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Sexual Misconduct In Surgery: A Review Of Legal Cases
Kshipra Hemal, MD1, Breanna Jedrzejewski, MD MPH2, Jane Aiken, JD LLM3, Rachel Golden, JD3, Alexandra Meyer, JD3, Julie A. Freischlag, MD, FACS, FRCSEd(Hon), DFSVS4, Wendy Chen, MD MS5.
1Hansjörg Wyss Department of Plastic & Reconstructive Surgery, NYU Langone Hospital, New York, NY, USA, 2Oregon Health & Sciences University, Portland, OR, USA, 3Wake Forest School of Law, Winston Salem, NC, USA, 4Wake Forest School of Medicine, Winston Salem, NC, USA, 5University of Houston, Division of Plastic & Reconstructive Surgery, Houston, TX, USA.

Introduction: Medicine has the highest rate of sexual misconduct among scientific fields and it is surpassed only by the military.[1] Within surgery, sexual misconduct occurs at alarming rates, victimizing both patients and caregivers. Plastic surgery is one of five specialties most commonly accused of sexual misconduct along with dentists, psychiatrists, pediatricians, and gynecologists.[2] However, little is known about the perpetrators, survivors, and legal action involved. Methods: Using Westlaw, a database of publicly available federal and state court records, we randomly sampled 100 cases describing sexual misconduct in a clinical setting since 2009. Data on setting, specialty, survivors, perpetrators, and legal action were obtained. The perpetrator’s fate was determined by an internet search to determine whether they were still in practice, in jail, or barred from practicing. Results: One hundred cases of sexual assault occurred in a clinical setting: 47% in hospitals, 36% in private clinics, 7% in prisons, 6% in county clinics, and 4% in other. Thirty percent of perpetrators were surgeons or anesthesiologists, 47% were in non-surgical specialties such as medicine or pediatrics, 5% in emergency medicine, and 19% in other. Among the operative specialties, cardiothoracic, orthopedics, and obstetrics & gynecology were most commonly implicated, in 19% of cases each. General surgery and anesthesia were each implicated in 12% of cases. Plastic surgeons comprised 8% of allegations; neurosurgery, ophthalmology, and other comprised 4% each. In total, there were 394 survivors, ranging from one per perpetrator to as many as 103. Sixty-seven percent of survivors were patients; 6%, physicians; 23%, staff; and 4%, other. Perpetrators in surgery or anesthesia more often harassed coworkers such as other physicians, nurses, and physician assistants versus perpetrators in non-surgical specialties such as medicine and pediatrics (44% vs. 16%, p=0.04). The three most common injuries claimed in court were nonconsensual contact (25%), rape (13%), and sexual exploitation (13%). The court proceedings favored the perpetrator in 19% of cases, the survivor in 17%, and the remaining were mixed/pending. There was no difference in proceedings by specialty. In 11 cases, the survivor received a mean payout of $839,110. The perpetrator’s fate was clear in 47 cases: 51% are still practicing and 49% were reprimanded with a jail sentence or revocation of medical license. Perpetrators in surgery or anesthesia were more likely to be still practicing versus those in non-surgical specialties (75% vs. 36%, p = 0.02). Conclusion: Sexual misconduct remains a pervasive problem in surgery. Changes in policy and culture are needed to protect survivors and ensure a safe workplace for all.
[1] Freischlag JA, Files K. Sexual Misconduct in Academic Medicine. JAMA. 2020;323(15):1453. doi:10.1001/jama.2020.3344[2] The Incidence of Sexual Assault on Patients under Anesthesia or Sedation. Asaabstracts.com. Published 2020. Accessed March 4, 2021. http://www.asaabstracts.com/strands/asaabstracts/abstract.htm?year=2004&index=15&absnum=275


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