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Abstract: 

Under some state laws, a physician who engages in rape, sexual assault, or other sexually inappropriate behavior is viewed as a medical malpractice issue. The disturbing possibility that sexual assault in a medical setting could be viewed as merely an extension of normal healthcare practices that have “gone wrong” is a surprise to many—including plaintiffs and lawyers. In some states, the malpractice regime is a requisite stepping stone that may lead to a civil lawsuit. In these jurisdictions, a civil claim against a hospital, a physician, or another medical worker would be dismissed and diverted to a malpractice review board whose determination about the merit of a victim’s claims against a physician or other medical professional for sexual violations would be final with regard to the question of malpractice. In some of these jurisdictions, if the review board rejects the claims as meritless, the claimant(s) may subsequently pursue their claims in civil court. In others, courts have held that there is no civil remedy available beyond the medical malpractice proceedings. This article examines the current state of criminal and civil proceedings against health care providers who engage in illegal and unwanted sexual behavior in the course of patient care. Focusing on the special case of Utah, the article examines how hundreds of patients of a Utah gynecologist were abused during “premarital” gynecological examinations typical among Mormon women. The article also surveys similar allegations from Wisconsin, Iowa, Florida, New York, and California, where different state malpractice laws can lead to different outcomes.

Keywords: American Medical Association Code of Ethics; Doe v. Broadbent et al.; Utah Medical Malpractice Law; Using Dependence on Medications to Manipulate Patients

Affiliations:  1: John Jay College of Criminal Justice.