Hot Buttons for 1998

by ANNE PAXTON

Editor, Professional Licensing Report

Sex and disabilities have produced plenty of controversy in the professional licensing arena, as concerns have risen over the rights of patients and the disabled. But this year we've been given some new twists on familiar themes.

How sexual misconduct should be punished remains one of the most sensitive questions in the professions. A series of articles in the New York Times regional newspapers in July reported that three-fourths of the Florida doctors who were punished this decade for sexual offenses are still practicing. The report prompted state officials to promise to seek a zero-tolerance policy. The secretary of the state health department, James Howell, said he would personally be attending medical board meetings, and would recommend that the board automatically revoke the medical license of any doctor proven to have had sex with a patient.

One case vividly illustrated the polarities that sexual misconduct inspires. A physician convicted of sexual battery involving women patients was fined $15,000 and suspended for five years. After three years, the physician sought to have his license restored even though he had not paid the fine; he needed to practice to get the money, his lawyer said. The Florida Board of Medicine heard the arguments, then voted strictly along lines of gender and professional status. All the women, who happened to be public members, voted not to restore the license, while the physicians, all male and in the majority, voted to give it back.

Their comments were telling. One consumer member's viewpoint was that the physician "may be the finest doctor in the world. But do I want him touching patients? No. Do I want him touching me? No. Do I want him giving my daughters their first breast exam. No." A physician member, however, saw it from the other side: "If the board is too lenient it's because it is a very human group of people. We're not out to bust a guy so he can't go back to practicing medicine. I'm not interested in taking a guy's license. He's worked very hard for it. I don't consider myself to be a judge and a jury."

Complaints about sexual misconduct by health practitioners in Pennsylvania have more than tripled since 1990, said the state medical board recently. Possible legislation to criminalize sexual relationships between health practitioners and their patients is in the works. One of the discussion topics in the Bureau of Professional and Occupational Affairs: how to handle common defenses practitioners use. In some cases, they argue that the sex was consensual, or that too much time has elapsed since the incident. Others may even insist they are addicted to sex and should undergo therapy, not punishment.

In Ohio, pediatrician Gary Gladieux was accused not of sexual misconduct with his patients, but of having sex with seven of his patients' mothers. Did he deserve any punishment, or even a reprimand for the offenses, which were not precisely named in disciplinary guidelines or ethics codes? Some ethics experts testified that parents are surrogates for their children, and there was the potential for interference in the physician's relationship with the pediatric patients, in violation of a fundamental patient right. The state medical board recommended a one-year suspension and completion of an ethics course. But Gladieux's attorney argues that while the behavior was inadvisable, unprofessional, and undesirable, it was not necessarily unethical. He asks how sanctions can be imposed for alleged violations of rules and standards that have never been written.

In another case now on appeal, the courts have been asked to decide whether sexual harassment of co-workers is a professional discipline issue. The case involves a hospital physician who harassed fellow workers; the Maryland Board of Physician Quality Assurance found the physician engaged in immoral and unprofessional conduct, reprimanded him and ordered him into therapy. An appeals court later upheld the sanctions, but said the board could only punish conduct that occurs while the doctor diagnoses, cares for, or treats patients.

The widely supported goal of accommodating the disabled on professional licensing exams continues to founder on painful specifics, with the bar exam as the focus of most challenges by candidates. Physical disabilities and past drug abuse have been issues over the last few years. But recently learning disabilities have become a major source of strife. In July, a federal court in New York ordered the state board of law examiners to allow a dyslexic candidate twice the normal time to take the state bar exam. Interestingly, the judge rejected the board's expert testimony that all test subjects who scored above a certain cutoff on particular psychometric tests did not have a reading disability. She also agreed that the bar exam is essentially an employment test.

But only a month earlier, a West Virginia court turned down three candidates who sought twice the time for the first part of the Medical Licensing Exam, usually given in the second year of medical school. The students' alleged attention deficit disorder did not substantially limit a major life activity, the judge said, adding that the court could not allow persons to advance to professional positions "through the proverbial back door."

Charges that some candidates are exploiting loopholes to get extra time to take the law exam led the California State Bar this year to propose revamping its requirements for special accommodations, including among other things a retest of candidates for their disabilities prior to taking the bar exam. In September, Disability Rights Advocates in Oakland filed suit against the state Committee of Bar Examiners, alleging it violated one lawyer's civil rights under the Americans with Disabilities Act by offering him one-and-a-half times the normal time to take the bar exam instead of twice the time.

The advocacy group is seeking class-action status for the case, which has generated a flurry of commentary on both sides. An opponent of the so-called "dumbing down" of the test says that everything in the law involves deadlines, and anyone who receives a law license is legally authorized to undertake any assignment. He asks how many supporters of accommodations for the learning disabled, if in need of cardiac or brain surgery, would allow it to be performed by a doctor who couldn?t pass his medical boards without extra time to do so.

Advocates counter that the number of college students with learning disabilities has leveled out at about two percent, and there are not huge numbers of people who are faking. Says one advocate: "The claim that all lawyers must be able to function under extreme time pressure is simply wrong. There are many areas of legal practice such as trusts, estate planning, tax law and appellate advocacy in which lawyers are not usually required to function under tight deadlines."

Yet a third group of lawyers has raised even more basic issues about whether the bar exam measures what it is supposed to. A sample comment: "The ability to sit in a folding chair at a cafeteria table in an exhibit hall for three days running and answer time-pressured questions designed to elicit false answers about textbook idealizations of the law is not closely related to the actual practice of law."

Rest assured there will be further debate on these matters. So if you like emotion-charged, divisive issues, 1998 is shaping up to be a pretty good year.