Maryland Physicians and Sexual Harassment

Niccolo N. Donzella and Michael J. Baxter
 

Claims of sexual harassment, generally defined as unwelcome conduct of a sexual nature, in the workplace pose significant risks for all parties.  The accuser puts his or her credibility, reputation, and employment at stake. The accused, often an employer or supervisor, faces his or her own unique risks in the form of public embarrassment, significant financial burden, and potential loss of employment, even if the claim is doubtful. And if the accused happens to be a Maryland physician, the stakes are even higher. A Maryland doctor accused of sexual harassment or creating a hostile work environment can lose his or her hospital medical staff privileges, approved provider status with health insurers, and medical licensure.

 

SEXUAL HARASSMENT CLAIMS CONTINUE TO GROW

The growth of sexual harassment claims in the workplace that began a decade ago has leveled off but shows no signs of abating.  According to the most recent published statistics of the Equal Employment Opportunity Commission (“EEOC”), in 2005, sexual harassment claims filed with the EEOC and state and local agencies accounted for nearly 17% of all discrimination claims, down from nearly 20% in 2000, yet up from under 15% in 1992.  Moreover, the number of sexual harassment claims filed by men has increased from 9% in 1992 to 14% in 2005. Unfortunately, along with the increased incidence of meritorious claims have come a large number of baseless claims. The dismissal of claims for lack of reasonable cause jumped from 32.8% in 1992 to 49.5% in 2005. Whether with or without merit, allegations of inappropriate behavior in the workplace are unlikely to diminish for the foreseeable future.

The economic cost of dealing with sexual harassment claims has also skyrocketed.  According to the EEOC, “monetary benefits” paid to sex harassment claimants rose from $12.7 million in 1992 to $47.9 million in 2005.  That includes only the resolution of charges at the administrative level and not counsel fees, lost work productivity, and the cost of processing lawsuits filed outside the administrative process.  Although some courts have attempted to limit the explosive increase in sexual harassment claims by requiring more of complainants, the personal and economic burdens for those who face such claims remain high.

THE MULTI-FRONT PROCESS FOR MARYLAND PHYSICIANS

Unlike their lay counterparts, Maryland physicians accused of sexual harassment may be subjected to multiple “disciplinary” proceedings, including the employer’s internal investigation; a civil lawsuit (criminal charges, albeit rare, are also possible); a hospital administrative corrective action; the possibility of termination as an approved provider with health insurers, and a licensure proceeding prosecuted by the Maryland Board of Physicians.  Physicians facing this daunting process may also soon realize that the interests of their employer or hospital may differ sharply from their own. Depending on the nature of the proceeding, the physician may find him or herself  “on their own.”

    I. The Employer’s In-House Investigation

Most employers, including health care systems, hospitals and practice groups, now maintain in-house procedures aimed at enforcing anti-sexual harassment policies by investigating complaints and imposing appropriate disciplinary action on violators. The formality and complexity of enforcement procedures vary.  In general, the accused party is brought in at the investigative stage, where he or she is asked to provide information relative to the complaint.  The investigation may be conducted through personal interview, written submission, or both. Statements by the accused party inevitably become part of a record, available for use in later, more formal proceedings.  The end result may be disciplinary action, perhaps including termination of employment.

In Maryland when a physician employed by a hospital is terminated or has his or her employment restricted due to claims of sexual harassment the hospital is required to report that action to the Board of Physicians. Md. Code Ann., Health Occupations, § 14-413. That report may result in an action on the physician’s license by the Board, and ultimately suspension or revocation of the license. 

    II. The Civil Process

Complaining employees dissatisfied with the results of a company investigation may choose to file charges with the EEOC or a similar state or local agency and, following agency action, pursue a civil claim in state or federal court.

Agency Actions.

Agency actions have several phases.  The first is investigation, which focuses on the merits of the claim.  Unfounded claims can be dismissed at this level.  Meritorious ones are sent to mediation for voluntary resolution between the parties.  If that fails, the agency may issue a finding and a remedy or award of damages.  If the employer challenges the finding, the agency may sue in court to enforce it or, alternatively, allow the victim of the harassment to do so.

Agency actions are brought against employers, not individuals.  Nonetheless, an accused party may be compelled to provide information in the investigative phase in the form of written statements or sworn testimony. The record created in these proceedings may be used against the alleged offender in other forums. Moreover, mediation may involve remedies that affect the accused party, such as counseling, imposition of restrictions on employment, transfer, or even termination of employment.

Court Proceedings

Although sexual harassment suits must be brought against employers, rather than individuals, accused parties may find themselves named as defendants in separate sexual harassment suits based on tort claims arising from the harassment, such as battery, defamation, or intentional infliction of emotional distress.  In such cases, the records of company and agency investigations will come into play, including statements previously made by the accused party.  If the defendant happens to be a Maryland physician and is found guilty of such claims, he or she may then face a disciplinary action before the Board of Physicians under Md. Code Ann., Health Occupations, §14-404.

    III. The Medical Regulatory Process

Hospital Corrective Actions

Hospital medical staff by laws typically define the rights and obligations of the privileged physician. Almost all such by laws prohibit disruptive or abusive behavior by staff members. Proven sexual harassment will most certainly be regarded as unacceptable and will subject the offender to an investigation and potential disciplinary proceeding, commonly referred to as a corrective action. Corrective actions are complex and expensive and, if they result in the physician’s privileges being restricted in any way, they can create a myriad of other problems for the provider.

Limitation or reduction of a physician’s privileges may mandate a report to the National Practitioner Data Bank. It may also result in notification to the Maryland Board of Physicians, which in turn may conduct its own investigation. In addition it can trigger automatic termination of contracts essential to the practice of medicine, such as approved provider agreements with health insurers and nursing homes. The Maryland physician facing a hospital corrective action for sexual harassment has much more at stake than just his or her admitting privileges.

The Board of Physicians

The Maryland Practice Act includes a list of acts prohibited in the practice of medicine in this state. Md. Code Ann., Health Occupations, §14-5A-17. The Board of Physicians is authorized by statute to enforce that Act, including the prohibition against “immoral or unprofessional” conduct in the practice of medicine. That statutory phrase was often included at the end of a broad charging document, generally as a generic catch-all.  It took on considerable new import when the Maryland Court of Appeals decided Board of Physician Quality Assurance v. Banks, 354 Md. 59, 729 A.2d 376 (1999),  holding that a physician’s sexual harassment of hospital nurses fell within the ambit of “immoral or unprofessional” conduct as defined by the Practice Act. This ruling affirmed the Board of Physician’s authority to suspend, revoke, or otherwise restrict the license of a physician found guilty of such behavior.

In addition, a Maryland physician who is found to have provided false statements to hospital peer reviewers or Board investigators is subject to a separate charge of professional misconduct under the Practice Act. Cornfeld v. State Bd. of Physicians, 174 Md. App. 456, 921 A.2d 893 (2007). Thus the statements a doctor provides to his or employer or to the EEOC in the course of a sexual harassment investigation may give rise to a separate licensure prosecution.

Generally speaking, prosecutions by the Maryland Board of Physicians are not level playing fields.  The Board of Physicians has broad powers and discretion in prosecuting licensure actions, and its decisions are shown great deference by the Maryland Courts. Finucan v. Maryland Board of Physician Quality Assurance, 380 Md. 577, 846 A.2d 377 (2004); Pickert v. State Board of Physicians, 180 Md. App. 490, 951 A.2d 904 (2008). Due process for the physician in a Board prosecution is vastly restricted from that accorded litigants in civil suits. There is only limited discovery and cases proceed on a highly expedited basis. Non-privileged parts of the record generated in other forums, such as civil suit depositions, may be available to the prosecutor (although corrective action records are generally not discoverable or admissible, Md. Code Ann., Health Occupations, §1-401). Complainants who are dissatisfied with the results of their civil claims may view the Board of Physicians hearing process as a second chance for vindication, and become eager participants.  Ironically, a physician standing accused before the Board of Physicians may have more at stake than in any other forum, yet he or she is afforded the least due process protection.

CONCLUSION

Increased intolerance of improper workplace behavior that was, in another era, not uncommon, has generated a wave of sexual harassment claims. Maryland physicians, whether acting as employees or employers, need to be mindful of their obligation to ensure a professional work environment and their unique exposure if they do not.