Contextualizing and Strengthening State Medical Board Responses to Physician Sexual Misconduct

As the instrument through which states regulate the professional conduct of medical practitioners, state medical boards play a critical role in addressing physician sexual misconduct. Sexual misconduct in the medical profession is particularly troubling given that physicians are often privy to the most intimate aspects of their patients’ lives. Patients place a profound trust in their physician, and the resulting relational dynamic may impact how a patient perceives or reacts to a physician’s conduct. State medical boards are often criticized for failing to respond appropriately to instances of sexual misconduct. However, some of these criticisms fail to consider historical attempts by these boards to address this issue; they particularly fail to recognize that medical boards are just as proactive as other professional organizations in addressing and sanctioning sexual misconduct. Criticisms also fail to fully appreciate the impact of the complaint-based structure of state medical regulatory law, the lack of information sharing between other stakeholders in health care and state medical boards, and structural and legal constraints that impact the ability of state boards to investigate accusations of misconduct and discipline licensees accordingly. In sum, most critiques of state board actions in legal literature fail to properly contextualize state board responses and thus present solutions that miss the mark. The purpose of this paper is to contextualize the responses of state medical boards and highlight the efforts that have already been made by individual medical boards and the Federation of State Medical Boards (FSMB) to address sexual misconduct. Particular focus will be given to the FSMB’s Workgroup on Physician Sexual Misconduct and the 2020 FSMB Report on Physician Sexual Misconduct (FSMB Report). The FSMB Report illustrates the barriers that prevent medical boards from responding more robustly to reports of sexual misconduct. It also provides recommendations in furtherance of the FSMB’s effort to improve identification of improper physician behaviors. The proactive efforts of the FSMB to address sexual misconduct serve as a critical foundation for more expansive collaborative efforts across health care to eradicate sexual harassment, abuse, and other forms of misconduct