In the face of widespread opposition, the Oregon Medical Board has tapped the brakes on a rule requiring “medical chaperones” be present during sensitive examinations.
In October, the board held off on adopting the proposed regulation after providers complained it would add costs and disrupt work flows at already short-staffed practices while potentially reducing patient services.
At a November hearing of a board workgroup on sexual misconduct, providers raised concerns about the rule. But a woman who testified anonymously said she and likely her children were given inappropriate exams by a doctor.
“I realize it’s a burden,” she said of the proposed requirement. “I realize it might feel like a hoop. On the other hand, the consequences are long lasting.”
Dr. Scott Browning, who runs a colon and rectal practice with offices in Portland, Tigard and Milwaukie, in written comments said, “This proposed rule is a terrible idea that would profoundly disrupt if not close our practice and which benefits no one.”
Deliberations began in January
In January, the Oregon Medical Board tasked a workgroup with addressing sexual misconduct. It held public meetings in February, March and April.
The #MeToo movement has called out sexual abuse in entertainment and other fields since emerging in 2017.
The National Practitioner Data Bank shows few physicians sanctioned for sexual misconduct. But sexual misconduct among doctors has drawn headlines, notably Larry Nasser’s abuse of United States women's national gymnastics team.
In Oregon, David Farley, a now former West Linn doctor, was sued for allegedly abusing patients for years. Oregon Health and Science University earlier this year paid over half a million dollars to settle a sex abuse lawsuit brought against Dr. Jason Campbell, known as the “Tik Tok Doc.”
Nicole Krishnaswami, executive director of the Oregon Medical Board, said that in 2019, the board received 25 complaints alleging sexual misconduct by its licensed professions, 28 in 2020 and 33 in 2021. The board licenses MDs, DOs, DPMs, physician assistants and acupuncturists.
The board underwent a full-day training last year on trauma-informed approaches to sexual misconduct investigations, and convened a Workgroup on Sexual Misconduct in January to make further commendations, she said.
The workgroup has recommended updating language in regulations, creating better education information for patients and reaching out to law enforcement. In October, the board adopted a rule proposed by the workgroup to increase monitoring of physicians accused of sexual misconduct.
Chaperones intended to reassure
The chaperone rule, submitted by the workgroup in April, would codify a January 2020 recommendation from the American College of Obstetricians and Gynecologists that a chaperone be present for all breast, genital and rectal examinations.
Kate Connors, spokeswoman for the American College of Obstetricians and Gynecologists, said in an email didn’t know how many states have acted on the recommendation, but she said Oregon wouldn’t be the first.
A workgroup formed by the Federation of State Medical Boards issued a report last year that called for “cultural change” around physician sexual misconduct, noting the “inherently imbalanced” doctor-patient relationship. The 31-page report called for state medical boards to strengthen oversight and proactively educate the public about predatory physicians.
While the report supported a chaperone requirement, it noted that some international jurisdictions and state medical boards have dropped their mandates because they “merely provide the illusion of safety and may therefore allow harmful behaviors to go unnoticed.”
With Oregon’s proposed version of the rule, the goal was in part to reassure patients who may feel vulnerable during these examinations. The trained chaperones would also serve as a witness in case there was any misunderstanding or concern about misconduct, supporters said.
A staff memo for the workgroup meeting earlier this month states that the chaperone requirement was proposed “due to the evidence of the detrimental effects of sexual misconduct on patients’ well-being, the patient–physician relationship, and public trust in the medical profession.”
“There is a need to institute routine chaperoning to reduce the risk of sexual misconduct for Oregon patients,” the memo said.
Comment continues after delay
Initially, the rule was considered likely to be adopted by mid-2022 and go into effect Jan. 1, 2023.
But after the board received a large number of comments during a public comment period that began in August, including from the influential Oregon Medical Association, it decided not to approve the proposed rule. Instead, in October the board reconvened the workgroup and reopened public comment.
“If we had to have a chaperone in with us for every rectal exam, I think it would create a logistical logjam in our clinic,” Chris Kyle, a urologist with Oregon Urology Institute, told the workgroup during its November 17th hearing.
However, the workgroup also heard from an anonymous woman who said she had been victimized.
Because doctors are so trusted, she asked the workgroup not to treat the issue like “an inconvenient insurance billing system.”
Board records show medical providers located around the state have submitted comments expressing concern about the feasibility of the rule and that bringing a third person into a room during an examination would make patients less comfortable.
The Oregon Medical Association said in written comments to the board that it supports safeguards against sexual misconduct. But it said the rule was based on a recommendation for obstetricians or gynecologists. The association said the rule “appears too broad in its application and imposes what we believe are unintended administrative and financial burdens on all medical practices.”
The association pointed to several scenarios where physicians could run afoul of the rule, such as an emergency room doctor who performs an external wellness check on a patient. It also pointed to how medical practices could be left in a difficult spot if a physician assistant trained as a chaperone calls in sick.
Currently, the rule allows patients to opt-out, but providers would be required to explain the importance of the chaperone. A professional covered by the rule could defer the examination if the patient opts out.
Kelsey Fisher, a Portland licensed direct-entry midwife, said in written comments she was concerned that a deferred examination could cause significant patient costs around childcare, transportation or missed work, which she said would fall hardest on low-income or marginalized populations.
“I worry that attempting to obtain consent for a medical chaperone at the moment of the appointment will be coercive,” she said. “Given the sensitive nature of these types of examinations, patients might already be experiencing stress and may not feel comfortable declining, even if that's what they actually want to do.”
Dr. Don Thieman, CareOregon associate medical director, said in written comments that the rule could result in more patients missing examinations that would catch pelvic or breast cancers early.
Multiple providers commented that the rule would upend work flows by having to constantly bring in staff to chaperone an exam. Colon and rectal doctors were particularly concerned, telling the workgroup their already anxious patients don’t want anyone else in the room.
Under the proposed rule, the chaperone must be a licensed health care professional or have completed training approved by the Oregon Medical Board. The chaperone cannot be a personal friend or relative of the patient or medical provider, which multiple providers said could be a problem in small communities.
Dr. Kevin Grayson, an east Oregon pediatrician, said in written comments that the draft rule would prevent him from performing an exam on a newborn or even changing a diaper at the parent’s bedside without a chaperone. Similarly, he said a parent wouldn’t be able to opt-out their child during routine exams. Then there’s the question of older pediatric patients, he said.
ZoomCare, a chain of clinics in the Pacific Northwest, was supportive of the rule, which aligns with a policy it recently adopted at 63 locations.
“The (Oregon Medical Board’s) draft proposed rule, if adopted, would be an important step to ensure that patients and providers alike are protected from inappropriate behavior when sensitive exams are medically indicated,” Dr. Erik Vanderlip, ZoomCare’s chief medical officer, said in written comments.
The workgroup has not yet scheduled its next meeting. Written comments can still be submitted, click here for more information.
You can reach Jake Thomas at [email protected].