Still forgiven: MeToo movement, public outcry haven't reformed system that disciplines doctors
Posted May 2, 2018 2:04 p.m. EDT
ATLANTA -- A new national investigation by The Atlanta Journal-Constitution has uncovered 450 cases of doctors who were brought before medical regulators or courts for sexual misconduct or sex crimes in 2016 and 2017. In nearly half of those cases, the AJC found, the doctors remain licensed to practice medicine, no matter whether the victims were patients or employees, adults or children.
Even some doctors criminally convicted are back in practice, demonstrating that a system that forgives doctors -- first exposed by the AJC in 2016 -- has not changed.
Dr. Richard Martin Roberts is still allowed to see patients in Texas even though a medical board disciplinary panel in November 2017 found he repeatedly conducted unwarranted genital exams on young girls. "Only doctors get to do this," he told one, a 7-year-old he was supposed to be examining for a learning disability.
Dr. Jorge Ysacc Burgos was permitted to return to practice last month in Nevada after he was found guilty in 2017 of three misdemeanor charges of open or gross lewdness involving patients.
Dr. Om Parkash Kapoor was arrested in Jacksonville, Florida, for exposing himself and masturbating during an appointment in December 2017 with a male patient. Despite possible DNA evidence and a previous allegation of similar misconduct, the doctor remains licensed.
Doctors benefit from a system where victims are often not believed, criminal charges for physician sex abuse are rare and doctor-dominated medical licensing boards tend to offer rehabilitation and a return to practice, the AJC investigation found. At a time when powerful men in business and politics are losing careers over sexual misconduct, America's doctors remain a baffling exception, impervious to the power of the MeToo movement.
"Medical boards are unwilling to sanction physicians because 'He's recovering' or 'He wouldn't have done it if he hadn't been using drugs.' They make all kinds of excuses," said Dr. John K. Hall, a medical doctor and attorney who is a former executive director of Mississippi's medical board.
Hall, who was fired last year without cause after pushing the board to crack down in cases involving drugs and sexual misconduct, said he has observed the same attitude in other states, leaving patients at risk.
"We're no better off than we were 20 years ago," he said. "In fact, we're probably substantially worse off."
Nassar -- and hundreds more
The new national investigation is a followup to the AJC's Doctors & Sex Abuse series published in 2016. The series exposed a culture of cover-ups, secret discipline and forgiveness that enabled abusive doctors to stay in practice in all 50 states.
In that series, the newspaper identified more than 3,100 doctors who were publicly cited for sexual misconduct from 1999 through 2015. Now, the AJC has documented cases involving more than 3,500 physicians, including about 2,800 in which patients were victimized.
The newspaper conducted its latest investigation by reviewing public disciplinary actions by medical boards in 2016 and 2017 and studying those alleging sexual misconduct. The AJC also reviewed court documents involving doctors and sex crimes.
One of the physicians accounted for in the new data is Larry Nassar, the now-infamous doctor for Michigan State University and USA Gymnastics who was first exposed by a 2016 report in the Indianapolis Star.
Like others in the AJC's investigation, Nassar escaped scrutiny for years by claiming the way he touched patients was legitimate. An investigation by Michigan State following a 2014 complaint found that his actions were not sexual. Ten years earlier, police believed Nassar and took no action when a teenaged girl complained about the way he touched her during an exam.
But Nassar was in fact a predator who molested patients for years. The court testimony of more than 100 girls and young women who were Nassar victims disturbed the nation. The 54-year-old will spend the rest of his life in prison.
Detective Ninette Toosbuy, a sex crimes specialist with the Los Angeles Police Department who has worked doctor cases, wasn't surprised that Nassar got away with his crimes for so long. It's rare for doctors to be reported, but when they are reported and arrested, other victims often come forward, she said.
"Based on talking to countless victims," Toosbuy said, "they feel like, 'If I come forth, nobody is going to believe me.'"
Dramatic testimony in Texas
While Nassar has dominated news cycles, dozens of other cases with troubling allegations have largely played out without public attention. One of those is in Texas, where Roberts' case also centers on the question of whether a doctor's touch was medical -- or something else.
The 75-year-old was working at a clinic in Del Rio, on the Texas-Mexico border, in 2016 when he was accused of improperly touching the buttocks or genitals of four girls whose ages ranged from 3 to 14 years.
At a hearing last November to determine whether Roberts should remain licensed, a medical board disciplinary panel heard dramatic testimony from the 14-year-old, the mother of a 5-year-old and a medical assistant.
"I went in for a sore throat and cough, and it ended up being almost a complete physical," the 14-year-old, testifying by phone from the principal's office at her school, said. "What should have taken maybe a five-minute checkup ended up with him not telling me that he was going to be checking some things that he probably shouldn't have."
The mother of the 5-year-old, appearing in person and testifying in Spanish, claimed Roberts repeatedly touched her daughter's vagina and appeared to have an erection.
"And he kept touching her and touching her some more and some more," the woman stated. "And I asked again, 'Is this normal?' And he said, 'Yes, because she's a female and she needs to get used to it.'"
The medical assistant testified that she served as a chaperone for two of the exams and contacted her supervisor to report Roberts.
"Honestly ... I have never experienced anything like this with any other provider," the chaperone, Paloma Sanchez, said.
Although the panel determined that Roberts' conduct made him a danger to the public, it said he could continue practicing at least temporarily as long as he did so with chaperones fluent in the language of his patients.
Responding to questions from the AJC, the Texas board issued a statement saying the panel believed Roberts' examinations, while inappropriate and unprofessional, didn't "rise to the level" of sexual misconduct. The panel included a physician with 40 years of experience in identifying child abuse, the statement said.
Roberts, who holds a doctorate in genetics and has spent much of his career in academia, acknowledged in an interview with the AJC that he touched the children's genitals but denied doing anything improper. He said he routinely checks the genitals of young girls to see whether they have been sexually abused or suffer from a birth defect that can impede menstruation.
The allegations are the result of parents' failing to understand his motives, Roberts said. "The Mexican mothers in that area don't want any male to look down there, physician or not," he said. "I didn't know that."
Calling the panel's decision "appalling," he added that he planned to contest any effort to restrict his license permanently.
Records obtained by the AJC show that Roberts' examination of the 5-year-old also was investigated by Del Rio police as a possible case of indecency with a child, but the local district attorney declined to prosecute.
Therapy and training
The AJC's new investigation found that medical boards still routinely handle serious sexual misconduct as an illness or lapse in training that should be dealt with through therapy, education and watchful eyes in exam rooms.
In California, a 20-year-old woman accused Dr. Winson Koo of violating her during an exam for low back pain at Kaiser Permanente's Santa Clara office. She alleged that he inserted an ungloved hand into her vagina, asked her questions about her sex life and then leaned near her vagina and asked, "Can I?"
Just minutes after the exam, the woman, distraught and crying, returned to the registration line. Police were called to the clinic, but criminal charges were never filed. As part of an agreement with the California medical board last July, Koo was required to take a "boundaries" course and have a chaperone present during exams. He's still with Kaiser.
Koo's attorney declined to answer questions or make the doctor available for an interview.
Every doctor knows that any sexual contact with a patient is strictly forbidden. Even so, an Arizona physician, Jonathan C. Komar, violated that bright line repeatedly and lied to state medical regulators without losing his career.
Komar initially admitted to "inappropriate sexual contact" with two patients and an undisclosed number of staff members and signed an interim agreement that he would not practice. After signing, he went back to his office and saw patients that day.
Komar also lied to the medical board about how many patients he had sexual contact with. He admitted to three, but the number was at least seven, the board later learned.
Komar went to treatment and expressed remorse for his actions and being untruthful. Then in October 2016 the board allowed him to stay licensed. The conditions included seeing just male patients and attending meetings of a self-help group for sex addiction recovery.
Komar's attorney, Paul Giancola, told the AJC that Komar was allowed to practice again because he dedicated himself to a rigorous rehabilitation program. He said the Arizona board takes sexual abuse cases seriously and allows doctors who have been disciplined to return only under conditions that will keep the public safe.
Practicing after arrests, convictions
Even in criminal cases, licensing boards frequently forgive offenders and return them to exam rooms -- sometimes after time behind bars.
Burgos, the Nevada doctor, was sentenced to seven days in jail -- one for each victim, the judge said -- after he pleaded to open or gross lewdness. Patients said he inappropriately touched and kissed them during exams. One alleged that he placed his mouth on her breast when she wanted him to check a mole.
The sentence required sex offender treatment and a course on victim empathy. But Nevada's medical board didn't believe Burgos should be cast aside. It suspended his license for four months, allowing him to return to practice last month.
Burgos is "extremely contrite for his conduct," said Crane Pomerantz, the doctor's attorney.
Pomerantz added that Burgos, one of the few Spanish-speaking physicians in a largely Hispanic section of Las Vegas, fills a huge need in the community and wants to continue to help there.
The Florida doctor arrested last December for exposing himself, Kapoor, is under an emergency restriction from the state's Department of Health, but it requires only that a licensed health care professional be present when he treats male patients.
According to the arrest warrant, a man treated by Kapoor for Lyme disease at Jacksonville's Baptist Medical Center said the doctor asked him to disrobe and lean over an exam table. The man claims he then heard a moan and turned to see the doctor ejaculating into a napkin. The man immediately contacted the Jacksonville sheriff's office and provided the napkin, which he said he retrieved from a trash can.
That was the second report the sheriff's office had received involving Kapoor. In 2012, Baptist Medical Center informed authorities that he engaged in sexual misconduct with a male patient, but the report didn't lead to a criminal charge or a public finding by the Department of Health, records show.
In an interview with the AJC, Kapoor's accuser, a married father of two, expressed outrage over what happened and said he feels betrayed by a system that not only allowed Kapoor to keep practicing after the first report but still only minimally restricts his license.
"I trusted my life to this physician that the hospital knew was a dangerous man," the patient, who asked not to be identified by name, said. "And then this happens and they want to slap him on the wrist?"
In a written statement, Baptist Medical cited the fact that the 2012 claim couldn't be substantiated. "As such, (Kapoor) was permitted to continue to practice in Florida without restriction," the statement says.
Kapoor, who resigned his position at Baptist Medical in March, has pleaded not guilty to charges of exposure of sexual organs and battery, both misdemeanors. Contacted by the AJC, he said any comment should come from his attorney, Henry Coxe. The attorney, in turn, said he doesn't publicly discuss pending cases.
In North Carolina, Dr. Tuong D. Nguyen was allowed to start seeing patients again in 2005, a year after being arrested and getting deferred prosecution for allegedly stroking a patient's penis and removing his own during two exams, telling one patient he wanted to "compare."
The board's willingness to let him practice again backfired. In 2016, Nguyen was criminally charged with touching another patient in a similar manner. As a result, his license has been indefinitely suspended. Nguyen has since pleaded guilty to a misdemeanor. Through his attorney, he declined to comment.
Brian Blankenship, the North Carolina board's deputy legal counsel, said it's "very difficult or impossible" to know who is going to re-offend.
"We took action (against Nguyen), and I guess about 10 years later, when another case was brought to our attention, we quickly took action and he surrendered his license," he said.
While the AJC found more than 450 cases alleging sexual misconduct in its new investigation, there may be many more. In 31 states, cases can be hidden from the public through private board actions.
"Whether you are a child or adult, anytime that trust is violated, it's absolutely going to cause, in most people, long-lasting effects."
In 2017, Georgia's board issued 13 private orders and 146 confidential letters of concern, according to meeting minutes and board information provided to the AJC. How many of those relate to sexual misconduct is not disclosed.
Many other doctors are never reported, advocates say. Patients often say they are confused by a doctor's actions, fear they won't be believed or worry that filing a complaint will take a personal or professional toll.
The Michigan medical board told the AJC that even though dozens of patients testified against Nassar in court, no one filed a complaint with the board before he was exposed in media reports.
"The hashtag MeToo and the Larry Nassar case serve a very, very important purpose, and that is to raise awareness and give women the courage to come forward," said Rachel V. Rose, a Texas lawyer whose work includes health care law. She also teaches bioethics.
To encourage reporting, Rose said, medical boards need to change their "protectionist" culture that cites the doctor shortage and the expense of medical training when offering rehabilitation in sexual misconduct cases. She said more attention needs to be paid to the damage an abusive doctor can inflict.
"It has very traumatic effects," she said. "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."
For Rose, the issue isn't just legal or academic. It's personal. She was in law school, she said, when she woke from gallbladder surgery and realized she had a huge vaginal tear and bleeding. The surgery was a laparoscopic procedure with tiny incisions that had nothing to do with her genitals. The only possible explanation, she said, was a sexual assault.
"There was no doubt it had happened," she said.
That evening, Rose consulted with her parents, and an attorney and a physician. She was advised that pursuing a case could hurt the legal career she was just about to begin. She never reported the incident.
"I hope a time does come where anyone can feel that their voice will be heard by someone when this happens to them," she said, "and that the medical community will react accordingly to the complaint."
Opposition to change
Some states have considered changes to make their laws and licensing boards less forgiving to abusive doctors -- but more often than not, those changes are beaten back by a powerful medical lobby.
Mississippi briefly tried a new approach when it selected Hall as its new executive director in 2016.
His appointment came after the AJC ranked Mississippi worst in the nation for patient protection in a 50-state rating. Consumer Reports ranked the board's website dead last around the same time.
Hall immediately gave the public access to more information about disciplined doctors and oversaw aggressive investigations in sexual misconduct and improper prescribing cases. When the board fired him, he wasn't surprised.
"I was never a good fit for them, because I believe in transparency and I believe in following the rules and I believe that laws exist to protect people," he said. "They didn't really believe any of that."
Hall pushed for something close to zero tolerance, arguing that Mississippi failed in its handling of several doctors. One, Dr. Bret Boes, faced 29 pages of allegations, including a sexual relationship with a patient and improper prescribing. Often, the prescriptions were written to friends of that patient and the pills would go back to her.
Boes told the AJC he's practicing emergency medicine again. He acknowledged making mistakes and said his conditions are strict, requiring drug screens and polygraphs and attendance at self-help meetings. He said the monitoring program is demanding, holding him to higher standards than other doctors.
Hall also supported legislation in Mississippi in 2016 that would have made it illegal for a doctor to have sex with a patient. However, like recent bills in Georgia and other states aimed at reining in offending physicians, the Mississippi bill went nowhere.
Wyoming proved to be an exception when this year it passed a patient protection law pushed by a woman who testified she was sexually abused by Dr. Paul Harnetty. The doctor was convicted of assaulting two patients in Wyoming after previously facing allegations of sexual misconduct in Georgia.
In Michigan, a package of bills filed in response to Nassar's abuse won state Senate approval, but the House has yet to approve the measures in the face of opposition from doctors, colleges, religious institutions and businesses. In Louisiana, the legislature may go the other way. It is considering giving more legal protection to doctors under investigation. If the bill passes, sex abuse cases would be harder to pursue.
When Hall arrived in Mississippi, he wanted to change a culture that viewed doctors as so important and expensive to train that their abuse should be forgiven. Hall called that viewpoint "inherently offensive."
Two factors made the handling of Nassar's case different, he said. First, Nassar's victims were primarily children and teens, not adults whose complaints are often brushed aside. But, in the end, what mattered most, Hall said, is that those looking at the matter didn't get distracted by Nassar's credentials.
"Doctors get treated as professionals, they get special treatment," he said. "What the criminal justice system did in this case was, they said, 'We don't care that you're a doctor.'"
Carrie Teegardin and Danny Robbins write for The Atlanta Journal-Constitution. Email: cteegardin(at)ajc.com, drobbins(at)ajc.com.
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