the circumstances of such heinous accusations (to managed care companies, hospital credentialing committees and a host of other entities) will never mistake exoneration for “victory”.

Therefore, how do PA’s avoid such a threat?  How do PA’s manage this risk? In significant part, the risk can only be managed through the proper and relentless use of chaperones. However, chaperones, under the norms of a new millennium, do not fall under the standards of the 1950’s. Complaints of sexual misconduct today are of a heterosexual, homosexual and transsexual nature. Chaperones have therefore become relevant (and necessary) in certain aspects of all patient interactions, regardless of gender or sexual orientation.

Moreover, the benefits of using a chaperone are not garnered by simply having someone standing in the corner or doorway of the examination room, uninvolved and untraceable from any later review of the medical record. To gain the benefit of chaperone, the use of that chaperone must be carried out in an appropriate fashion. In light of record levels of employee turnover, a PA who claims a chaperone’s presence to refute allegations of sexual misconduct, but is unable to identify or produce that chaperone, is left defenseless. Therefore, every chaperone should be required to initial each patient’s medical record as confirmation of both of their presence and their identity. The medical practice should also maintain an up to date listing of employees’ initials and home addresses, and even make every effort to secure departing employees’ home addresses.

A chaperone should also remain present during the entirety of time that the PA interacts with a disrobed (even if only partially) patient. If a patient objects to the gender of a chaperone, attempts to accommodate that objection should be made. However, if accommodations are not possible, the examination should not proceed without a chaperone. Similarly, if a patient refuses to allow a chaperone to be present, the PA should cancel that patient interaction or make arrangements for the treatment to be carried out by another provider. In either scenario, the PA (and ideally the chaperone too) must document, in detail, the full course of events.

The hard reality is that there is no secret method to guarantee that a patient will not fabricate allegations of sexual assault, misconduct or harassment. However, who will prevail when faced with such charges will be determined by whether the PA is armed to defend (or even preclude) such allegations or not. When one compares the minimal inv