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Beware of Intimate Relationships with Current or Former Patients and their Family Members-the New WAC 246-817-460By: Benjamin J. Lantz A "sexual misconduct" claim can cost more than mere embarrassment-it could technically result in the immediate suspension and possible revocation of your license. The Washington Legislature and DQAC recently enacted several statutes and regulations concerning a dentist's personal relationships with current and former patients and their family members. These new rules prohibit more than sexual relationships with current patients. Under the new regulations, a former patient might be able to make a "sexual misconduct" allegation because a dentist asked him or her out on a date after the dentist/patient relationship ended. In addition, the patient could sue you for an alleged breach of fiduciary duty and negligence. Given the potential consequences, it is important that every dentist understand these new rules and regulations in order to avoid even the appearance of impropriety. I. Relationships with Current Patients or Key Parties.This year, DQAC defined "sexual misconduct" in a newly adopted section-WAC 246-817-460. This section went into effect on January 19, 2008. DQAC forbids "sexual misconduct" with current patients or "key parties." Two questions arise when reading these new rules: (1) what constitutes "sexual misconduct"?; and (2) who is a key party? A. What is Sexual Misconduct? Obviously, "sexual misconduct" would include any kind of sexual relationship with a patient or key party. However, the definition extends well beyond just intercourse. "Sexual misconduct" also includes: (1) soliciting a date with a patient or key party; (2) kissing; (3) hugging, touching, fondling or caressing of a romantic or sexual nature; (4) discussing the sexual history, preferences or fantasies of the dentist; (5) any behavior, gestures, or expressions that can reasonably be interpreted as seductive or sexual; (6) sexually demeaning behavior including any verbal or physical contact which can reasonably be interpreted as demeaning, humiliating, embarrassing, threatening or harming a patient or key party; and (7) showing a patient or key party sexually explicit photographs, other than for legitimate health care purpaoses. These prohibitions apply both inside and outside the office. They also apply even if the patient or key party initiates or consents to the relationship. B. Who Is a Key Party? The prohibition of sexual misconduct with current patients also applies to "key parties." A "key party" is "a person legally authorized to make health care decisions for the patient." WAC 246-817-450(3). Therefore, a "key party" would include the parent or guardian of a minor child. For example, if a dentist asked a single parent of a child patient out on a date, the dentist might later face a charge that he or she violated WAC 246-817-460, and DQAC could charge the dentist with sexual misconduct. II. Relationships with Former Patients or Key Parties.WAC 246-16-100(3) prohibits a "health care provider" from having a sexual relationship with a former patient or key party for at least two years after the completion of treatment. A "health care provider" under this regulation is defined in WAC 246-16-020(2) as an individual applying for a credential or credentialed in a profession listed in RCW 18.130.040(a). A dentist is not listed in RCW 18.130.040(a). Therefore, DQAC adopted its own restrictions on a dentist's relationship with former patients or key parties in WAC 246-817-450. DQAC prohibits the same conduct with former patients or "key parties" as with current patients and key parties discussed above. However, DQAC did not follow WAC 246-16-100(3)'s minimum two year ban on relationships with former patients. Instead, DQAC adopted a more ambiguous test. It prohibits a dentist from engaging in "sexual misconduct" with a former patient or a key party if (1) the dentist uses or exploits the trust, knowledge, influence or emotions derived from the professional relationship; or (2) the dentist uses or exploits privileged information or access to privileged information to meet the dentist's personal or sexual needs. So it is technically possible for a former patient or key party to allege that a dentist engaged in "sexual misconduct" by even asking him or her out for a date. DQAC will consider the following factors in order to determine if "sexual misconduct" has occurred: (1) documentation of a formal termination; (2) transfer of care to another health care provider; (3) duration of the dentist-patient relationship; (4) amount of time that has passed since the last dental health care services to the patient; (5) communication between the dentist and the patient between the last dental health care services rendered and commencement of the personal relationship; (6) extent to which the patient's personal or private information was shared with the dentist; (7) nature of the patient's health condition during and since the professional relationship; and (8) the patient's emotional dependence and vulnerability. Again, these regulations apply even if the former patient or key party initiates or consents to the relationship. III. ConclusionGiven these new rules you must be careful in your interactions with patients, former patients, and "key parties" both inside and outside the office. An allegation of sexual misconduct could cause irreparable damage to a dentist's personal and professional life. What previously may have been characterized as flirtation may now arguably be considered "sexual misconduct" if it involves a current or former patient or key party. If an issue comes up about a potential relationship, please be aware of the possible consequences and consult with an attorney. |
