Second in a series
Last month’s column highlighted certain practice acts and regulations that address or can be used by licensing agencies to address sexual misconduct with patients. This month’s column examines the findings of some dental licensing boards faced with the issue of dentists’ sexual misconduct with patients.
Dentists should be aware that the likelihood that a state licensing board will institute disciplinary action against them for engaging in sexual misconduct with a patient is high.
In states where the licensing boards are afforded some degree of discretion in interpreting what is "unprofessional conduct," "immoral conduct," "dishonorable conduct" or other similar language used in dental practice acts, the boards can make findings of sexual misconduct and impose penalties on licensees if the particular facts of a case warrant such.1,2
In a case before the Court of Appeals of Minnesota, a dentist sought judicial review of a dental board’s order suspending him indefinitely from the practice of dentistry and imposing conditions for reinstatement for, among other reasons, "conduct unbecoming a person to practice dentistry."3 One of the violations alleged that the dentist engaged in sexually inappropriate touching of a patient. The dentist had, while explaining head and neck pains, "ran his hand down the side of her breast and onto her leg and groin area."3 The state appellate court held that the board’s finding "that the touching was irrelevant to any professional service supports the conclusion that [the dentist’s] personal conduct discredited the profession of dentistry and that he was making suggestive, lewd, lascivious or improper advances to a patient."3(at 517–8)
While you undoubtedly understand that sexual contact between a doctor and a patient that is not consensual or is an otherwise "illegal" touching of a patient would be of concern to a licensing board, you may not know that licensing boards do not generally "approve" of consensual sexual contact either. And courts generally have supported licensing agency disciplinary actions for consensual sexual relations between patients and health care practitioners.4–8 Courts may even prefer that issues such as consensual sexual relations with patients be handled by licensing boards.
For instance, in an Alabama case holding that consensual sexual relations with a doctor during the time a doctor-patient relationship existed was not a malpractice case, a state appellate court justice in a concurring opinion indicated that the licensing agency that had the authority to act on immoral, unprofessional conduct under Alabama laws was the appropriate forum for such cases.9 In addition, courts have upheld those decisions in which licensing agencies have disciplined licensees for consensual sex acts with patients that did not occur in the doctor’s office or where diagnosing and treatment actually occurred as well.6
The licensing agency perceived such conduct as equally damaging to the profession and harmful to the public and, thus, could not be relied on in defense of the disciplinary proceedings or used as grounds to overturn the licensing agency’s disciplinary decision.6,10
The Massachusetts dental practice act authorizes the Board of Registration in Dentistry to take disciplinary action against a dentist who is "guilty of deceit, malpractice, gross misconduct in the practice of his profession, or any offense against the law ... ." As reported in Roe v. Federal Insurance Co., the Massachusetts Board of Registration in Dentistry has concluded that the patient’s consent would not exonerate the dentist because "[a] dentist who engages in sexual activity with a patient who has come for dental treatment is guilty of gross misconduct in the practice of his profession."11(at 47) The Board suspended the dentist’s license to practice dentistry.
A California appellate court also held that the Board of Dental Examiners could discipline a dentist for engaging in allegedly consensual sexual relations with two female patients.10 The administrative charges stemmed from improper sexual contact through misuse of craniosacral therapy in treating temporomandibular joint, or TMJ, problems. The dentist argued that the Board could not discipline him because the sexual relations were outside of his professional association with one of the patients and were, in fact, consensual sex between adults in both cases.
One of the patients testifying at the Board’s hearing stated that she was uncomfortable after the first treatment session because of the manipulation and placement of the dentist’s hands during the session. However, she continued the treatment because she trusted the dentist because he was very patient when he removed her fillings, which occurred several months before the TMJ treatment. The dentist later entered into consensual sexual relations with the patient. The Board found, however, that the seduction of the patient was connected to the dentist’s professional position and conduct as the patient’s treating dentist. The Board determined the dentist "abused his professional position, [and] violated his patient’s trust ... ."
The second patient received TMJ treatment from the dentist after an automobile accident.10 A few years later she began a second series of TMJ treatments, also owing to accidents. During this time she was coping with her mother’s illness and subsequent death. The dentist began to make personal comments to the patient and the sessions "took on sexual overtones."10(at 799)
The patient said she trusted the dentist "because he had helped her before, he was a doctor and a professional."10(at 799) They began a sexual relationship. The Board took disciplinary action finding that his behavior constituted sexual misconduct and unprofessional conduct.10(at 791) The state appellate court, in upholding the Board’s decision, stated that "there was substantial evidence to support a finding that the [dentist] used his status and authority to win his patients’ trust, take advantage of their insecurities and induce them to participate in a sexual relationship."
The court found that "he misused the treatments to create an emotional environment to foster dependency and an illusion of trust. He used his knowledge of his patients’ personal problems and his professional skills to play upon their emotional needs. ... He then violated his patients’ trust ... by seducing them into a sexual relationship."10(at 803)
As you see, the fact that a patient has consented may not be considered relevant by licensing agencies, depending on the particular facts of the case.
The dentist also should be aware of the potential risks involved in a consensual sexual relationship from what some have called a "predatory patient." This is a patient who wants to be involved with a professional person who has stature, standing and probably a better-than-average income, such as a dentist, for his or her own personal gain. This conduct often may be repetitive on the part of the patient. Some would argue that the attraction to the professional does not mean the patient is "predatory." However, in reading a couple of the cases closely, one can pick up how the scenario might develop once the relationship breaks up.
In one case, the relationship between a client and a professional—an attorney—ended in a fee dispute, with the client threatening to disclose the details of the consensual sexual relationship to the professional’s wife unless he wrote off the bill.12
In a Massachusetts case, the patient and the physician had an agreement whereby the doctor would pay for the patient’s counseling and money for maintenance. He also would provide for her after his death, in exchange for the patient’s not pursuing civil, criminal or administrative remedies and for not telling his wife.13 The doctor had provided more than $41,000 toward the support of the plaintiff/patient. Obviously, since this was a malpractice case, vis-a-vis a contract case, the patient didn’t keep her part of the agreement. But these cases do demonstrate the types of "problems" dental professionals could encounter in addition to the dental board disciplinary actions. And it is not too far-fetched to see how a patient could do the same repeatedly.
One might ask, "What does the ethics of the profession say on the subject of sexual conduct?" The answer for dentists should begin with the Principles of Ethics and Code of Professional Conduct,14 or the Code, which governs the profession of dentistry. The introduction to that document begins, "The dental profession holds a special position of trust within society. As a consequence, society affords the profession certain privileges that are not available to members of the public-at-large. In return, the profession makes a commitment to society that its members will adhere to high ethical standards of conduct."14
In Section 5, the principle is veracity, and the document states in part, "Under this principle, the dentist’s primary obligations include respecting the position of trust inherent in the dentist-patient relationship ... ." Clearly, "trust" is considered inherent in the patient-dentist relationship by the profession, which adopts its Code through the profession’s governance mechanism. (The provisions or any changes to the provisions of the Code must be approved by a two-thirds vote of the ADA House of Delegates.)
While the profession may consider trust inherent in the dentist-patient relationship, some dentists may disagree that "trust" is a component of the patient-dentist relationship, at least to the extent or degree that it exists in the patient-physician relationship. For example, in a Canadian case, the "defendant dentist argued that the role of the dentist is different to that of a physician since there is no exchange of confidential information that would give rise to the relationship of trust that exists between a physician and his or her patients."15 The Canadian court disagreed, stating the following (the emphasis is ours):
The plaintiff and the defendant were in a fiduciary relationship while the plaintiff was in the defendant’s office. Medical professionals are generally held to stand in a fiduciary relationship with their patients. They hold the power to advise and treat the patient and can frequently do so in a unilateral way. The patient is also generally vulnerable to and at the mercy of the power, which the physician holds. The fact that the defendant in this case was a dentist as opposed to a medical doctor did not materially alter those considerations.16
Generally, American courts will treat the dentist-patient relationship exactly the same as the physician-patient relationship (see W v. H17; there are many other cases holding the same). For example, in one case discussed above, the court, in upholding the licensing agencies’ discipline of a dentist, held that there was evidence the dentist "violated the patient’s trust."10(at 803) There was no discussion about whether the patient should or should not have "trusted" the dentist as part of the dentist-patient relationship. The court supported the agencies’ determination that the dentist "abused his professional status and knowledge," violating his patients’ trust by inducing the sexual relationships. Again, no discussion, one way or the other—trust was accepted and assumed to be part of the patient-dentist relationship.10,18,19 Arguing that there is a difference between the physician-patient and the dentist-patient relationships because the fiduciary-trust aspects are different just will not succeed in a court of law.
The ADA House adopted a provision to the Code in 2002, which states, "Dentists should avoid interpersonal relationships that could impair their professional judgment or risk the possibility of exploiting the confidence placed in them by a patient."14 A dentist contemplating a dating or sexual relationship with a patient likely would lose objectivity in the professional relationship and, while not intending to do so, likely would exploit the patient’s confidence in him or her.
Patients believe their dentists are placing the patients’ oral health foremost in their relationships. It is somewhat disingenuous to argue that a dentist contemplating a dating or sexual relationship with a patient is placing the patient’s oral health as the priority in the dentist-patient relationship.
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CONCLUSION
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Dentists should be aware that the likelihood that a state licensing board will institute disciplinary action against them for engaging in sexual misconduct with a patient is high. And, under the right set of circumstances, the patient’s consent may not be a defense. We hope that after reading this article and its predecessor, dentists will better understand the legal issues pertaining to dentist sexual misconduct and the potential risks involved before they pursue any type of relationship with a patient, even if it is consensual.
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