When Should Certain Legal Complaints be Made Public?

Dermatology Times, Dermatology Times, December 2021 (Vol. 42. No. 12), Volume 42, Issue 12
Pages: 7

In this month's Legal Eagle column, David J. Goldberg, MD, JD, discusses why sexual assault complaints must be made public, even if the defendant is found not guilty.

Dr Love is a pillar of the dermatologic community. She has practiced in her small rural town for 10 years; her patients love her, and her peers respect her. She is active in community services, considers herself a religious person, and has never been the recipient of a legal complaint.

Thus, she is devastated when she receives a summons from the state board of medical examiners. A patient she does not remember has filed a formal complaint against Love, alleging that she unlawfully and inappropriately touched her patient while performing a full-body skin cancer examination. The patient is a well-known community activist and states in her complaint that it is time to root out people like Love. If found guilty, Love could lose her license to practice medicine and be forced to serve prison time.

Love hires an attorney, and legal counsel assures her that she will be defended appropriately. Because of her sterling reputation, Love hopes she will not be found guilty.

In the process of considering the complaint, the state medical board noticed that
a prescription previously had been written for the same patient, but nothing in the records suggested the reason. The presiding administrative judge felt that the embittered patient’s complaint was full of inconsistencies and exaggerations.

However, the judge also felt that because of her embarrassment and anxiety over the fallacious sexual assault claim, Love had changed her story as time evolved. In the end, the sexual assault charge was fully dismissed. Love received a reprimand for failing to keep proper records. Her attorney assured her that the reprimand would have no impact on her standing in the community.

Several months later, in accordance with policies stated on its website, the medical board published the full text of the initial statement of charges, determinations, and final order against Love. The text on the publicly accessible website contained the initial complaint of sexual assault.

Love was upset. She asked her attorney whether doctors, who have a well-recognized right to confidentiality during a medical disciplinary proceeding, lose that right even when the legal proceedings conclude with a not guilty verdict. Love understood that the claim of improper medical records would be made public. However, she asked, shouldn’t the dismissed claim of sexual assault be kept out of the public domain?

In a similar case in New York, the court noted that accepted law reflects a policy of keeping health care professional disciplinary proceedings confidential until they conclude with a finding of not guilty. The court noted that this policy was put in place to protect both the complainant patient and the defendant physician. The court determined that the only time a breach in confidentiality is warranted is when a physician disciplinary board orders the “annulment, suspension without stay, or revocation of the licensee’s license.”

In the New York case and that of Love, only a reprimand was issued. Therefore, the state medical board had no right to publish any comment regarding the alleged assault crime.

The court also addressed the state medical board’s assertion that it had the discretionary authority to publish any physician profiles on its website. The court acknowledged that such discretion had been granted to the state medical board. However, the discretion was not without some limitation. For example, the state medical board would be prohibited from publishing criminal “not guilty” verdicts and professional disciplinary matters that are otherwise required to be kept confidential, including pending and dismissed malpractice actions.

Love should have expected that, in many jurisdictions, her reprimand would be made public as more medical board websites list legal action against doctors. However, she was correct in her assumption that the sexual assault charge, to which she was found innocent, should not be made public.