CHICAGO — The nation’s largest medical society says it has zero tolerance for doctors who sexually abuse patients. But in the American Medical Association’s calculus, zero doesn’t always equal zero.
The association does not favor the automatic revocation of the medical license of every doctor who commits sexual abuse of a patient. It does not expel every offender from its membership rolls. It has never independently researched the prevalence of sexual abuse in clinical settings. Twenty-six years ago it declared sexual misconduct a breach of medical ethics, but since then it has remained all but mute on the issue.
It has, however, fought to keep confidential a federal database of physicians disciplined for sexual misconduct and other transgressions. When a proposal to open the database emerged in Congress, a former House staff member said, the AMA “crushed it like a bug.”
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The AMA’s approach to sexual misconduct underscores the findings of a national investigation by The Atlanta Journal-Constitution. No one in the medical profession condones sexual abuse by doctors. But silence, secrecy and inconsistent consequences have created a system that puts patients at risk by protecting doctors who abuse.
Doctors possess political power, professional confidence and a deep aversion to outside scrutiny. Self-regulation is a core principle. Even defining the acts that violate ethics codes strikes some doctors as an affront to their medical independence. At the AMA’s annual meeting last month in Chicago, doctors likened unequivocal rules to “a noose” for physicians who don’t comply.
“This is difficult, I’ll be honest with you,” Dr. Steven Stack, whose one-year term as the AMA’s president concluded last month, said in an interview.
“The AMA condemns sexual misconduct by physicians, period,” Stack said. “There is no exception for that.”
“We believe in redemption sometimes for people,” Stack said. “There are people who are, perhaps, serial offenders, and the medical boards need to remove them, and they need not to have the opportunity for further chances. Then there are other people for whom the circumstances make all the difference.”
Doctors, he said, “are humans like anybody else, and there are a lot of complexities in some of these cases.”
No more than one-fourth of the nation’s more than 900,000 physicians belong to the AMA. The association plays no role in licensing or disciplining doctors, a function of state medical authorities. Yet it serves as the voice of its profession, remains one of the most potent lobbying forces in Washington and in state capitals, and sets the tone for national conversations about doctors and their place in society.
Patient advocates say the AMA and other medical organizations have shown reluctance to confront the scope and impact of sexual misconduct, further exacerbating the problem.
“At some point the profession has to take responsibility to accept that there are things that need to be done in regard to protecting patients,” said Lisa McGiffert, manager of the Safe Patient Project for the advocacy group Consumers Union. “It’s always been puzzling to me that doctors don’t collectively say, ‘We don’t want these bad apples in our profession. They give us a bad name.’”
‘OPINIONS,’ NOT RULES
The AMA adopted its first ethics code the year it formed: 1847.
But for the past eight years, the AMA’s legislative body, the House of Delegates, debated how prescriptive to make an updated version of the code. Should it contain standards of behavior — or suggestions? Guidelines — or guidance?
One afternoon last month, 24 hours before a final vote on the updated code, a dozen doctors prolonged the argument. They told an AMA panel in Chicago that specific ethics rules would provide fodder for what one called “the evil-doers”: insurance companies, medical regulators and, especially, the profession’s arch enemy, malpractice lawyers.
“People outside of us and not friendly to us” could turn the code against the medical profession, one physician said. “We do not need a noose to hang us with.”
Another said the code should be “protective” of doctors.
A third asked, “Where do you draw the line?”
This lingering resistance reflects a sense among many doctors that medicine is under siege and that their profession warrants special privileges.
Two years ago the House of Delegates adopted a resolution decrying “the fundamental unfairness” in how courts handle medical malpractice cases: “A jury, rather than a forum of similarly educated peers, determines if a physician has violated the standards of care.” This year doctors reiterated they know how to act and don’t need oversight from outside their profession.
Thus, even after its update, the ethics code contains no rules, just “opinions.”
The AMA first addressed sexual misconduct in a 1989 opinion, issued 142 years after the initial ethics code. Even then, the association couched its admonitions in terms of romance and consensual sex.
The opinion describes “sexual or romantic interactions” with patients as misconduct. The same often is true with former patients, the opinion says. If a doctor wants to date a patient, it says, he or she should “at a minimum” stop treating the person first.
The opinion says nothing about abusive sexual behavior. It does not address a doctor’s touching a patient in intimate areas without a clinical reason, making lewd comments during an examination, or coercing patients into sex. It does not contemplate the idea of a doctor as rapist.
What’s in the sexual misconduct opinion, and what isn’t, reflects the AMA’s dual allegiances — to patients and to its members.
“We never want the victim to be victimized a second time,” said Stack, the association’s immediate past president. “On the other hand, we don’t want an innocent person to be victimized by someone who makes a false accusation.”
The AMA wants patients to be “appropriately and well informed about their physicians,” Stack said in the interview.
But for three decades the association has opposed public access to the National Practitioner Data Bank, the federal government’s clearinghouse for disciplinary actions against doctors. The data bank also lists payments made in medical malpractice lawsuits.
When the idea of the data bank surfaced in the mid-1980s, consumer groups saw an opportunity to create a single source of public information about abusive and incompetent doctors.
Then the AMA got involved.
“They said, ‘If you don’t make this available only to medical boards, hospitals and HMOs and the doctors who are in the data bank, then we’re going to kill the legislation,’” said Sidney Wolfe, the former director of health research for the advocacy group Public Citizen. “And Congress said, ‘OK.’”
Today the data bank contains nearly 200,000 reports on doctors. Researchers may obtain data that does not identify doctors, but must agree to restrictions on how they use the information. No full reports are open for public inspection.
In 2000, though, a Republican congressman from Virginia, Tom Bliley, introduced legislation calling for full public access to the data bank. Archived video from C-SPAN shows Bliley, white-haired and bow-tied and speaking in a soft Tidewater drawl, opening a hearing on his bill with a plea for transparency.
“I believe consumers have a right to this information,” Bliley said. “Consumers have as much right to know about their physicians’ professional background as they do about the ingredients in a snack food.”
Patients told members of Congress about horrific treatment by doctors who, unknown to them at the time, had extensive disciplinary and malpractice records. A New York woman testified that an obstetric and gynecological physician carved his initials in her abdomen with a scalpel while delivering her baby by Caesarean section.
Bliley chaired an important committee, House Energy and Commerce, but could persuade only six colleagues to join him in sponsoring the bill. Republicans and Democrats alike denounced the measure, often evoking the talking points of AMA lobbyists.
One congressman said the data bank’s “raw data” would give consumers a “dangerous, inaccurate view” of a doctor’s qualifications. Another described the data bank’s contents as “inaccurate, incomplete and out-of-context information.” U.S. Rep. Charlie Norwood, a Georgia Republican and a dentist, said the information “should only be available to those who understand its meaning and are charged with making decisions about professional conduct.”
The AMA, with members in every U.S. lawmaker’s district, many of them active in politics, mounted a robust campaign against the bill. How much the association spent is not clear. But it reported almost $8.8 million in lobbying expenses in Washington in 2000, four times more than the total spent by several groups representing trial lawyers. (In 2015, the AMA’s lobbying expenses exceeded $21 million.)
Bliley’s bill died without a vote. No one has introduced similar legislation since.
The AMA’s official position on the data bank is that it should be abolished. In the alternative, the association wants to keep the contents secret.
Still, Stack said the AMA favors transparency for medical consumers. He suggested they get information about their physicians from state medical boards — at best, a cumbersome process, especially when doctors have practiced in more than one state; at worst, an impossible pursuit if physicians have been disciplined through private board orders.
“We want patients to be accurately informed in an appropriate context so they can make appropriate decisions for their own health and well-being,” Stack said. “We just don’t think the National Practitioner Data Bank is the right vehicle for that.”
Nor does the AMA think its own disciplinary process is a good tool to judge doctors.
Since 2003, the AMA’s Council on Ethical and Judicial Affairs has investigated more than 800 complaints alleging breaches of medical ethics. The council took up many of the cases in response to disciplinary actions by state medical boards or criminal proceedings. It closed 143 cases without issuing additional sanctions. In the rest, it levied penalties ranging from a reprimand to expulsion from the association.
The AMA notifies the national data bank when it punishes members, as federal law requires. Otherwise, it keeps the names of those doctors and the nature of their offenses secret.
“I’ll be honest with you — the council deals with very difficult issues as they exercise their judicial function overseeing these things,” Stack said. “I think we want to fulfill our obligations to keep the members accountable to the code of medical ethics. … (But) you start running into issues of civil liability for slander and libel.”
Most other medical societies follow the AMA’s lead. Some, such as the American Urological Association, publish disciplinary reports on a password-restricted website. When asked, the American Congress of Obstetricians and Gynecologists provides summaries of individual disciplinary cases.
The American College of Surgeons, however, publishes information about every member it expels or suspends. Its website lists six surgeons punished since 2012 for sexual misconduct.
“Frankly, it’s a bit of a deterrent,” said Dr. Patricia Turner, the organization’s director of member services. “Surgeons know their names would be published if they broke the rules.”
Publicity is especially effective in sexual misconduct cases, she said.
“If anything, that’s arguably more important or just as important as proper patient care,” Turner said. “Improper relations with a patient is something that will get you in trouble. We take it very seriously.”
Consumer advocates say the AMA and other groups possess the clout to persuade medical boards and legislatures to impose tougher penalties against doctors for sexual misconduct.
“Oh, God, yes,” said McGiffert, of Consumers Union. “All they would have to say is yes.”
But if such an idea has arisen within the AMA in recent years, no one seems to recall it.
“We have hundreds of policy proposals at each meeting that come up,” Stack said. “People raise any number of issues.”
But, he said, “I don’t know when’s the last time this has come up.”