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Malpractice Issues in Radiology |
1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Department of Radiology, Rush Medical College, Chicago, IL.
Received February 22, 2006; accepted after revision February 27, 2006.
Case summaries are based on actual events and lawsuits, although certain
facts have been omitted or modified by the author. All opinions expressed
herein are those of the author and do not necessarily reflect those of the
American Journal of Roentgenology or the American Roentgen Ray
Society.
Keywords: malpractice • medical-legal issues • sexual harassment
The Case
It was in her second year of training that the radiology resident began experiencing harassment of a sexual nature. During her first year of residency, the radiology subspecialty areas through which she rotated and her day-to-day activities had not allowed her much opportunity to have personal contact with the director of the residency program, a male radiologist. Her second year, however, was the period in her training when the resident was to spend considerable time in the section where the director himself was the head.
As documented in a written grievance prepared later by the resident and her attorney, the harassment began with the residency director telling her with increasing frequency that she was "the prettiest resident that we've ever had." Sometimes the verbal phraseology was changed to "the sexiest resident we've ever had." Over the next 2 months whenever the resident was assigned after-hours duty in the radiology department, the radiology director would "suddenly appear" saying that he, too, had "work to do" that required his presence in the department at night. On many of these occasions the director would sit down and chat with the resident about topics that made the resident feel "very uncomfortable." At times the director would tell the resident that he had an "unhappy marriage" and that often his wife was "too busy" or "simply disinterested" in meeting "his needs." At other times the director would ask the resident whether she had, or had had, a "boyfriend," sometimes rephrasing the wording by asking whether she had had "any love affairs." On four separate occasions the director invited the resident to join him for dinner, "so that we can talk more privately," or to accompany him to a movie.
On all of these occasions the resident told the director that she did not "want to hear or talk about personal things," and that she "didn't have the time to spend with him" because she "had work and studying to do." She also declined all of his invitations for dining or movies.
The resident discussed these encounters with a colleague, a woman who was in her fourth year of residency. The colleague told the resident that "rumors were prevalent" that the residency director was a "ladies' man" and had the reputation of always being "on the make." When asked about whether anyone had ever lodged a formal complaint against the residency director, the older colleague replied that to the best of her knowledge, no complaint had ever been filed.
Because the resident felt extremely uncomfortable and intimidated by the conduct of the residency director, she requested a private meeting with the department chair. At this meeting she related to the chair her experiences with the residency director, and she complained that his conduct was not only inappropriate but also interfering with her residency duties and education. The chair replied that he had not received any prior complaints of this nature about the director but that he would look into the matter.
For the next 2 months, the residency director avoided conversation and other contact with the resident. However, the resident observed that the director began favoring other residents with regard to rotation and on-call assignments. When the resident saw the director in the radiology department's lecture room, library, or hallway, he would ignore her and, in fact, would not respond to her greeting of "hello." Disturbed by what she felt was discriminatory treatment from the residency director, the resident went to the director's office to discuss the matter with him. In a one-on-one conversation, the residency director denied that he was treating the resident differently from her colleagues, but then added that if she thought he was, she "would just have to get used to it." He then asked her if she was familiar with an old World War II slogan that stated, "Loose lips sink ships." "Not really, but what is that supposed to mean?" asked the resident. "It means whatever you think it means. You figure it out," replied the residency director.
After that encounter, the resident continued to be subjected to discriminatory behavior on the part of the residency director. Eventually the resident consulted an attorney specializing in sexual harassment, who advised her to prepare a detailed document that carefully described all conversations and contacts that had occurred between her and the residency director. When completed, the document provided the foundation on which the resident would be charging the residency program director and the administration of the hospital with sexual harassment and discrimination, resulting in "substantial interference" with her "ability to derive the benefits of the radiology residency program."
Over the next 2 months, a number of meetings among the resident and her attorney and various representatives of the hospital, including the hospital's president and legal counsel, were held. After considerable negotiation, an agreement between the parties was reached. Details of the agreement were kept confidential, but it is known that although no formal lawsuit was actually filed and no hospital personnel admitted wrongdoing, nonetheless the staff radiologist was relieved of his position as residency director, and a financial settlement of an undisclosed amount was paid to the resident. Furthermore, the hospital promptly instituted a sexual harassment policy and grievance procedure that was circulated to all employees and personnel.
Several months later, the staff radiologist resigned from the hospital and joined a private radiology group in another city. Following the end of her second year of residency, the resident transferred to another program in a different state.
Discussion
Sexual harassment has received little attention in the radiology literature. However, three side-to-side articles published in 1994 [1-3] summarized a special focus session titled, "Sex Bias and Sexual Harassment in Radiology—Does It Exist?" that was held at the 1993 annual meeting of the Radiological Society of North America (RSNA). Interest in this subject had been generated by two events. First, in May 1991, Frances Conley, professor of neurosurgery at Stanford University and chief of neurosurgery at the Veterans Administration Medical Center in Palo Alto, California, received national media attention when she resigned her positions in protest of the proposed appointment as chair of neurosurgery of an individual whom she charged was guilty of sexual harassment. As a result of her highly publicized action, the appointment of the individual was later rescinded. The second event occurred shortly thereafter: At congressional hearings related to the appointment of Clarence Thomas to the U.S. Supreme Court, accusations of sexual harassment were made against Thomas by Anita Hill. The hearings were covered extensively by the news media. At the end of her commentary about the RSNA focus session, Conley observed that "The occupational environment that has been established by the old guard is an exclusive good old boys club, where elements of sexual harassment along with sex and racial discrimination remain and are accepted part of the status quo."
She then presented a challenge to the medical community: "The next round of leadership for medicine must be carefully chosen from among the enlightened, not from those who are locked in a time warp of male supremacy."
As described later, enlightened medical leadership accepted that challenge, and over the next decade they made substantial inroads toward achieving the ultimate goal of eliminating sexual harassment and discrimination.
Prevalence of Sexual Harassment in Medical Training
Sexual harassment occurs in residency programs with alarming frequency. One survey revealed that 75% of residents in anesthesiology, family medicine, internal medicine, obstetrics-gynecology, pediatrics, psychiatry, and surgery reported having experienced discrimination on the basis of sex [4]. The most common forms of sexual harassment experienced by female residents included the telling of sexist jokes, compliments on body or figure, and flirtation. Unwanted sexual contact was experienced by 13% and explicit sexual propositions by 6.5%. Most of the responding female residents indicated that the sexual harassment was generated from a supervising physician. Fifty percent of residents experiencing sexual harassment stated that they told someone about it, most often another resident or friend. Only 23% of these residents reported it to a supervising physician, and none reported it to the sexual harassment officer. Fourteen percent were afraid to report sexual harassment because it would adversely affect their evaluations, and 13% believed that such reporting would not be kept confidential and might result in retribution or punishment.
A more recent study [5] among psychiatry, internal medicine, and obstetrics-gynecology residents also disclosed that sexual harassment and abuse are prevalent in medical training programs. Thirty-two percent reported that their physician supervisors told them inappropriate details of their private lives, 24% asked about details of the residents' private lives that made them feel uncomfortable, 12% touched them inappropriately, and nearly 8% asked them directly for a date. More than 31% of the residents reported that a supervisor unfairly favored another trainee because of a personal relationship with that trainee, and 25% of the trainees reported that a supervisor had dated a fellow trainee. Sexual harassment of residents is not limited to training programs in the United States. A survey of Argentinean residents disclosed that 10% were subjected to sexual harassment; attending physicians were the perpetrators of this harassment in 14% of the cases [6].
In yet another study, 93% of women and 83% of men reported encountering sexual harassment during their residencies [7]. This study also examined the role of sex discrimination and sexual harassment in medical students' choice of specialty and residency programs. It found that across all specialties, more women than men experienced sex discrimination and sexual harassment during residency selection, with one exception: A higher percentage of men than women choosing obstetrics-gynecology experienced such behavior.
A survey of female orthopedic residents revealed that 46% experienced sexual harassment, 65% experienced sex discrimination, and 68% believed they were ignored or received less encouragement than did their male colleagues during residency training [8].
Sexual harassment among medical students also occurs, although to a lesser extent. According to one survey, 15% of graduating U.S. medical students experienced sexual harassment [9]. Three percent of students claimed that they were denied training opportunities because of sex rather than performance, and 2% reported experiencing unwanted sexual advances from school personnel. In still another survey of medical students [10], 64% of female students and 21% of male students reported having experienced sexual harassment. Finally, a study of medical students in Japan disclosed that 54% of female students and 15% of male students experienced sexual harassment [11]. Only 8% reported the abuse to authorities.
A survey of radiologic technology students conducted by a group of Texas researchers [12] found that 50% of first-year students and 87% of second-year students experienced mistreatment ranging from verbal to sexual. Thirty-seven percent of first-year students and 49% of second-year students identified radiologists as the source of abuse. The American Nurses Association has reported that 60% of nurses surveyed experienced sexual harassment at work [13]. In most of these cases, the harassment stopped before legal charges were filed.
The prevalence of sexual harassment among college students is similar. An American Association of University Women survey published in January 2006 revealed that 62% of students at American colleges and universities were subjected to sexual harassment [14]. Less than 10% of them reported the harassment to a school official.
Sexual Harassment Defined
Sexual harassment has been defined as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct that unreasonably interferes with an individual's work or study performance or creates an intimidating, hostile, or offensive working environment" [15]. There are two kinds of sexual harassment: quid pro quo and hostile environment [16].
Quid pro quo harassment (loosely translated as "something for something") occurs when an employee is required to choose between submitting to sexual advances and losing a tangible job or educational benefit. This kind of harassment usually occurs between a supervisor and subordinate.
Hostile environment harassment is unwelcome conduct that is so severe or pervasive, it changes the conditions of the claimant's employment or educational situation and creates an intimidating, hostile, or offensive work environment. Hostile work environment harassment is not limited to sexual advances and includes sex-based actions such as display of sexually explicit materials, posters, pinups, and magazines.
Sexual harassment can be verbal—such as comments about one's body, spreading sexual rumors, sexual remarks or accusations, dirty jokes or stories; it can be physical—such as grabbing, rubbing, touching, or pinching in a sexual way; or vit can be isual—such as a display of pictures of naked persons or sex-related objects, or obscene gestures. Sexual harassment can happen to men and women, and harassers can be fellow students or employees, teachers, principals, or other supervisors or coworkers [16].
A more detailed commentary on what sexual harassment is and is not has been given by the U.S. Supreme Court [17]:
Sexual harassment must be more than episodic; it must be sufficiently continuous and concerted to be deemed pervasive.... It must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim did in fact perceive to be so.... Courts [must] look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.... [The law] does not prohibit genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.... Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to [sexual] discrimination.
More detailed descriptions of sexual harassment in both the workplace and the educational environment can be found in two federal government publications referenced at the end of this article [18, 19].
Sexual Harassment and the Law
In 1803, Chief Justice John Marshall [20] of the U.S. Supreme Court observed that our government: "has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. It is an indisputable rule that where there is a legal right, there is also a legal remedy by suit or action of law, whenever that right is invaded."
The nation had to wait 161 years, however, for the law that gave its citizens the right to be free of sexual harassment. The Civil Rights Act, enacted in 1964, for the first time made it illegal in the United States to discriminate on the basis of race, color, religion, age, national origin, or sex [21]. Title VII of this act specifically prohibited employers from discriminating or harassing on the basis of sex with respect to compensation, terms, conditions, or privileges of employment. In 1972, Title IX of the Act was modified to provide its citizens equal access to educational experiences without regard to sex [22]. More specifically, that section provided that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance" [23].
Congress later amended the law to permit victims of sexual harassment to recover not only compensatory damages but punitive damages as well [24]. Enforcement functions were originally implemented by the U.S. Department of Labor but were transferred to the Equal Employment Opportunity Commission (EEOC) in 1978 [25]. One of the missions of the EEOC is to conduct litigation to obtain relief for victims of employment discrimination.
In 1988, a federal appeals court issued a ground-breaking opinion that held that sexual harassment of a physician participating in a medical residency program is a protected right under the Civil Rights Act. The case dealt with a female physician who, after being dismissed from a surgical residency program at the University of Puerto Rico, filed a lawsuit claiming she had been sexually harassed [26]. A litany of examples of sexual harassment was documented in the record. One attending surgeon assigned the plaintiff menial tasks by asserting that women should not be surgeons because they could not be relied on while they were menstruating or, as he put it, "in heat." Another told the plaintiff that women should not go into surgery because they needed "too much time to bathe, to go to the bathroom, to apply makeup, and to get dressed." Another of her supervising staff surgeons made repeated sexual advances to the plaintiff, which, on every occasion, she rejected.
Male residents in the program "plastered the walls" of the residents' lounge with Play-boy centerfolds. They composed a list containing sexually charged nicknames for all of the female residents and posted that list on the bulletin board. The plaintiff's nickname was "Selastraga," a Spanish word translated literally to mean "she swallows them." Male residents also posted on the wall a sexually explicit drawing of the plaintiff's body. The only offers to alleviate the plaintiff's harassment came from residents who told her that if she had sexual relations with them, they would protect her throughout the residency. When the plaintiff complained to the chief resident about this harassment, he responded that it was "characteristic for a low level woman to keep a relationship with a high level resident or an attending to ease her way through the residency program."
Numerous complaints to the chief resident and the chair of the department did not curtail the harassment and, if anything, resulted in increasing it. Eventually the director of the residency program retaliated by filing a complaint against the plaintiff, accusing her of "sowing friction, arguments, discord and jealousy" among the residents. This eventually led to the plaintiff's dismissal from the residency program.
The resident filed a lawsuit alleging sexual harassment and discrimination. The local federal trial court judge dismissed the action, ruling that evidence of sexual discrimination was insufficient and furthermore implying that the plaintiff, "self-described as an outspoken woman," had exaggerated or fabricated altogether the events described in her complaint. The resident then appealed to the federal appellate court. It reversed the lower court's decision, holding that the plaintiff resident clearly presented evidence of sexual harassment and discrimination sufficient to bring the matter to a trial. In an unusual rebuke to the lower court judge, the appeals court ordered that the matter be transferred to another judge.
Liability for Sexual Harassment Expands
Within the past decade, the U.S. Supreme Court has resolved three separate lawsuits that have set in motion a trend toward substantial expansion of liability for sexual harassment. The first of these cases concerned a female high school student who had sexual intercourse on a number of occasions with a male teacher. The student did not report the relationship to any school official. Eventually this relationship was discovered by the parents. The teacher was arrested and his employment at the school terminated. The student and her parents then filed a lawsuit against the school district, seeking compensatory and punitive damages on the theory that the district was responsible for the misconduct of the teacher. The lower court rejected the claim, ruling that the district could not be held liable if it had not been apprised of the activity. A federal appeals court upheld the dismissal of the lawsuit, stating, "school districts are not liable for teacher-student sexual harassment unless an employee who has been invested by the school board with supervisory power over the offending employee actually knew of the abuse, had the power to end the abuse, and failed to do so." The case was then appealed to the U.S. Supreme Court.
In a 5-4 split decision, the Supreme Court, with Justices O'Connor, Rehnquist, Scalia, Kennedy, and Thomas joining in the majority decision, upheld the lower courts' dismissal of the case [27]. Four justices, Stevens, Souter, Ginsburg, and Breyer, dissented. Emphasizing that one of the purposes of the Civil Rights Act and its subsequent amendments is "to induce school boards to adopt and enforce practices that will minimize the danger that vulnerable students will be exposed to such odious behavior," the dissenting justices vehemently disagreed with the majority. The stage was set for the Supreme Court to expand, rather than contract, an employer's liability in sexual harassment cases.
In 1998, the Supreme Court once again focused on sexual harassment, this time ruling on a case involving a female salesperson who was subjected to constant sexual harassment by one of her supervisors, a midlevel manager who had the authority to hire and promote employees. The supervisor threatened the employee with denial of tangible job benefits if she did not comply with his demands for a sexual relationship. The woman rejected the supervisor's demands but told no one about the harassment. The woman later quit as a result of this harassment, and she eventually filed a sexual discrimination lawsuit against the company. Here again, the woman had never informed anyone in authority about the supervisor's conduct, despite knowing that the company had a policy against sexual harassment. Notwithstanding the supervisor's numerous threats to retaliate against the woman if she rejected his sexual advances, the threats were not performed. Pointing out that the woman neither suffered any concrete adverse tangible job consequence nor had ever informed company management of the sexual harassment, the lower court dismissed the lawsuit. The U.S. Supreme Court, with Justices Kennedy, Rehnquist, Stevens, O'Connor, Souter, and Breyer joining in the majority opinion, reversed the lower courts' decision and reinstated the lawsuit even though company management knew nothing about the harassment, stating [28]:
A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.... The law imposes liability where the employee's purpose, however misguided, is wholly or in part to further the master's business.... An employer is subject to vicarious liability to a victimized employee for a hostile environment created by a supervisor with immediate authority over the employee.
Justices Thomas and Scalia dissented [28]: "The Court's holding does guarantee one result: there will be more and more litigation to clarify applicable legal rules in an area in which both practitioners and the courts have long been begging for guidance. It thus truly boggles the mind that the Court can claim that its holding will affect Congress' intention to promote conciliation rather than litigation."
The U.S. Supreme Court took another step in the direction of expansion of liability in 1999 when it ruled that a school board can be held responsible for student-on-student sexual harassment. A fifth-grade girl was victimized by a prolonged pattern of sexual harassment by one of her classmates. The girl reported each of these incidents to her mother and to her classroom teacher, who in turn contacted the school principal. Eventually the offending student was charged with sexual battery and misconduct. The victimized student then sued the school board, claiming that as a result of the months of sexual harassment, her previously high grades had dropped because she became unable to concentrate on her studies. The lower court dismissed the lawsuit, holding that neither the board nor any of its employees had any role in the harassment. In a split decision, the Supreme Court reversed the lower court's ruling [29], holding that the school's The Court added, "Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in sex."
...power over public school children is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.... [The school] is properly held liable in damages where it is deliberately indifferent to sexual harassment, of which it has actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
Justices Kennedy, Rehnquist, Scalia, and Thomas strongly dissented [29]:
The Nation's school children will learn their first lessons about federalism in classrooms where the Federal Government is the ever-present regulator. The Federal Government will have insinuated itself not only into one of the most traditional areas of state concern, but also into one of the most sensitive areas of human affairs.... Defining the appropriate role of schools in teaching and supervising children who are beginning to explore their own sexuality and learning how to express it to others is one of the most complex.... and sensitive issues our schools face. Such decisions are best made by parents and by teachers and school administrators who can counsel with them. The delicacy and immense significance of teaching children about sexuality should cause the Court to act with great restraint before it displaces state and local governments.... We can conceive of few interventions more intrusive on the delicate and vital relations between teacher and student, between student and student, and between the state and its citizens, than the one the Court creates today by its own hand.... The Court clears the way for the Federal Government to claim center stage in America's classrooms. Today's decision mandates to teachers instructing and supervising their students the dubious assistance of Federal Court plaintiffs and their lawyers and makes the Federal Courts the final arbiters of school policy and of almost every disagreement between students.... After today, Johnny will find that the routine problems of adolescence are to be resolved by invoking a federal right to demand assignment to a desk two rows away.
The dissenting justices' admonition that federal law regarding sexual harassment among students may be intruding too far into the classroom warrants consideration. In February 2006, in a case characterized by a child psychiatrist as an "overzealous attempt to ensure students feel safe in school after years in which society was not attentive enough," a Massachusetts first-grade boy was suspended from school for 3 days for sexual harassment after he put two fingers inside a female classmate's waistband [30]. Some years earlier, a New York second-grader was suspended for kissing a girl and ripping a button off her skirt, and a North Carolina 6-year-old was separated from his class after kissing a classmate on the cheek.
Sexual Harassment Litigation
With the passage and increasingly stringent enforcement of sexual harassment legislation, myriad lawsuits alleging harassment have frequently resulted in large jury verdicts or out-of-court settlements. One highly publicized case involved Mitsubishi Motors. In 1998, Mitsubishi settled a harassment suit, agreeing to pay $34 million in compensation to 350 women who were subjected to sexual harassment while employed in an Illinois plant. As part of the settlement, Mitsubishi affirmed a "Statement of Zero-Tolerance" policy "to swiftly and firmly respond to any acts of sexual harassment and implement a disciplinary system to strongly deter sexual harassment" [31].
In 2004, the EEOC prosecuted more than 400 lawsuits alleging employee discrimination, of which half were related to sexual harassment [25]. A $10 million settlement was reached with the Dial Corporation, against which the government had alleged that women employees were subjected daily by male coworkers and supervisory personnel to sexually offensive conduct, including groping, sexual propositions, circulation of pornography, and stalking. Of the lawsuits charging employee discrimination filed by the EEOC, 95% resulted in compensation payments.
Two other well-publicized sexual harassment lawsuits were resolved in early 2006, one by settlement, the other by jury verdict. Pepsi Americas settled a sexual harassment lawsuit filed by a former female dispatcher for $400,000 [32]. Although denying any wrongdoing, the record showed that a supervisor had told the woman she would "just have to get used to it" when she complained about male employees making sexual advances and degrading remarks. The harassment had escalated into men's room graffiti depicting her engaged in sex acts. The government attorney stated that the settlement "sends a message to companies that they have to take complaints seriously and they cannot retaliate."
A Missouri jury awarded $50,000 in actual damages and $6.7 million in punitive damages to a woman employee of a company who charged her supervisor with making lewd comments to her and once hitting her buttocks with a belt in front of another supervisor. After the settlement was reached, the woman's attorney said, "The high punitive damage award should stand as a warning: If you're a good corporate citizen and take time to train your employees and act on complaints, this won't happen to you" [33]. Universities and hospitals are not immune to this warning. Clearly, the U.S. government has maintained and continues to maintain an extremely aggressive stance in initiating litigation with the purpose of holding accountable businesses, educational institutions, and health care facilities for acts of sexual harassment or discrimination occurring within their organizations.
Summary and Risk Management
Notwithstanding the fact that myriad court decisions dealing with sexual harassment and the highly visible media attention given to them have increased the public's awareness of sexual harassment substantially, such conduct still exists in the workplace and educational institutions, including health care facilities and medical schools. Radiology facilities, whether they are free-standing imaging centers or radiology departments in hospitals or university medical centers, are not immune to the presence of such activity. The following risk management pointers will assist medical facilities and individual men or women who may be victimized by or be perpetrators of sexual harassment in reducing the incidence of such harassment, in lessening the likelihood of incurring a lawsuit alleging such harassment, and in maximizing the chances for a successful defense if such a lawsuit is filed.
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  E. J. Stern Seek and You Shall Find Am. J. Roentgenol., August 1, 2006; 187(2): 265 - 265. [Full Text] [PDF]
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