The Texas Medical Board (TMB) and the Texas Board of Nursing (BON) take complaints about sexual relationships between medical professionals and their patients very seriously. As such, each agency has developed disciplinary rules that may affect you if you become involved in such a relationship. Failure to follow the relevant laws and rules can negatively affect your license and career. Therefore, if you find yourself in this situation, you should take steps to protect your license by enlisting the help of an experienced medical license defense lawyer.
Texas Occupations Code and Sexual Relationships with Patients
The Texas Occupations Code (the Code) outlines several specific but non-exhaustive examples of actions that violate the Code. Some of these actions fall under the broad classifications of “practice inconsistent with public health and welfare” and “unprofessional and dishonorable conduct.”
22 Tex. Admin. Code §190.8(2) defines unprofessional and dishonorable conduct as actions that are “likely to deceive, defraud, or injure the public.” §190.8(2)(E) provides that “engaging in sexual contact with a patient” is an example of unprofessional and dishonorable conduct. Other relevant examples include “engaging in sexually inappropriate behavior or comments directed toward a patient” under §190.8(2)(F) and “becoming financially or personally involved with a patient in an inappropriate manner” under §190.8(2)(G).
Sanctions for Physicians Engaging in Sexual Relationships with Patients
The sanctions for physicians found to be engaging in sexual relationships or sexually inappropriate behavior with patients are quite severe. Some of the less onerous sanctions available in disciplinary proceedings before the TMB for unavailable for these types of violations. Under Tex. Occ. Code §164.0015(c)(1)(C), the TMB may not impose a remedial plan, which is an informal resolution of a disciplinary complaint, to resolve “a matter in which the physician engaged in inappropriate sexual behavior or contact with a patient or became financially or personally involved with a patient in an inappropriate manner.”
The TMB disciplinary matrix outlined in 22 Tex. Admin. Code §190.14(9) outlines a range of sanctions for these boundary violations. For example, at the low end of the spectrum of sanctions, for behaviors involving only verbal remarks or inappropriate behavior but not touching, the sanctions could include an Agreed Order containing a public reprimand, completion of the Vanderbilt or PACE boundaries course, completion of the jurisprudence exam, continuing medical education coursework in ethics, and the presence of a chaperone when seeing patients. For more severe violations, such as cases involving physical contact, an Agreed Order might contain all the previously listed sanctions, along with the completion of an independent medical examination, an order that a doctor may not treat patients of the affected gender, and even suspension or revocation of the doctor’s medical license.
Unprofessional Conduct by Nurses
22 Tex. Admin. Code §217.12(6) outlines types of behavior that constitute misconduct when nurses engage in them. These behaviors are classified as unprofessional conduct likely to deceive, defraud, or injure clients or the public, which can lead to sanctions of nurses by the Texas Board of Nursing (BON).
Under this section, misconduct specifically includes sexual activity between nurses and their patients. §217.12(6)(D) specifically refers to “violating professional boundaries of the nurse/client relationship including but not limited to physical, sexual, emotional, or financial exploitation of the client or the client’s significant other. Similarly, §217.12(6)(E) includes as misconduct “engaging in sexual conduct with a client, touching a client in a sexual manner, requesting or offering sexual favors, or language or behavior suggestive of the same.”
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Sanctions for Unprofessional Conduct by the BON
Tex. Occ. Code §301.452(b)(10) establishes unprofessional conduct in the context of nursing as a ground for disciplinary action by BON. The BON Disciplinary Matrix sets forth the sanctions for different levels of unprofessional conduct by nurses. The level of sanction that a nurse will receive for an improper sexual relationship or activity with a patient depends on several factors, including the number of incidents, whether actual harm occurred, the severity of the harm that occurred, a history of prior complaints or discipline for the same offense, the vulnerability of the patient, and any criminal conduct that occurred.
Under the Disciplinary Matrix, a First Tier Offense related to this section of the Code involves an “isolated failure to comply with Board rules regarding unprofessional conduct resulting in unsafe practice with no adverse patient effects.” It also may involve an “isolated violation involving minor unethical conduct where no patient safety is at risk . . ..” Unprofessional conduct involving sexual activity with a patient typically does not fall into this category.
A Second Tier Offense involves “failure to comply with a substantive Board rule regarding unprofessional conduct resulting in serious risk to the patient or public safety” or “repeated acts of unethical behavior or unethical behavior which places patient or public at risk of harm.” It may include a “personal relationship that violates professional boundaries of nurse/patient relationship.”
A Level I Sanction provides a Warning or Reprimand with certain Stipulations, such as public service, supervised practice, and remedial education, as well as a fine of $250 for each violation. However, a Level II Sanction may result in suspension or revocation of one’s nursing license, with no possibility of reinstatement until the payment of fines, completion of remedial education, and presentation of evidence of other rehabilitative efforts to the BON. In addition, this offense level will result in a probated suspension for at least two to three years with BON monitoring and supervised practice.
Finally, a Third Tier Offense involves “failure to comply with a substantive Board rule regarding unprofessional conduct resulting in serious patient harm” or “repeated acts of unethical behavior or unethical behavior which results in harm to the patient or public.” A Third Tier Offense includes “sexual or sexualized contact with a patient.” Level I and Level II Sanctions can result in the revocation of one’s nursing license. In addition, in the case of a Level II Sanction, the BON may temporarily suspend a nursing license if the violation is a continuing and imminent threat to public health and safety.
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Find Out More About How to Best Handle Your Disciplinary Proceedings
We want to help put you in the best position to protect your medical or nursing license. As a result, you need immediate legal representation to defend your license from these potentially severe consequences. At Bertolino LLP, we offer experienced medical and nursing license defense services for those facing disciplinary action. Contact us today by calling (512) 515-9518 or looking us up online. We can analyze the circumstances that led to the complaint against you and determine the right legal strategy for you.