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Sexual Relationships with Patients

Maxwell J. Mehlman, J.D.

Sexual relationships with patients are problematic, not only because they may be unethical and may compromise patient care, but because they may lead to civil actions for damages, criminal actions, and disciplinary proceedings by state medical boards.(1) While concern focused originally on relationships between patients and psychiatrists, it is now generally recognized that the problem extends to non-psychiatric physicians as well.

But how far does the taboo extend? Suppose a state medical board seeks to discipline a physician for having an affair with a patient, but both the patient and the physician insist that the patient consented to the relationship. Should the board dismiss the proceeding?

Obviously, not if the patient is a minor. Consent is not a defense to a charge of statutory rape or sexual imposition on a minor.

But what if the patient is a competent adult?

The American Medical Association Council on Ethical and Judicial Affairs states categorically that "[s]exual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct" (Opinion 8.14). In an article in JAMA announcing the policy, the Council rejected the position that sexual relationships should be permitted with the patient's consent on the ground that "the relative position of the patient within the professional relationship is such that it is difficult for the patient to give meaningful consent to such behavior."(2)

It is interesting that the AMA categorically condemns sexual relationships to which patients allegedly consent. The American Bar Association, for example, although taking a dim view of these relationships, does not absolutely rule out the possibility that a client has given effective consent:

The lawyer may be called upon in a disciplinary or other proceeding to show that the client consented, that the consent was freely given based on full and reasonable disclosure of the risks involved, and that any ensuing sexual relationship did not in any way disadvantage the client in the representation; that is, the attorney's judgement remained independent, the representation proceeded free of conflicts, the privilege was not compromised and the other ethical obligations to the client were fulfilled.(3)

Moreover, courts have indicated that, despite the physician's greater power within the relationship, they are willing to consider on a case- by-case basis whether to uphold agreements between patients and physicians in which the patient agrees not to sue the physician for malpractice.(4)

Why then does the AMA absolutely prohibit sexual relationships with consenting adult patients? Perhaps it would be too expensive or time-consuming to scrutinize the propriety of these relationships and the effectiveness of consent on a case-by-case basis. For example, the Supreme Court of the United States has upheld maximum age limits for police officers against the challenge that they violate the Constitution by depriving the officers of the ability to show that they in fact are physically capable of doing the job past the age cut-off.(5) Or perhaps the AMA feels that there simply are no circumstances in which a patient could give valid consent.

What about sexual relationships after the patient-physician relationship has ended? You would think that these would be OK, so long as the physician did not abuse the relationship. But the AMA takes the position that ending the professional relationship may not be enough: a relationship still may violate professional ethics "if the sexual contact occurred as a result of the use or exploitation of trust, knowledge, influence, or emotions derived from the former professional relationship."(6) When would this be the case? The only other guidance that the AMA gives is of little help:

Relationships between patients and... physicians may also include considerable trust, intimacy, or emotional dependence. The length of the former relationship, the extent to which the patient has confided personal or private information to the physician, the nature of the patient's medical problem, and the degree of emotional dependence that the patient has on the physician, all may contribute to the intimacy of the relationship. In addition, the extent of the physician's general knowledge about the patient (i.e., the patient's past, the patient's family situation, and the patient's current emotional state) is also a factor that may render a sexual or romantic relationship with a former patient unethical.

Is the idea that the more intimate the former patient-physician relationship, the less ethical a subsequent sexual relationship? Or is it the other way around?

Some commentators have suggested that the way to deal with sexual relationships with former patients is to impose a minimum waiting period following the termination of the patient-physician relationship. Appelbaum and his colleagues, for example, propose three to six months.(7) This suggestion raises some peculiar practical problems, however. If the patient and physician, for example, have discovered a yen for each other, what kind of relationship are they permitted to engage in while waiting for the mandatory period to expire? In any event, the AMA rejects this idea, citing research that shows that patients continue to have strong feelings about psychotherapists for five to ten years after the therapeutic relationship ends. For further reading on some of the legal ramifications of sexual relations with patients, I suggest:

J. Barker, "Comment: Professional-Client Sex: Is Criminal Liability an Appropriate Means of Enforcing Professional Responsibility?" 40 U.C.L.A. Law Rev. 1275 (1993).
T. Dobash, "Note: Physician-Patient Sexual Contact: The Battle Between the State and the Medical Profession," 50 Wash. & Lee Law Rev. 1725, 1729 (1993).

January 1, 2000

NOTE: We regret that we cannot answer personal medical questions.

(14) Comments have been made

Reaching out

I have a question for Jamie Current and Happy so far. I am wanting a romatic relationship with my Dr. but he is being really careful until my treatments are over. How do I convince him that I'm not out to hurt him? Isn't there anyway we can get together in privet? It seams the laws out here in the west are unbelievable. I mean the Drs. here can't do anything. I really like this Dr. to and I know he likes me.

Posted Sun, Apr. 14, 2013 at 9:06 pm EDT

Naomi

what if the patient is elder and in a assisted living place and is having a romantic relationship with her caregiver nurse. I just witnessed this and I find it hard to believe she is with him for love, he is at least 85 plus and she is young and beautiful ( from a foreign country) and I just don't understand why she is involved with her patient in this situation.

Posted Mon, May. 28, 2012 at 2:49 pm EDT

Nancy

Anyone hurt by an inappropriate relationship with a doctor or counselor may contact the state licensing board for that person's specialty.

Posted Mon, Mar. 26, 2012 at 3:24 am EDT

Jamie Current

I have had a romantic relationship with my doctor for two years and I do not in the least feel like a victim. I understand that it is not an ideal situation for my treatment. But I am a consenting adult, and think the pros have far outweighed the cons. My doctor does not know far more about me than I do about him; in fact, I know at least as much about him, because--we have a RELATIONSHIP!

Posted Wed, Sep. 21, 2011 at 6:37 pm EDT

Happy so far...

I need my orthopedic both as a patient and as friend. I was also a drug rep so I knew him professionally. We saw each other about 8 months before he discharged me. It has been 3 yrs later and we are still going strong... He flirted with me first while during professional interactions, as the patient he was the utmost professional. I wasn't aware of the code of ethics. I do not feel taking advantage of in any way. We love each other and are happy so I believe there times where two professionals meet and build a relationship. Our relationship came from our professional interactions not the patient/doctor relationship. Can there be relationships that develop into meaning relationship out of the doctor/patient relationship? Yes I believe so... we are happy so far...

Posted Sat, Sep. 10, 2011 at 9:15 pm EDT

system failure!!!!!

I had a doctor start a sexual/emotional relationship with me, while I was her patient. She knew all my personal problems, issues, vulnerabilites, etc and exploited me, used me etc. I have fied charges. I have proof of relationship as per emails, voicemails, texts, pictures. OPMC acknowledges that there is no question that an innappropriate sexual relationship existed. however in NYS I was told IT IS NOT MISCONDUCT FOR A DOCTOR TO HAVE A SEXUAL RELATIONSHIP WITH A PATIENT UNLES THE dR, IS A PSYCHIATRIST. how could this be? OBVIOUSLY THE A.M.A CLEARLY STATES DIFFERENTLY. WHERE DO I GO FOR JUSTICE NOW THAT MY LIFE HAS BEEN RUINED AND i WAS JUST A PLAYTHING.i WAS ON THE BEACH ONE MORNING GETTING MY FEET MASSAGED BY THE DOCTOR WHO TOLD ME IF i PUT MY HEART IN HER HANDS SHE WOULD NEVER BREAK IT AND LATER THAT NIGHT SHE SAID HER HUSBAND FOUND OUT ABOUT OUR AFFAIR AND SHE HAD TO END IT. i SAID YOU TOLD ME YOU WOULD NEVER HURT ME, SHE SAID i DIDN'T THINK i WOULD BUT i AM. eND OF MY RELATIONSHIP, NO MORE DOCTOR, NO MORE FRIEND, CONFIDANT, NOTHING BUT TEARS, HELPLESSNESS, SELF-CONTEMPT AND RAGE RAGE AND RAGE. o DID i SAY RAGE!!!!!!!

Posted Tue, Sep. 6, 2011 at 9:53 pm EDT

Tyrone Irven

Took my lady in for surgery 2 weeks ago to the hospital she works at and was introduced to surgeon that would perform work. She is a nurse and he is a doctor there. Anyway last night they were caught having sexual relations at her home and now she admits they are seeing each other and he is going to be with her after he divorces his wife. Where is the Dr / patient / coworker ethics? Im not only hurt but very upset, guess money comes before love. Who can I call!!

Posted Sat, May. 14, 2011 at 3:31 pm EDT

In a quandry

The married doctor I work for is having an affair with a married patient.Both have small children and the patients wife babysits for my doctor. What do I do?

Posted Thu, Mar. 31, 2011 at 7:21 pm EDT

ashamed

I had an affair with a doctor, i was a medical student at the time, i was married and very vulnernable. After my second visit he asked me out. He told me he was really into young students and told me I was the oldest person he's dated since his divorce, which was a long time ago. I should have taken that as a hint, but my marriage had not been good for awhile and he made me feel alive again. We only saw each other for awhile, had sex then he dumped me. But he also used his authority to have a mole removed from my side with out my being charged and gave me some medication that he did not account for. It was not a narcotic, but he was still underhanded about it. I was too ashamed to report him because of my situation, but it's been 4 years and I become angry that I had no recourse. I'm just afraid that he is still preying on other young and older women.

Posted Fri, Feb. 11, 2011 at 11:40 pm EST

Difficult situations

I had a relationship with my last ob/gyn that was very friendly. We laughed a lot, talked about gardening and yard pests, and I enjoyed our brief prenatal visits. I got the feeling this doctor liked me. I certainly liked him. He had a great personality as evidenced by how popular he was with all of his patients. These women loved him. Their husbands and partners liked him, too. He's also gay. I do believe that he developed quite an emotional attachment to me, though. This was rather confusing. I came to believe that he wasn't totally gay, either. Talk about confusing and uncomfortable! He missed my delivery. It was a horrible experience. But I was so mad I left his care and will never return. I also filed a 13 page grievance against him and the last page described his lack of professional and emotional boundaries. I didn't claim sexual harassment because I didn't think there was a strong enough case for that. He just developed a huge crush on me.I understood how it happened. I honestly still miss him to this day. But it's good things ended. I hope he can learn to be more careful with his emotions with other patients in the future.

Posted Sat, Oct. 9, 2010 at 11:57 pm EDT

Able to Read

"Concurrent with the physician-patient relationship". Concurrent means at the same time. That is why the policy goes on to state "At a minimum, a physician's ethical duties include terminating the physician-patient relationship before initiating a dating, romantic, or sexual relationship with a patient." It does state that there may be additional reasons not to ever start a relationship (psychiatry is one example). Read the actual AMA policy E8.14 rather than this somewhat edited and self serving interpretation.

Posted Fri, Aug. 20, 2010 at 10:53 pm EDT

Disgusted

It doesn't seem right that people choose to have affairs and then want to sue the other person because of their own poor choices. Stop having sexual relationships with your caregivers. If you have one come on to you, say no, get another doc and then turn them in. Have that much responsibility for yourself. You shouldn't sell your houses, risk your jobs, or otherwise put inappropriate trust in any other human being. Don't give up your life in exchange for the chance of commitment; get the commitment first.

Posted Sat, May. 22, 2010 at 11:59 am EDT

Audrey

I had a two year relationship with my childhood psychiatrist. I gave up my house and disability benefits to move in with him and get married. He abruptly ended the relationship in a very abusive manner throwing me out with nowhere to go. He says that he only used me for sex and had no other interest. The resultant exacerbation of my psychiatric illness has caused me to lose my job. What are my rights? How can I prevent another from being hurt.

Posted Mon, Apr. 26, 2010 at 2:43 am EDT

dhickman

I need guidance. I have lost my job due to a relationship with my doctor. I have proof of affair. Want help.

Posted Wed, Apr. 14, 2010 at 10:12 pm EDT

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