Dear Dr. Mossman,
A psychiatrist retires from practice and goes into some other line of work—perhaps managing a restaurant. He then has an “affair” with a former patient whom he had not treated for several years. Could the retired psychiatrist’s conduct be the basis of a successful lawsuit?—Submitted by “Dr. D”
Evidence tells us that the retired psychiatrist’s behavior likely could do emotional harm to his former patient. If the former patient suffers some injury, a successful suit could follow—if not on grounds of malpractice, then on other grounds. In this article we’ll see why by looking at:
- rates of doctor-patient sex
- potential harm from doctor-patient sex
- ethical bans on sex with former patients
- possible legal actions.
Sex with patients: Rates and risk
Doctors and patients often develop erotic thoughts about each other.1,2 But as Sigmund Freud noted almost a century ago, an actual love relationship between a doctor and a psychotherapy patient can cause a “complete defeat for the treatment” and destroy the patient’s chance for recovery.3
More than 5 decades later, surveys of medical professionals supplemented Freud’s observations with data about the frequency and impact of doctor-patient sex. In a 1973 survey, 11% of physicians said they had erotic contact with patients, and 5% reported intercourse.4 In a 1986 survey of psychiatrists, 3% of women and 7% of men acknowledged having sexual contact with patients.5 In a 1992 study of 10,000 nonpsychiatric physicians, 9% of respondents reported having sex with patients.6 Actual rates of doctor-patient sex probably are much higher than reported because physicians may be reluctant to admit to having erotic contact with patients, even in anonymous surveys.7 The typical therapist-patient sex scenario involves a male doctor and an adult female patient, but same-sex encounters and sexual contact with minors occur, too.8
Sex between a therapist and a patient is likely to cause emotional injury. For example, a 1991 study found that 90% of psychotherapy patients who had sexual involvement with a prior therapist had been harmed by the experience.9 Books, articles, and Web sites offer vivid individual accounts of harm patients have suffered ( Table ). Doctors who have sex with patients could face public opprobrium, civil lawsuits, actions against their medical licenses, and prosecution in states that make sex with psychiatric patients a criminal offense.10
Table
How sexual relationships can harm patients
| Type of harm | Explanation |
|---|---|
| Ambivalence | Psychological paralysis regarding whether to protect or take action against the abusive therapist |
| Cognitive dysfunction | Impaired memory and concentration, intrusive thoughts, flashbacks |
| Emotional lability | Unpredictable emotional responses, abrupt changes in mood, severe disruption of the patient’s typical way of feeling |
| Emptiness, isolation | Lost sense of self, feeling cut off from others |
| Guilt | Irrational self-blame for causing the sexual contact |
| Impaired trust | Fear of being taken advantage of, used, or abused in future therapy |
| Suicide | 14% of patients who had sex with a therapist attempt suicide; approximately 1% commit suicide |
| Role confusion | Treatment sessions and the therapeutic relationship serve the therapist’s needs rather than the patient’s; this perception may generalize to later therapies and other relationships |
| Sexual confusion | Examples include disgust with sexual feelings, uncertainty about sexual orientation, belief that self-worth comes from gratifying others’ sexual desires |
| Confusion about anger | Rage at self, self-loathing, need to suppress angry feelings, mistaken beliefs that others are angry at you |
| Source: Adapted from reference 8 | |
What about former patients?
Sex between providers and current patients is opposed by all major healthcare organizations, including the American Psychiatric Association (APA),11 American Medical Association,12 and American Psychological Association.13 The last 2 groups strongly discourage sex with former patients, but the APA’s ethics code states that such activity is always unethical.
The APA’s position reflects 2 general truths of psychiatric practice:
- Psychiatric patients often return for care years after initial treatment has ended. “Former patients” are really “possible future patients.” Improper relationships with former patients disrupt the doctor’s obligation to remain available for future care.
- Even if a patient never returns to treatment, intense feelings about a doctor can last for years. A psychiatrist who engages in sex with a former patient may evoke and manipulate feelings “left over” from therapy.
Psychiatrists therefore “have only one kind of relationship with a patient—that is, a doctor-patient relationship.”14 Moreover, as Simon and Shuman observe, “[N]o patient [is] strong enough, no pause is long enough, and no love is true enough to justify compromising this boundary.”15
Legal actions
If a physician no longer practices medicine, can any of his activities—including with a former patient—be malpractice? In fact, sex between practicing doctors and current patients might not always be malpractice. If a psychiatrist gains sexual access to a patient by saying that the sex will be therapeutic, the psychiatrist has perpetrated fraud and this intentional action might not be covered by malpractice insurance.16