Protecting the profession: lessons from the recent physician scandals

Standards of conduct

The sexual abuse perpetrated by Nassar, and of which Tyndall, Haddon, and Strauss are also convicted/accused, is prohibited on many levels. Legally, state laws proscribe sexual assault and battery. Institutions like MSU and USC, like every federally funded education program or activity, have policies that specify inappropriate actions that violate Title IX of the Federal Education Amendments Act of 1972 (e.g., the sexual harassment policy that Tyndall allegedly violated at USC). These inappropriate actions also violate common principles of medical ethics and standards of conduct annunciated by most professional organizations and associations for physicians. These principles and standards of professionalism and ethics are the moral framework for this article.

Professional standards and the basic principles of ethics in healthcare derive from the fiduciary nature of the relationship between a physician and patient. The patient (the beneficiary) places his/her trust in a physician out of a position of vulnerability and need, expecting the physician (the fiduciary) to act in his/her best interests [17]. A physician agrees to maintain the fiduciary role because they are a member of the profession, and the profession as a whole decided in its infancy that its interactions with patients to be this kind of relationship rather than a business or contractual one [17]. The Charter of Medical Professionalism frames this relationship in terms of a contract with society, stating, “Professionalism is the basis of medicine’s contract with society. This demands placing the interests of patients above those of the physician, setting and maintaining standards of competence and integrity, and providing expert advice to society on matters of health” [18].

If the physician assents to this cooperative, fiduciary relationship, certain responsibilities follow. In a typical relationship, the patient is an autonomous individual with established legal and moral rights to make decisions for themselves. The physician must respect the autonomy of the patient and not only allow, but also enable, them to make decisions. Because the patient puts their trust in the physician, the physician is responsible for being worthy of that trust, meaning faithfully acting in the best interests of the patient instead of one’s own interests. Tom Beauchamp and James Childress [19], the ethicists who originally identified the four common foundational principles of medical ethics, categorize this idea in the ethical principles of beneficence and nonmaleficence. The principle of beneficence states that a physician should actively promote the interests of a patient (or improve their well-being), and nonmaleficence states that a physician should not harm, or when possible, prevent harm to a patient.

Applied to the actions of Larry Nassar in the context of the physician–patient relationship that he had with the gymnasts and athletes he treated, we can see that he had a responsibility to avoid harming them, and to act beneficently toward them. Although the legitimate treatments he performed on them may have been beneficial to their health, the illegitimate touching of a sexual nature he did to them was not for their benefit, but his. These prurient actions were not only nonbeneficial for these athletes, but also were harmful in a variety of ways.

Rachel V. Rose, JD, a Texas lawyer, bioethics teacher, and victim of sexual assault, says this about sexual misconduct by physicians: “It has very traumatic effects. You’re in with a professional or person you are supposed to trust. Whether you are a child or adult, anytime that trust is violated, it’s absolutely going to cause, in most people, long-lasting effects” [20]. Rhonda Freeman, PhD, in an article for Psychology Today, concurs: “Betrayal, violation of trust, and remembrance of the inappropriate acts can leave abuse survivors with trauma-related symptoms. Conditions such as posttraumatic stress disorder (PTSD), anxiety, depression, complex PTSD, eating disorders, substance abuse, alcohol dependence, or a disordered personality (i.e., borderline personality) are not uncommon after abuse” [21]. The emotional testimonies of Rachel Denhollander and the other females that came forward to speak against Nassar are powerful testimonies to the deleterious effects of his abuse, and abuse in general.

Informed consent

Another of the fundamental principles identified by Beauchamp and Childress [19] is the principle of autonomy, or respect for the autonomy of other people. One implication of this principle is “acknowledging the moral right of every individual to choose and follow his or her own plan of life and actions” [22]. In the context of medical ethics, this refers to the right of individuals to make decisions about their own healthcare, or to provide consent to examinations and treatments. The requirement that physicians must obtain informed consent from patients prior to medical interventions is well established in the United States.

Based on the testimonies of his victims, Nassar did not provide enough information to his patients for them to be able to distinguish between legitimate treatment procedures and the illegitimate sexual touching to which he subjected them. In his case, we can surmise that the lack of information was intentional, a necessary step in the deception played upon his victims. This deception also played a part in protecting him from the scrutiny of other physicians and colleagues, because we can see in hindsight from the reports on the results of the Title IX investigation from 2014: “In the spring of 2014, Nassar was briefly suspended while the school’s Title IX department investigated a complaint by a student who alleged he’d sexually abused her, but was reinstated after a panel of medical experts, all of whom had close ties to the sports doctor, said there was nothing sexual about Nassar’s treatments. He continued to see – and, according to police reports, continued to abuse – patients at MSU despite remaining under criminal investigation for the same allegation that sparked the Title IX probe” [23].

The process of informed consent is not just the patient’s opportunity to evaluate risks among treatment options, but it is also a part of the physician–patient encounter that protects and facilitates a patient’s right to self-determination. The 1982 Report of the President’s Commission in part recognizes informed consent as a protection for patients: “Self-determination as a shield is valued for the freedom from outside control it is intended to provide. It manifests the wish to be an instrument of one’s own and ‘not of other men’s acts of will’” [24].

A proper and thorough process of informed consent between a physician and patient provides the patient with an opportunity: (1) to fully understand the nature of the treatment options; and (2) to accept a treatment option based on rational reasons or reject any treatment options that they are not comfortable with (or is subjectively judged to be antagonistic to their best interests).

One positive aspect of this trend is the move toward patient-centered understanding and values in the consent process. The practical effect of the patient-centered shift is that it provides the patient with justification to request more information, in some situations beyond what a reasonable physician might think to disclose, in order to make an intelligent decision with which they are fully satisfied. When informed consent becomes routine in the physician–patient relationship, and the decision is the result of a shared decision-making process, it empowers the patient and helps to prevent coercion and abuse. Relating back to the Nassar and Tyndall cases, if a robust informed consent process and standard practice of shared decision-making were present when those athletes were considering treatments that might involve touching of sensitive areas, they (or their parents) might have felt more empowered to refuse those treatments, or request alternatives.

Patient advocacy

The ability to prevent coercion and abuse does lie to some extent with the patient themselves, or the patient’s proxy. Patients and surrogates should ask their physician to explain the need for a treatment or the details of how a treatment is implemented if they do not understand. The principle of respect for autonomy, universal in professional codes of ethics and in the medical ethics literature, grounds a patient’s justification for accepting or refusing treatment according to the patient’s own choice.

Regardless of how well-established it is, the patient’s ability to choose remains potential until actuated by the patient themselves. This is in no way to blame victims for their abuse. Forces such as vulnerabilities and the imbalance in the physician–patient relationship are reasons why patients may never realize their autonomous potential. Much of the onus, however, is on physicians to enable patients to make their own choices, and to minimize the power imbalance in the relationship. One step that physicians can take to help patients actuate their autonomy is to involve them continuously in the physician–patient relationship and informed consent process. Stephanie Tillman, a certified nurse midwife, gives an excellent example in her guest editorial: “In midwifery school, I was trained to discuss transferring power prior to starting any external or invasive gynecologic care (e.g., “This exam is in your control, you can stop me at any time for any reason, please let me know if there’s any pain and I’ll change what I’m doing”), what will happen before an examination even starts (e.g., “I’ll use a swab to collect a sample and then insert the speculum”), utilize language throughout the examination to continue to ensure understanding and give opportunities for questions or reclamation of consent (e.g., “You’ll feel my hand on your leg and then on the outside”), check in throughout the procedure (e.g., “Tell me if you’re feeling any pain”), and then afterward (e.g., “Tell me if there’s anything I can do next time to make that exam more comfortable”) [25].

The point to be learned is that patients can help protect themselves from abuse by educating themselves and demanding that physicians educate them on the treatments and therapies involved in their care. Patients should enter the therapeutic relationship expecting a partnership with the physician in which both of them are fully engaged in making decisions. Physicians, because of the fiduciary nature of the relationship and inherent power imbalance, have more responsibility for establishing this cooperative partnership with patients. If the relationship exists for the benefit of the patient, this shared decision-making model appears to be the ideal: “Patients who collaborate with their physicians to reach a shared healthcare decision have greater trust in the doctor–patient relationship, cooperate more fully to implement the shared decision, and express greater satisfaction with their healthcare” [26].