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Sexual Misconduct in Today's ORs
A special report on how to keep your staff and surgeons from crossing the line.
Dan O'Connor
Publish Date: October 10, 2007

Whatever the reasons, ORs appear to be breeding grounds for sexual harassment, according to several studies and our own online survey that found that 60 percent (90 of 150) of respondents, especially female nurses, have been victims of on-the-job sexual harassment at the hands and mouths of male surgeons. We're going to examine the reasons and discuss ways to keep you, your staff and your facility clear of sexual misconduct.

With vicious glee
It was a comment made in passing, perhaps even in jest, by a surgeon to a staff nurse. And it cut Maggie Johnson, RN, CNOR, like a knife. "I felt sick. Just sick," she was saying the other day, 10 years after an out-of-town surgeon made a remark that was clearly inappropriate and likely illegal - but hardly unusual.

It was a bitter cold day in Minneapolis. The surgical team had been talking about whether their cars would start at day's end. As the group filtered into the OR to start another case, the visiting surgeon backed Ms. Johnson, then a staff nurse, into a corner of the substerile area. "I'm sure my car would start if you went out there and sat on the hood," the surgeon said with vicious glee before joining the others in the OR. Shock and stun set in first, then disgust and disdain.

"What signals did I send out to invite this?" Ms. Johnson remembers thinking. "He never touched me, but he was physically intimidating. I felt powerless. Then I was angry. I stopped the general surgeon later that day and got in his face. 'Here's what happened. Don't ever let it happen again.'"

It hasn't happened again, not to Ms. Johnson anyway, who today would snap back at that surgeon with a "how dare you?" glare of righteous indignation. "Create an environment of mutual respect and zero tolerance for such behavior," says Ms. Johnson, now the director of the Center for Outpatient Surgery in Sartell, Minn. "Then it is each person's responsibility to speak up when there's questionable behavior going on."

You Be The Judge: Is This Sexual Harassment?

Sexual harassment law is rife with gray areas. We asked a panel of five to weigh in on these real-life scenarios.

Nancy Burden, RN, MSML, CPAN, CAPA
Trinity Surgery Center
New Port Richey, Fla.

Adam Dorin, MD, MBA
Medical Director
Grossmont Plaza Surgery Center
La Mesa, Calif.

Deb Leib, CASC
Susquehanna Valley Surgery Center
Harrisburg, Pa.

Paula Russo, RN
Same Day Surgery Center, LLC
St. Petersburg, Fla.

Gina Stancel, HCRM, CST, COA
SurgiCare Administrator
Eye Centers of Florida
Fort Myers, Fla.

A surgeon listens in the staff lounge and the OR to a radio show that features edgy sexual and ethnic humor. A staff member files a complaint.

First have a discussion with the physician. If the behavior continues, it's actionable.

Let's see if the surgeon continues with his behavior after he's been told it's offensive.

This is sufficient for management to formally tell the physician to stop or face consequences.

This falls within the bounds of temporary workplace display of sexually suggestive material.

There is no indication the staff member's complaint has been relayed to the offending surgeon.

A male surgeon repeatedly brushes against a female scrub nurse's body while in the OR. The nurse also complains that the surgeon constantly wears his scrub pants too loose and asks female OR staff to tie them.

Seek an agreement to stop the behavior. If it continues, refer the case to the medical executive committee.

I have seen this behavior countless times.

A complaint such as this isn't by itself sufficient information to determine if it's a case of sexual harassment.

This is unwelcome touching. According to facility policy, the behavior is sexual harassment.

We would present this surgeon with a formal complaint, and he must agree to stop the behavior.

A circulating nurse who admits to sometimes participating in raunchy OR banter complains that a CRNA made unwanted compliments to her and directed several crude references to the surgeon, a female, about how the nurse's physical appearance compared to that of the female patient.

Both the CRNA and and the nurse are guilty of sexual harassment. Counseling would be the fist step.

Some may chastise the complainant for fueling the behavior, but the CRNA is inappropriate in making sexual comments.

I would ask the nurse to refrain from participating, set an example and then counsel other offenders.

Comments such as these can interfere with work performance and even intimidate.

Provide counseling to both offenders. I say "both" because the nurse has admitted to the same behavior.

A nurse complains that she witnesses constant and seemingly consensual playful groping and off-color banter by other members of the OR team that continued after she informed the other parties.

This merits peer review for the medical staff involved, and counseling and education for the center staff.

The behavior would be stopped immediately, and the offenders would probably be dismissed.

This is actionable against the parties involved.

This creates an offensive work environment for those who have to observe this behavior.

We'd require all parties to attend a sexual harassment course. Continued offenses would result in termination.

In the course of a practice-related conversation, a surgeon who serves as a board member at the facility invites an employee out to dinner to discuss "upcoming opportunities" at the facility.

This could be very innocent. Even if it isn't, the employee can say no.

The scenario's set up for sexual harassment, but there's not information here to make that determination.

No indication that there is sexual harassment.

The surgeon presents a scenario offering an advantage for the employee over others.

Without direct evidence of quid pro quo, this is a case of bad judgment.

'Nobody will know, nobody will tell'
It's not so easy to prevent, deter or punish sexual harassment in the surgical workplace - despite what your facility's policy manual says or doesn't say. Here's why:

  • Bawdy behavior is so prevalent that one could argue it's part of the culture of surgery. Two-thirds (94 of 150) of our survey respondents agree that "sexual harassment is fairly commonplace in surgical facilities." The other one-third says, yes, it happens, but such incidents are rare.
  • Sexual misconduct will flourish in a permissive environment. Our survey found that surgery centers are just that: permissive. "Even though we have a zero-tolerance policy, both doctors and nurses continue to tell dirty jokes, use profanity and basically encourage the harassment," says Olivia Wescott, RN. For what it's worth, you can find a sexual harassment policy in the policy manuals of 97 percent (145 of 150) of our survey respondents.

"When (surgeons) get back in the OR, they think it's a place where nobody will know and nobody will tell," one facility manager told us.

"I have been in the OR for 40 years and can truly say that the off-color remarks, touching, shaking, clenched fists and verbal intimidation is worse now than ever," says a nurse manager. "Surgeon behavior is out of control and is affecting our being able to retain staff."

Some have theorized that the nature of the surgical environment is conducive to crossing the line of professional behavior, that a confluence of factors sexually charge the OR: male surgeons very clearly in a position of power over females, working long, high-stress hours in close physical proximity and with unconscious patients, their bodies exposed.

"Surgeons and staff members make sexual jokes or comments almost daily," says a survey respondent. "I think that the stress levels are higher in a surgical setting, and they feel this is an outlet for that stress."

"Some people see [sexual jokes] as a way to diffuse tension," says Robyn Yackell, RN, the surgery director of the Wagoner Community Hospital in Wagoner, Okla. "Patients are asleep. You're dealing with nakedness, and some compromising positions and situations throughout the procedures. Things like that make it more conducive."

Experts say that sexual harassment is almost always about power and control, sometimes about race and rarely about sex. "But more so," says Adam F. Dorin, MD, MBA, the medical director of the Grossmont Plaza Surgery Center in La Mesa, Calif., "it's a function of immature and predatory behavior by those in positions of power over those in need of attention."

Sexual Harassment in the Surgical Workplace Survey Results

Sexual harassment is fairly commonplace in surgical facilities.

True. It's equally or more common than in other workplace settings. 55%

True. But it's less common than in other workplace settings. 8%

It happens, but it's rare. 31%

I have been a victim of a surgeon or staff member's sexual misconduct.
True 60%
False 40%

Was the harassment _________ ?
Physical 4%
Verbal 46%
Both 45%

The nature of the surgical environment (working long, high-stress hours in close physical proximity) is conducive to producing unprofessional behavior.
True 61%
False 31%

SOURCE: Outpatient Surgery Reader Survey, January 2004, n=150

Elbows, knees and hands
Our survey found that sexual misconduct in today's ORs is as likely to be verbal (46 percent) as it is to be both verbal and physical (45 percent). It takes many shapes and forms, such as offensive body language, an unwanted compliment ("When I was pregnant, a surgeon made a comment to me in front of other team members that he enjoyed thinking about what I had to do to be in the state I was."), conversation laced with suggestive remarks and sexual innuendos ("A doctor asked me if I knew how much the color of my hair turned him on and that he would love to see me naked in my hair color."), courting behavior that turns hostile ("After I turned the married physician down, he kept asking and suggested that I would go out with him if I were straight, so I must be gay."), off-color remarks and the oh-so-sly use of elbows, knees and hands to brush up against breasts, buttocks and crotches.

Our survey revealed all that and more. We received 87 detailed descriptions of incidents of sexual harassment. Some examples:

  • Kneed during a hand procedure. In a suburban hospital, a brilliant, handsome, married hand surgeon would preach Christianity to nurses while he slowly worked his knee between their thighs during cases. "This kneeing was common knowledge among the nurses," says Richard Mattison, MD, once a colleague of the hand surgeon. "If they (confronted him), he would profusely apologize and swear he'd never do it again."
  • While tying up a scrub nurse. In a freestanding surgery center, the ENT surgeon always made sure he was in the OR when the scrub nurse came in the room from scrubbing. When her gown needed to be tied up in the back, he would reach in, feeling for the ties of the gown and would often end up brushing across her breasts. This same surgeon often would wear his scrub pants too loose and during the procedure after he was scrubbed, gowned and gloved, he would ask the circulator to pull up his pants and tighten the strings.
  • If you had to do it over again. In a hospital-based surgery center, the surgeon was polling the OR team: "If you could change something about your life, what would you change?" When he got to the 60-year-old LPN scrub tech, he injected the answer himself: "I know what you would do. You would spread your legs more." The incident was reported and investigated, and the surgeon reprimanded. He hasn't been back to the facility since.

Is the law on your side?
Lutheran Medical Center fired physician Conrado Ponio, MD, shortly after several nurses filed a sexual harassment complaint against him, according to a release from the U.S. Equal Employment Opportunity Commission and published reports. That didn't stop the victims from filing a lawsuit against the Brooklyn hospital that it settled for a record $5.5 million. The reason? The hospital administration knew - or had reason to suspect - that Dr. Ponio may have been sexually harassing female employees as early as 1996, but failed to take action until nurses formally complained in 2000. The hospital lacked established mechanisms for preventing such incidents, say the reports.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment in the workplace has a two-fold legal definition, says Deborah Krohn, Esq., RN, of Towson, Md., a nurse-attorney and a partner in the law firm of Siegel & Krohn, PC.

  • Quid pro quo harassment. This is unwanted sexual conduct in which the victim's compliance is either explicitly or implicitly made a condition of the victim's employment or advancement at the facility. In the Lutheran Medical Case, Dr. Ponio performed mandatory pre-employment physical examinations. Lawsuits allege that Dr. Ponio took advantage of this responsibility by inappropriately touching the examinees and asking embarrassing sexual questions that had no relevance to the examination. He allegedly threatened to deny or delay their employment at the hospital if they did not cooperate. Such threats are an example of quid pro quo harassment.
  • Hostile-environment harassment. This is a more vague category, involving unwelcome sexual behaviors that create an intimidating, hostile or offensive work environment for employees. Examples include physical acts (such as the alleged fondling and invasive touching in the Lutheran case), verbal acts (inappropriate questions, jokes, comments) and inappropriate written and visual materials in the workplace. Harassment defendants often claim that the victims never expressed sensitivity to these situations. Such defenses typically fail, even if the victim actively participated in some of the same workplace behaviors, such as trading dirty jokes.

Be aware, says Ms. Krohn, that the facility is responsible for providing a secure environment for its employees even if the guilty party isn't a facility employee or surgeon. There is precedent for employers losing cases for failing to terminate relationships with outside parties harassing staff members. In the surgical workplace, this may include patients or company reps.

Your sexual harassment policy should also spell out the formal procedures for reporting, investigating and enforcing complaints. If possible, identify the specific people involved in the process, suggests Ms. Krohn.

Your facility is not obligated to actively police the workplace for undetected harassment, but you must act to stop the behavior once it is observed or suspected. That is why Lutheran Medical had to settle the lucrative suit filed against the hospital, says Ms. Krohn.

Often, administrators dismiss complaints because they either believe the complainant is overreacting to a situation or because she hasn't attempted first to resolve the complaint with the alleged harasser, says Ms. Krohn. But it's incorrect to think that someone offended by certain behavior must confront the perpetrator to mount a viable legal complaint. The offended worker need only tell a supervisor or manager. You're still responsible for investigating the incident and taking proper corrective actions.

Empowerment: What can you do?
"A surgeon grabbed me while I was scrubbing for a case from behind and made offensive remarks," says an RN. "He then requested I not be in his room because I reported him." Punishing the victim who reports sexual harassment may be the worst thing you can do, experts say.

So how do you prevent and punish sexual misconduct by physicians - without fear of retaliation or retribution? "Stop it when it starts," says one respondent. "Education, accountability and real consequences," says another. "Document, counsel, terminate," says a third. You could divide the 111 responses we received to this question into three schools of thought:

  • Stand up for yourself. "Inform the individual you are offended by the remarks and request that they cease immediately," says one. "The harasser needs to know right away it is not acceptable," says another.
  • Have a clear-cut policy with teeth. You must write a strong sexual harassment policy and enforce it. "When the behavior is not tolerated by those physicians who make policy, the message is loud and clear," says one respondent. And it must have consequences, disciplinary action that will deter would-be offenders, such as termination or suspension of privileges. "Have a clear-cut policy for all employees that such conduct will not be tolerated and can lead to immediate dismissal," says another.
  • Learn to live with it. A cynical faction feels no matter what you do, boys will be boys - especially if the offending surgeons own the facility. Says one: "You can't prevent it. It happens. All you can do is provide clear-cut guidelines and set up realistic punishments for all actions that fall into those categories." Another sounds a grim alarm: "Regardless of the type and amount of training, sexual harassment will be part of the industry."