Licensee Duty to Report Sexual Misconduct

This episode of MedBoard Matters, dives into the first part of a two-part series on N.C. Gen. Stat. §90-5.4 (aka, Duty to Report). This update to the NC Medical Practice Act took place in 2019 and requires medical professionals licensed by the North Carolina Medical Board to report:

1. Any sexual misconduct by a licensee of the Board

2. Any fraudulent prescribing, drug diversion or theft of controlled substances by a licensee of the Board.

Host, Jean Fisher Brinkley talks with the medical board's two legislative liaisons, Thom Mansfield and Evelyn Contre, and also Deputy General Counsel Brian Blankenship about the statute and what it means for the licensees of the North Carolina Medical Board.

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Email your questions to: podcast@ncmedboard.org.

Transcript

Intro music: 0:00 

Podcast introduction: 0:09

We don't really know exactly how often medical professionals cross sexual boundaries with patients. We do know that when it happens, it is always inappropriate. It is always against the ethics of the medical profession, and it is always a grave violation of the trust between clinician and patient. This is Jean Fisher Brinkley, Communications Director for the North Carolina Medical Board, and this is MedBoard Matters. On this episode, we are focusing on a relatively new North Carolina law that requires any medical professional licensed by the North Carolina Medical Board to report any other licensee they believe is engaged in or has engaged in sexual contact with patients. North Carolina enacted this law, which you'll hear me, and others refer to as duty to report in fall of 2019. The law also requires licensees to report prescribing misconduct, including diversion and theft of controlled substances. We'll cover that in a separate episode. The goal of this podcast is to raise both licensee and public awareness of the importance of notifying the Medical Board of sexual misconduct by physicians and PAs. I've said it before, and I'll say it again now, if the medical board doesn't know, the medical board can't do anything. Reporting has to happen in order for the North Carolina Medical Board to do its job of protecting patients. So how did North Carolina decide to change the law to make reporting by medical board licensees mandatory? To tell that story, I've enlisted the help of a few of my colleagues at the Board. In the first part, the medical board's two legislative liaisons, Thom Mansfield and Evelyn Contre, talk us through the lawmaking process. And in the second part, Deputy General Counsel Brian Blankenship talks about the Medical Board's experiences with duty to report thus far. And he offers some guidance to licensees who may find themselves in a position to report.

Interview with Thom Mansfield and Evelyn Contre: 2:06
JFB: Thom, Evelyn, thank you so much for joining me. I really appreciate your time.

EC: Thank you for having us.

JFB: Um, I'd love for you to start at the beginning and tell me how North Carolina got a duty to report statute. Take me back to 2019 and explain how the General Assembly decided that such a statute was needed. Thom, would you like to take that one?

TM: Sure, Jean. Thanks. And thanks for having us on the podcast today. So, by the time we got to 2019 and House Bill 228 was introduced at the General Assembly, we were experiencing a confluence of events. And I think we really have to go back to 2016 to kind of understand the sequence of events that led us to the legislation in 2019. I think we all know that in 2016, the Atlanta Journal Constitution released a series of articles about professional sexual misconduct. Every medical board in the country was very focused on that topic. It was a matter that had been of concern to the North Carolina Medical Board for many years. We had prosecuted many cases related to professional sexual misconduct, and we had a sense of what the sort of challenges were and finding out about those cases and prosecuting those cases. And in that series of articles, the Atlanta Journal Constitution reported that North Carolina, like most other states, did not have a law requiring its licensees or anybody else to report to the North Carolina Medical Board any knowledge they might have of professional sexual misconduct. So, in 2016 and 2017, we were already thinking about how we could codify in the law some kind of reporting requirement. And some other things that were happening, get us up to 2019, would include the opioid crisis was going on and 2017, the North Carolina General Assembly passed The Stop Act related to opioid prescribing. And so that's another big topic. In that decade, the medical board was experiencing cases both on the professional sexual misconduct side and opioid prescribing side. We were in this terrible crisis of overdose deaths, and so we started working towards getting legislation. That's a multi-year process, usually that involves collaborating with our stakeholders, building a coalition. So, we had done that by 2019. So, we had a bill that was pretty compelling that we could introduce that would do mandatory reporting, both for professional sexual misconduct, where a licensee reasonably believes that such misconduct has occurred and also required reporting related to controlled substances. And we were course particularly focused on opioids. We also had some other legislative needs. So, when you go open the Medical Practice act, that's a big deal at the legislature. And so, you want a bill that you can get across the finish line and the legislature through that long Byzantine process. And you also want your stakeholder organizations in your coalition ready to put their shoulder to the wheel and push to get that across, too. And of course, everybody in organized medicine wanted to solve for the problem of professional sexual misconduct. So, we were all in agreement that it was important to do something, and then it just became a conversation about how to address it and how to mandate reporting.

JFB: Mm hmm. Evelyn, did you have anything to add?

EC: Yeah. So, I think something that's really important for the context here is it was late 2016, I think, when Larry Nasser's case became public that he had sexually violated so many athletes with the US gymnastics team. And whenever you're in a position where your organization enforces the law, you have to do a self-check. What are we doing? I mean, this was horrifying. As the news came out, you know, it wasn't just a few women. It wasn't just dozens of women. It was hundreds of women had been violated. And, you know, we were seeing in real time what was happening in the legal system. The medical board had been dealing with sexual misconduct for many years. As Thom mentioned. And then you have the confluence of the Atlanta Journal Constitution article coming out publicly criticizing boards across the nation for not having more teeth in their laws to effectively deal with these specific types of cases. And so, all of this was kind of swirling around in the background as we're working to put our own bill together to address this particular issue. And so, I think it's important to remember where we were as we were drafting this type of legislation and what the environment was like. But I'll say that there was one particular moment in time where I think all of us were kind of caught off guard, and that was when we went to the 2018 FSMB annual meeting and heard a presentation by the Michigan Osteopathic Board. And that was when I personally found out that there had never been a single report of Nassar. 

JFB: Right. And just to…I'm sorry to interject, I was just going to say, for the benefit of our listeners who may not be familiar, Dr. Larry Nassar is a DO, and he was licensed in Michigan. So that was his home medical board at the time that most of these assaults of patients, young athletes, occurred. So please go ahead now.

EC: So, it was a period of time when all these things that were swirling around kind of came back. We don't want that to happen to North Carolina and we need to do something. We were already working on how we would address this, but when we found out that there were no reports to that board, that was really when the rubber met the road. And we really started thinking about how we would implement that in our state.

JFB: Gotcha. Now, I think I know the answer from your comments and Thom's comments, but did the medical board ask the General Assembly for the duty to report sexual misconduct to be added to the bill, or was that something that that came from elsewhere, from legislative staff or wherever?

TM: That was generated internally from the North Carolina Medical Board. We had several staff who were working on this issue, talking about this issue. Our Deputy General Counsel, Brian Blankenship, was working hard on this issue at that point, Evelyn and I and others working on the legislation were focused on this question. And so, it was one of the cornerstones of the bill. That was one of the reasons we wanted to do the bill. And the other thing I was going to add to Evelyn's comments from a minute ago was I think we all know now that even in 2018, 2019, what we came to know by then was not only had the Michigan DO Board not ever gotten a report of Larry Nassar's conduct, we knew that lots of people knew about it, including other people in his institutions. So, it wasn't like no one knew. Lots of people knew. No, and no one told the DO Board in Michigan.

EC: And you know, this particular provision did not really meet a lot of resistance. When we were presenting this to different associations, different groups that are you know, our stakeholders, when you talk about the bill and you explain to them there were hundreds of patients and not a single one reported Dr. Nassar to the Board, not a single family member, a colleague, an administrator, a friend. No one thought to report him to the licensing agency, which was the only agency that had control over his ability to practice medicine. 

JFB: Yeah.

EC: That was, it's a really compelling argument when you explain that we're doing this because we don't want that to happen here. And there have been dozens of other cases across the nation in different states where something similar happened. It’s just that the Larry Nassar case was so egregious. It was devastating. We wanted to put together, um language in our bill that would not just…it would go even beyond just the duty to report. You know, there were other provisions that would help to prevent this from happening again. And Thom can speak to these a little bit. So not only did we require licensees to report to us circumstances of sexual misconduct with a patient, it gave the board the ability to permanently revoke a license for this criminal conviction, and it criminalized sexual contact under the pretext of medical treatment. And that is something that was new. These three pieces work together, and it really gave the Board a new tool to more effectively deal with these types of circumstances.

JFB: So, it sounds like, again, from the context of your comments, that when you brought this idea up down at Jones Street that the general reception you received was pretty positive. Was this an easy sell or were there difficulties that you had to work through?

TM: Well, we…the royal we, all started from the position of this is an important problem that has to be solved. All the stakeholders of the medical board, the societies and associations that represent physicians and various groups and everybody else in organized medicine was nodding their head around the table. Yes, we've got to do something. And everybody became comfortable conceptually with a mandate to report.

JFB: I mean, that's a huge victory right there. Just to interject, getting everybody on the same page. 

TM: I mean, we knew all the things about the Larry Nassar case that we've just described by this point. We knew that already then, and it's continued to be true, which is these stories have kind of flown under the radar. It's been amazing how relatively isolated the coverage has been when, yet another physician engages in this misconduct. There was another physician in Michigan who was arrested just this past November for acts that went back 20 years or so, and they just haven't gotten that much coverage, which, and that was had already happened back in 2019 when we were writing this bill. So, we know it's important to get the information to the medical board and all the jurisdictions. And of course, we were working on North Carolina. So, everybody wanted to get the information to the medical board. The big question was going to be, what is the triggering event? What is the thing that the Board's licensee has to experience that's going to trigger this requirement to report? Because that's important. Because, you know, the other component of the law has to be if the licensee doesn't report, that is unprofessional conduct. That can be a basis for discipline by the medical board against the non-reporting licensee. So, we had to get that right. And we went through a number of iterations of the first section, the first subsection of the section of the law with the duty to report. So, folks know where the first draft was, that not just every licensee has a duty to report to the medical board, we started off with every person. I mean, we were saying basically every person subject to North Carolina law, so you've got 11 million people roughly, who would be responsible for reporting. That was unworkable in terms of the coalition and the support working with legislators. So, we limited it to just the folks at the medical board has jurisdiction over, their licenses. But what was that triggering event going to be? It was going to be that the licensee reasonably believes that this incident has occurred. And, you know, as a lawyer, when we talk about reasonably believes, we know we're talking about a well understood legal standard regarding the reasonable, prudent person. But that's a common concept used for hundreds of years and jurisprudence in the United States and reasonably believes would just be the test of what would be good judgment or common sense of a person be in terms of handling a practical question before them in a reasonable way. So that's why we ended up with this reasonably believes standard. So, we had to all agree on that. That's took a fair amount drafting and negotiation before the folks representing physicians and voluntary organizations in the state and legislators could be comfortable with it because there was not going to be any perfect mathematical black and white kind of standard that you could put into the legislation. So, we got the language we got now, people got comfortable with that. And the other critical thing to making that language okay was the fact that any licensee reporting and in fact any person in the world reporting to the medical board in good faith and without fraud or malice, that person is immune from civil liability and reporting in good faith believe reasonably believing the thing happened, but being wrong would not subject a licensee to discipline by the medical board. 

JFB: Gotcha.

TM: So, it was important to get that part in there. I will just add one more thing. The other part that makes reasonably believes okay is you can imagine that there might be a person who's a licensee of the Board who might for personal and emotional reasons, make a report to the medical board in bad faith where they don't reasonably believe the thing happened, yet they report it to the Board and accused another licensee of committing professional sexual misconduct. And we also added in the provision that says if someone makes a report in bad faith or fraudulently or maliciously reports, that act is unprofessional conduct. 

JFB: Gotcha, ok.

TM: So, we're protecting innocent physicians from false, malicious, fraudulent accusations, and we're protecting the doctors, making the reports in good faith from civil liability or the potential for professional misconduct discipline by the medical board.

JFB: Right. Thank you for that. So, the law says that if someone comes into possession of information that another licensee of the Board is having sexual contact with a patient and they believe it's true or they believe it might be true, and they decide to make a report to the Board because they are looking to protect patients, that's okay? You're not going to get in trouble, even if it turns out that there is no inappropriate contact going on between patient and physicians?

TM: Yes, Jean. That's correct.

JFB: Okay.

TM: That licensee has used their judgment to weigh the credibility of the information they've gotten and concluded that they reasonably believe it. And if that's the case and they report it, they are going to be immune from civil liability and they won't get prosecuted by the medical board for being wrong.

JFB: But if it is true, then that's incredibly important because it gives the medical board the opportunity to investigate and stop this from continuing and to hold the licensee accountable. 

TM: Yes.

JFB: Gotcha. Evelyn, I want to just ask your thought in being involved in the discussion of this particular bill and ask, you know, just sort of what your impression was. I mean, relative to again, going back to that question of, you know, was this an easy process or an easy sell or a tough sell? What were your observations about how this bill moved through the legislature?

EC: You know, it's important to remember this was a part of a much larger bill. And so there were a lot of different discussions covering a lot of different topics. But, you know, my memory of that process was I thought we were going to have some really tough conversations. This is a very difficult, emotional topic. It was a charged environment that we were in at the time, and I honestly thought that we were going to be making a big ask. And much to my surprise, the conversation was still a challenging conversation, but it was because of the content and not because what we were asking was unreasonable. That it wasn't meeting the moment, but we did not really meet a lot of resistance. I think where people really dug in was on the implementation and the logistics, and that's a much easier conversation to have when you're trying to work out, well, what does this mean for my client? What does this mean for our members? So, I would say that it was timely. People were receptive to it, and they understood that it was needed because we did not have this authority in our state and no one wanted to have that type of situation occur in North Carolina.

JFB: Sure. So, this may be an obvious question and we may already have adequately touched on this, but how would you characterize the legislative intent behind specifically the duty to report sexual misconduct? What exactly is the desired outcome of the law?

TM: So, I think there are two things happening. One is the General Assembly created a new criminal statute. It created, as Evelyn described already, a new crime. Engaging in a sexual act and sexual contact under the guise of providing medical treatment. So, the bill went through a number of committees, including the judiciary committees of each chamber. So, you're having a conversation with legislators who are trying to understand what the effect of this is going to be and what the benefit of this is going to be to the people in North Carolina when they create a new crime. So, they're looking at it in two arenas, the criminal law arena, and they're looking at it in the administrative law, professional regulatory arena. And they all read the Atlanta Journal Constitution articles. They knew that this was an issue. They were horrified by the Larry Nassar case, like everybody else. So, they were eager to find a way to do it. But, you know, their job is to make sure that the way the statutes written is enforceable and sensible and workable. It's got to be from a practical standpoint, it has got to have the desired effect. And their desired effect or their intent was to solve that problem we were describing earlier, which is these things keep happening. Maybe there's some news coverage. It tends to be kind of geographically isolated. It happens over and over. Larry, the Larry Nassar case is the one that kind of opened everybody's eyes wide kind of all at once. But they wanted to solve that problem and they understood what we said before, which is the best way to put a stop to this to the maximum extent possible, is for these reports to get to the medical board in North Carolina in the same way that they should and other states. So, their intent was to create a workable process by which the licenses of the North Carolina Medical Board, physicians and physician assistants, who get some information they judge as credible, report that to the Board so, the Board can act. You know, the Board had a good track record of doing good investigations and taking appropriate actions and all kinds of cases, including professional sexual misconduct and those years. So, they…they seem to feel confident that if we could just get the information more often that the North Carolina Medical Board would actually do the right thing.

JFB: We often say here at the medical board, not just regarding sexual misconduct, but, you know, the medical board can't do anything about it if it doesn't know. So, by the same token, you know, if the Board doesn't know about alleged sexual misconduct, it can't investigate, intervene, and stop it from happening. So, that's really all the prepared questions I had. I wondered, you know, maybe if you could think about the licensee who's potentially listening to this podcast and is wondering what they need to do with this information. What would you say, you know, to that licensee who is listening to this, taking this on board and absorbing that they have an obligation if they become aware that another licensee is engaged in sexual misconduct with patients that they have the obligation to report?

TM: Well, my answer to that is what you would expect of a lawyer, which is I would say to that licensee who's listening now, I can understand how if you've received some information, that makes you feel very uncomfortable because the vast majority of physicians have dedicated their lives to acting ethically, competently, putting patients first and doing the right thing. They work very, very hard for the folks in North Carolina, and they are very dedicated to following the rule of law and doing the right thing. And they even then, when you get that information about a colleague, probably somebody you have some knowledge of, you may work with, you've been around them and now you're getting credible information that this person's done a horrible thing. And we and we know these horrible acts have occurred. You can go to the medical board’s website and find public orders describing incredibly disturbing sexual misconduct by other licensees. So, you know, it happens. But nevertheless, this licensee who's listening, you're going to feel uncomfortable and you're not going to want to do anything. It's going to kind of make you freeze. But, you know, you've got to do something. Why I say it's an answer you would expect from a lawyer like me, my advice would be, if you are struggling with whether to report it, go to your own attorney. Get legal advice from an attorney who’s experienced in matters before the medical board. Perhaps call your medical malpractice carrier. You know, a lot of doctors are familiar with how the malpractice carriers will pay experienced lawyers who practice frequently before the medical board to assist doctors in responding to complaints and that sort of thing. I believe if you called your insurance carrier and said, ‘I've got a question regarding mandatory reporting to the medical board. I want to avoid getting in trouble and I want to do the right thing. And I want to protect patients. But I need to talk to a lawyer who represents me in an attorney client privileged conversation so I can describe that lawyer, what information I've received and get their advice about what I should do’. I think you're going to be able to get some help in that situation. So, that would be the first thing I would suggest to doctors to do. And also, we've said it already, but remember, as long as you are acting like a reasonably prudent person, using your common sense and your good judgment and you reasonably believe this thing happened or is likely to have happened, you are really protected if you just go ahead and report. You're really protected because you are immune from a civil lawsuit by a doctor you reported against, even if it turns out they didn't do it and you're protected from administrative action by the medical board, if you in fact reasonably believed it and reported it to us. The failure to report is more likely to cause your problem than reporting, even if it turns out you're wrong.

JFB: Evelyn, any final thought?

EC: Yes, and I'll give you the non-lawyer answer, and that is put yourself in the shoes of the patient. Who's looking out for the patient? The patient may not be aware of what their options are, and the people who are listening to this podcast are engaged in some aspect of health care most likely. You know, our focus is on patient protection, but so is yours. If anybody is kind of sitting on the fence wondering what to do, put yourself in the shoes of the patient or the patient's mother or father or friend or loved one, and maybe that will also make it a little bit easier for you to make that report.

TM: Well, Evelyn, I really appreciate your making that point. One, it was more succinct, and two, makes it much more real. And so, my short quick addition to that would be, a physician, physician assistant who's listening to this, you may be the one by reporting who prevents the next Larry Nassar. You can be the difference.

JFB: Well, thanks to you both for your time and expertise and for your work on this law. I appreciate you joining me.

TM & EC: Thank you.

Interview with Brian Blankenship: 23:32
JFB: Brian. Thank you so much for joining me today. I really appreciate it.

BB: It’s nice to be here.

JFB: So, Brian, as you know, duty to report was enacted in fall of 2019. And in preparing to have this conversation with you, I did take a look at our enforcement data, and it looks like the reports of sexual misconduct have actually increased since then. In fact, almost doubled since 2019. I wanted to ask you; do you think that any of this increased volume is related to duty to report?

BB: I think it is. I didn't pull the numbers to see how many of the cases over the last year were reported by health care practitioners. And even then, I'm not sure how much of those reports were specifically generated by the duty to report law versus the doctor feeling some ethical obligation to report. I think it's important to note that before the passage of the law, we did receive reports from other health care practitioners when they were concerned that a doctor may be behaving inappropriately with a patient or sexually abusing or sexually assaulting a patient. So, we did receive prior to the duty report some cases from health care practitioners. I…I think it's also just a general raising of the awareness of the issue and also the medical board's role. As everyone probably recalls, this really kind of started with Larry Nassar. That was a big wake up call for a lot of medical boards and state legislatures to the severity of this problem. And I think since Dr. Nasser, there's been a couple of factors. I think there's been more press reporting. There’ve been press reporting throughout the country when doctors are arrested for these types of incidents. That's something that we really didn't see 15, 20 years ago. And I think the press reports have a couple of consequences. One, it raises public awareness so patients know that this is, in fact, a problem, that they're not alone and that there's a medical board to report it to, because very often these newspaper articles will discuss actions taken by the medical board. I think it's a raised awareness within the profession that this, in fact, does occur, that it's very serious and that it needs to be reported to the medical board so that the Board can intervene, if necessary, to protect patients. And then finally, there's the duty to report so that I think there are some physicians that if they were on the fence, whether to report the allegations, the duty to report law enacted 2019 might push them over the edge. And they realize now that not only do they have an ethical obligation, they now have a legal obligation to report.

JFB: Right. I think that makes logical sense, that it's probably a combination of all of those things. I will say that, you know, one of the things that we've sort of speculated about internally at NCMB, is that duty to report may not have gotten the attention that it deserves just because of the timing. As you mentioned, or as we've discussed, that it was enacted in fall of 2019. And then in 2020, we had COVID-19, we had the pandemic hit, and it was all anyone in health care could think about. So, there's been some talk internally about, you know, did people miss this? And frankly, that's why we're doing this podcast is because we think that there is a benefit to raising awareness about duty to report. Why is it so important that we do that? Why do we need to raise awareness of, in particular, the licensee's duty to report sexual misconduct?

BB: Well, one reason principally is we don't want well-meaning physicians to get in trouble with the Board for not reporting allegations of sexual misconduct that have been brought to their attention. I think in hindsight, it was unfortunate for any number of reasons that within months of this bill becoming law, we all had to deal with COVID-19 and for very obvious reasons, really starting in March of 2020, the next two years of most physicians lives dealt with the various difficulties brought on by COVID-19. So, this law did get kind of lost and all that was going on with COVID. And, you know, frankly, I mean, I'm a lawyer for the Board, and I don't expect doctors necessarily to be up with every change in the law made to the Medical Practice Act. And we've seen that with other laws that doctors just are unaware, that there's been changes.

JFB: The Stop Act. Like the Stop Act. A great example. 

BB: Yeah, The Stop Act is a great example. You know doctors I know you know they're very busy. They have a lot to do. And a lot of reading just to keep up with changes of medicine. So, it's tough for them to stay up to speed on changes in the law. So, it's important that we have this podcast for two reasons. One, continue to raise awareness of the problem of sexual abuse by physicians of patients. That is not an issue that has gone away or is going away. Just because you're not read about Larry Nassar doesn't mean this isn't still a problem nationwide and even around the world. And then, like I said, there are potential consequences for a physician receiving allegations of sexual abuse and not reporting it. So, as I said at the beginning of this question, we don't want to see well-meaning, good physicians potentially get in trouble for failing to report allegations of sexual abuse by a doctor.

JFB: Right. So, we're trying to do what we can to familiarize licensees specifically with this obligation and make it more comfortable. 

BB: Absolutely.

JFB: So, if they find themselves in a situation where they have to report something that they have the tools to do it. 

BB: Yea. 

JFB: Now, I wanted to mention, we actually have at NCMB, we've actually seen some evidence that licensees may not know about the reporting requirement, certainly not to the extent that we want them to know. Could you give a specific example of how NCMB has learned that a licensee is unaware of the duty to report law?

BB: Sure, without getting too specific, we have seen at least one case where physicians became aware through a patient that a doctor had touched them and that the touching was not medically necessary. It was not for any legitimate medical purpose. Unfortunately, there were several patients and several physicians learned about those allegations. And the doctors during the investigation, I believe, truthfully told us that they were not aware of the duty to report. What they did, and this really goes to one of the reasons why we passed this duty to report law, what those physicians did is what we had seen prior to 2019, where a physician would learn about allegations of a colleague or another physician and a physician receiving that report, most often from a patient, they would report it within their healthcare system chain of command. And it would kind of keep getting reported up the chain of command. And there was just an assumption at every step, well, I've done what I needed to do. I reported it to the next higher person, and somebody will take care of it. And that's what the physicians did in the case that we're speaking of. They reported it up their chain of command. Eventually, you know, we found out about it and, you know, opened an investigation. And I won't get into too many details about you know, what happened after that, but there were multiple physicians that we educated about the requirement. The tragic thing and the tragic thing in all these cases, or at least most of these cases, there were multiple victims. And whenever I get a case like that, I always look at the timeline and I think, you know, golly, if we had just learned earlier, we might have been able to intervene and protect not all of the patients, but we could have protected some of them from being assaulted. In my experience, if a doctor commits sexual misconduct with one patient, they're going to commit it with multiple patients. They're not going to stop with one. So early intervention to protect the patients is critical.

JFB: Right. So, Brain, I think you’ve raised a lot of good points that I think especially when an incident of any kind, you know, happens in a medical practice or a health system, they do have a chain of command and a protocol that they follow. And just going through that process, I could certainly understand how somebody would say, well, I've done my part. I've done what I need to do. Let's talk about maybe some other challenges with expecting medical professionals to report other medical professionals. I think it's pretty commonly understood that often individuals are just reluctant to report because they don't want to wrongly accuse someone. They want to be sure. And the duty to report statute doesn't actually require that a licensee be sure. Can you talk about the standard of proof that the law establishes? How sure do you have to be to make a report?

BB: Right. If I could, I want to just take this opportunity to back up a little bit from the law and talk a little bit about the ethical underpinnings of the law that I think will help, I hope, inform those listening about the duty to report. And I went back and pulled the AMA Principles on Medical Ethics. The AOA has something very similar, and I think if you kind of start with these bedrock principles of medical ethics and then work your way towards the law, hopefully that will provide some clarity. And the preamble to the AMA principle medical ethics is just a great statement and I'll read it because I couldn't say it any better. “The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of the profession, a physician must recognize responsibility to patients first and foremost.” So, I think when we're talking about the difficulty of reporting a colleague, all very serious allegations without physical evidence, understanding that can be very difficult. It's difficult for any profession to self-regulate and to report colleagues. But I think just, you know, let's all remember that the duty is to the patient first and foremost. I also found a great article that was in the Ethics Journal of the AMA and an article titled ‘The Medical Profession and Self-regulation’, and it talks about this implicit agreement between medicine and society that really led to doctors being able to self-regulate. And again, I'll quote from the article, because they do such a great job and I'm paraphrasing a bit here, but ‘in return for a physician's commitment of professional competence, the demonstration of morality and integrity in their activities, society grants to both individual physicians and the profession considerable autonomy in practice and the privilege of self-regulation. Integral to effective self-regulation is the responsibility and obligation to ensure that these standards are met and to remediate or discipline unethical, immoral, or incompetent practices.’ 

JFB: Right 

BB: Now, I just sums it up to me as well as you can. In the absence of the law, there's this ethical responsibility. So, you know what we did, we took that, and we built upon it. And now the law requires, in addition to that ethical obligation that's preexisted the law. Now, what the law requires is that every licensee of this board report any incidents that they reasonably believe occurred. So, it’s reasonably believe, it's not beyond any reasonable doubt, it's reasonably believes. And I know your next question is going to be, ‘well…what is reasonably believes’ mean?

JFB: Exactly. Yeah, I kind of know, but it definitely bears explaining because I could see how that term would stop someone and they would say, well, what the heck does that mean? So, what does it mean?

BB: Right? And for this question and others about the duty to report, I'd refer everybody to our website. If you just go to our web site and type in duty to report, it'll bring you to a page that has FAQs and other information, including a link on actually reporting allegations of sexual misconduct. And those FAQs talk about reasonably believe, and what does that mean. I'll start with what it doesn't mean. It doesn't mean absolute certainty. It doesn't mean beyond a reasonable doubt. It doesn't mean that law enforcement would charge somebody or prosecute them. What it means and what we say in our FAQs is that a belief is reasonable, if an ordinary, prudent licensee, based on the facts and circumstances presented, would arrive at the belief that the incident may have occurred.

JFB: Okay. Can we work through that a little bit? Like a scenario maybe. Let's say nurses working in a medical practice approach one of the physicians and say, ‘We're concerned about Dr. So-and-so. He's been scheduling patients after hours and dismissing all staff. But we've heard some strange sounds that it suggests inappropriate behavior is going on behind closed doors’. Would that be an instance where somebody would be expected to report?

BB: It could be. And I think one of the questions I would ask, putting myself in the place of the physician, is trying to determine what the person coming to you, what they know versus what they've heard. So, in your example, if a nurse comes to me with that allegation, I'm going to want clarity. Is this something that the nurse has been told by other people or is this something that the nurse has experienced herself? 

JFB: Right. 

BB: And then and then I'm going to learn a little bit more about the facts. You know, scheduling after hours. I'd want to learn more about that. And I might even go the extra step of trying to confirm that with independent information. And then in terms of the sounds, you know, that's something that I'm going to want to dig into a little bit. You raised that scenario and that's somewhat loosely based on a real case we had where a nurse did hear noises coming out of an examination room. And, you know, the doctor made a point of scheduling examinations with female patients, shutting the door. There was no chaperon. And unfortunately, what we learned because the nurse reported it, is that the doctor was exchanging drugs for sex that he was prescribing to these female patients. Yeah. So, I think it's entirely reasonable when a doctor receives a report like that from a nurse, to use your example, to ask them questions to nail down, is this what you've heard or is this what you know? And asked some specific questions? There may be a way to independently verify some of the information. What I would really caution against is one of our licensees, let's say, in this scenario of going to the physician and confronting the physician and the physician denying it. And then our licensees say, well, you know what, it's a he said, she said. The doctor denies it; therefore I'm not going to report it. I would really caution against that.

JFB: Does it change the calculus at all if it's a patient who reports it? I'm thinking of the case that you mentioned with the chain of command issue with the multiple physicians who became aware, and nobody had the thought to report to the medical board. If a patient discloses to a medical professional that another medical professional touched them inappropriately, sexually assaulted them, and they seem credible. They're have difficulty talking about it. They're embarrassed. They have really nothing to gain, you know, from creating this, you know, is it any different if you're getting it direct from the source, so to speak?

BB: Uh, I mean, I think it is just based on what you just said, it's from the source. So, in the nurse example, you get back to this, you know, what do you know versus what did you hear? If you're hearing it from a patient, you're hearing it from the person who experienced the event and that is the I don't want to say the best evidence, but it's certainly the best statement of what occurred. With nurses, it may be that the nurse witnessed an unnecessary breast examination. I'll be honest, you know, that's pretty rare. It's pretty rare, again, I think for obvious reasons, for a doctor to sexually assault a patient in front of a witness. Now, there are plenty of cases where there's nurses in the room, but the nurse isn’t paying attention. The nurse is, you know, typing in notes. The nurse is positioned so that they can't see what's occurring. So just because somebody is in a room doesn't mean they're a witness. But yeah, I mean, the patient, it is just different because they're the ones that have experienced the event. Now, if a patient makes a report, does that mean the doctor automatically has to report? It's very fact dependent. What we see in a lot of cases, you know, for doctors who haven’t experienced, this I'll just give an example. The patient very often won't come in and say a doctor sexually assaulted me or a doctor performed an unnecessary medical examination. Very much it’s the patient trying to figure out what happened. So, they'll go to a subsequent treating physician and they'll describe the examination and they'll say, you know, I'm just wondering why I went in for an earache and the doctor suggested we do a breast examination. Can you help me understand why if I went in with an earache, the doctor would do a breast examination? Or I went in complaining of stomach pain and the doctor did a breast examination or some other sensitive examination. Or, you know, I saw this doctor, and then I started receiving text messages and phone calls, and that seemed a little weird. So, you know, very often it's the patient trying to figure out what happened and whether it was inappropriate. Again, I think as someone receiving that information, you know, that could increase the credibility of the report because they're not saying the doctor raped me, although that could be it. They're explaining an examination that a subsequent treating physician would say there's absolutely no reason for the doctor to have done that sort of sensitive examination. And I would say in that case, absolutely, it needs to be reported.

JFB: Well, if nothing else, I think we're illustrating how challenging it can be to determine what to do with this sort of information if it comes to you.

BB: What I would offer on what not to do is don't receive a report, but then think to yourself, well, I know Doctor Blankenship. He would never do this, and therefore I'm not going to report it. Or golly, I was just at Dr. Blankenship's house. We’re friends. I can't imagine him doing this. I don't want to report it. Don't do that. The overwhelming majority of physicians who are and I would say criminally charged, criminally convicted of serious sexual assault, almost across the board, had excellent professional reputations. I have yet to come across a case in North Carolina or nationally where when the doctor was either disciplined by the medical board or convicted, their colleagues came out and said, yes, makes total sense…makes total sense. I always wondered if he was sexually assaulting his patients or performing unnecessary medical examinations. I've never heard that. So just don't fall into that line of thinking that, I know him. He's a great doctor. He would never do this. And I say he because the overwhelming majority of doctors committing sexual misconduct are male. We have seen females, but the overwhelming majority are males, and that isn't restricted to one gender being assaulted. We've seen male physicians sexually assault female patients and we've seen male physicians sexually assault male patients.

JFB: Right. Well, I think we've probably given people a lot to think about, but I think the bottom line is take this seriously. 

BB: Yeah. 

JFB: So, let's assume that somebody has decided that they better report something or they want to report something. Let's talk about the mechanics of doing that. How would a licensee submit a report of sexual misconduct to the Board?

BB: If you just go to our website, type in duty to report, it'll take you to a page and on that page there's a link and it'll take you to a form that we specifically designed for a licensee of this Board to file a complaint. We've also had cases where the doctor has consulted with an attorney and the attorney has filed a report and a letter. And we've also had cases where the institution, on behalf of the doctor, brought it to the Board's attention and filed the complaint. So, I think it's important to note on that last point, just because there's a duty to report, we expect every licensee to now report to the Board. That doesn't mean that you're prohibited from reporting it to your chain of command. And in fact, that may be the most responsible thing to do in the near term to take immediate action. You know, you can still and perhaps should report it within your health care system chain of command, that does not absolve you of the legal obligation to report to the Board. But those can work on parallel tracks. And like I said, we have had cases where the health care system has made the report on behalf of the doctor who brought to our attention.

JFB: And is that acceptable procedure? I just want to be clear here that if the licensee does not personally make the report, but the hospital system makes the report on their behalf and says, doctor so-and-so brought this to our attention and we are reporting it, does that satisfy the requirement of the law?

BB: That does as long as we know who the doctor is that brought it to the health care systems attention. It could be. I'm not saying it, it will be, but it could be problematic if we receive a report from the health care system that says a doctor brought it to our attention, we're now bringing it to yours. You know, we're necessarily going to have to go back to the health care system and say who was the doctor. 

JFB: Right. 

BB: And again, I don't want a well-meaning doctor to come to the attention of the Board for the wrong reasons, because there's some question about whether they fulfilled their obligation. So, it does meet the requirements, if we know who the doctor is that reported it.

JFB: And I assume the same is true if a licensee reaches out to an attorney to get advice about whether they need to report and then the attorney submits the report, as long as the licensee is named, then it sounds like that would qualify.

BB: Exactly.

JFB: Okay, great. We've been talking about duty to report and the obligation that it creates to report. There are certain things where if you failed to report, the licensee would be in trouble. You know, they would have violated the law, but there's no penalty for overreporting it. Can you talk about that? I want to make sure we don't get people too laser focused on is this something that I'm legally obligated to report and may be more oriented towards am I ethically responsible to report this? You sort of touched on this earlier. 

BB: Yeah. You know, I like to think about this in a couple of ways with this duty to report. And when I say duty to report now, I'm not talking about the law, just the ethical underpinnings. You know, and a couple of things to think about for the protection of the patients. Put the patient first and foremost, which I think really kind of lowers the bar. If you have concern that a patient may have been sexually abused or there may have been inappropriate sexual contact, file a report and let us do our job and let us investigate. The fact that a complaint is filed does not mean that we will automatically draw a conclusion that something occurred. We've got investigators and attorneys and a Board that have received specific training on this issue. We may have information about the doctor's history that the health care system and the reporting doctor, don't know, but file the report. Let us do our job. The other thing to think about is, you know, for the benefit of your colleague, it may be that the doctor has done something or is doing something, and it's just for their own sexual gratification. It may also be that the doctor is suffering from some impairment, drugs or alcohol or some other illness. So by reporting concerning behavior, and there's a…you know, there's a broad spectrum of concerning behavior, we've talked about rape and sexual assault, but there's a real spectrum of inappropriate behavior from comments and jokes and seeking dates to sexual contact, sexual assault. But it may be that the doctor is suffering from an impairment or…or illness. And we have seen those cases. And then finally, you know, think about the integrity and reputation of the medical profession. So, keeping those three things in mind, like you mentioned, wouldn't set the bar too high. Certainly, if it meets the elements of sexual misconduct as defined by the law, you're required by law to report. But there is conduct well below what you're legally required to report, that ethically you should report for the benefit of the patient, the reputation of the medical profession, and potentially your colleague.

JFB: Absolutely. And I think it's worth noting that there have been plenty of cases of sexual misconduct that fall short of the legal definition of sexual assault, but yet the Board has taken action against the licensee because the behavior is inappropriate.

BB: Absolutely. I mean, if a doctor is asking ah patients to unnecessarily disrobe, that would not meet the definition of sexual misconduct that triggers the duty to report and state law. But that's absolutely a case that…that should be reported to us. You know, if a doctor is conducting telemedicine visits for sore throat or an earache or concerns about COVID and every visit, the doctor is asking the female patients to disrobe or take off their shirt, that absolutely should be reported to us. And I do want to mention one other thing I briefly mentioned, but I think it's important our licensees to consider, and the scenario I just gave made me think, you know, one of the reasons it's important to report to us and not just the health care system is we may have information that the health care system does not have that other licensees do not have. We have had cases where when a complaint finally made its way to us and I say finally, because once we started investigating, we realized that while there had been complaints against the doctor at the health care institution where they work now, that there were prior complaints at other places of employment or perhaps there were complaints at hospitals out of state and we have seen that. So, what you as an individual licensee know, what the health care system knows, versus what we know may paint an entirely different picture, which is another reason to report to us because we may be able to see a pattern of complaints, a pattern of behavior that wouldn't be apparent to anyone else but the medical board.

JFB: Right. I will ask if there is anything I haven't asked you about the licensee's duty to report sexual misconduct or sexual misconduct reporting generally that you want our listeners and perhaps the licensees in particular to know.

BB: I would end with this. This has been somewhat of an academic discussion about the duty to report and the seriousness of the problem. And I just want to end by highlighting the scope of the problem, not just in North Carolina, but nationally. And yesterday I did a Google search to find out within the last 60 to 90 days nationally, what have we seen? And, you know, this is just a snapshot of what I found. So, in December, a gastroenterologist at the Cleveland Clinic was arrested and accused of sexually assaulting three patients during examinations. During that same period of time, a well-respected doctor in New Hampshire, was arrested for aggravated felonious sexual assault, attempt to commit aggravated felonious sexual assault and sexual assault of patients. In Arkansas, in December, a doctor was arrested for sexually assaulting a patient. And it's not just, it's not just arrests. Some listeners may have been tracking the case or heard about the case of Robert Hayden. He was a OB-GYN at Columbia University. Columbia has reached settlement agreements totaling more than $230 million and have settled lawsuits of more than 200 patients. He was recently convicted in federal court of sex trafficking involving nine patients. And last August, a neurologist in New York was found guilty of rape and other sex crimes. Somewhat similar to the case I discussed that we had in North Carolina, he was prescribing pain medication and then using really duress and coercion, demanding sex in return for pain medication. 

JFB: Yeah. 

BB: So, you know, I want to end all that and just give people somewhat of a glimpse just in the last few months what has been occurring nationally. And just because you don't hear about it on the nightly news like we did with Larry Nassar, it doesn't mean it's not occurring. In every single one of the cases I told you about, there were multiple patients involved. It was not just one patient.

JFB: Yeah, I mean, it certainly is sobering when you reel them off like that. You know, we say it's rare or it doesn't happen that frequently. I'm not sure that it's right to say that, though.

BB: Well, I think, you know, we have to consider it not just locally. And I think in my experience, when I've heard people describe it as not being that frequent or not being, you know, such a problem, they're thinking very locally. They're thinking either their health care institution or their city or their state. They're not seeing, you know, what we see at medical boards where, you know, these cases, very serious cases are occurring around the country. And, you know, to stress the point I made earlier, one of the things we do is and but one of the things we want to do, we want to accomplish with this duty to report is if it's occurring, we want to intervene as early as we can. We may not be able to…to stop that first incident, but we certainly want to protect any future patients.

JFB: Yes. Well, thank you very much for your time. I hope this is helpful to our licensees.

BB: Thanks so much.

Episode closing: 53:05
Well, you have made it to the end of another episode of MedBoard Matters. You should be up to speed now on the medical professional’s duty to report sexual misconduct. If you would like to learn even more, visit our show page at www.ncmedboard.org/podcast to check out FAQs, statutory definitions, and other information on duty to report. If you have comments, questions, concerns, or ideas for future podcast episodes, drop us a line at podcast@ncmedboard.org and be sure to listen in next month in March for part two of our duty to report series, when we will discuss the licensee's legal obligation to report prescribing misconduct. As always, thank you for listening. I hope you'll join me again.