American Journal of Law & Medicine

Expert psychiatric evidence in sexual misconduct cases before state medical boards.

admissibility of expert testimony in physician sexual misconduct cases, and calls upon states to establish clear evidentiary rules of govern the use of such testimony in administrative hearings.


Anita Hill's allegations in the confirmation hearings of U.S. Supreme Court Justice Clarence Thomas[1] riveted the nation's attention on an issue that has long bewildered state medical boards. Into the hearing room come two persons: one, a respected member of the community with professional credentials, a consistent history of service to the public and character witnesses testifying to an unblemished record; the other, an isolated complainant with a rattling allegation of sexual misconduct, perhaps from the distant past. In the Senate Judiciary Committee hearing room, the accused was a respected lawyer and jurist.[2] In medical board hearing room, the accused is typically a respected physician.

In the Thomas hearings, acting out of a variety of motivations, the senators turned to psychiatry "to guide strategy and, in some cases, provide ammunition for their arguments."[3] Similarly, medical licensure boards, in recent years, have increasingly admitted into the record psychiatric evidence to assist them in making some of the most difficult credibility decisions such boards ever face. Some of the senators in the Thomas hearings, like medical board members, were frustrated by the plausibility of two diametrically opposed stories, and sought a psychiatric explanation as the "golden thread" that could weave together the ill-fitting pieces. Other senators, more like medical board prosecutors, turned to psychiatry to explain the accuser's seemingly irrational behavior (such as waiting several years before reporting the offensive conduct). Still other senators were more analogous to the physician defenders and looked to psychiatry for ammunition in attempts, at best, to explain the testimony through psychopathology or, at worst, to engage in character assassination.

This Article examines the use of psychiatric evidence in medical licensure board sexual misconduct cases. Its focus is not on the courtroom, but instead on the administrative hearing context. Parts II and III introduce the problem of physician sexual misconduct generally, and the important role medical boards can play in dealing with this public health problem. Recognizing a trend in many states towards relying on expert psychiatric evidence to determine credibility in sexual misconduct cases, Part IV discusses the evidentiary environment for such testimony in administrative hearings. Part V then summarizes the results of a survey sent to state medical boards inquiring into their experiences with the use of psychiatric evidence. Part VI examines lessons that state medical boards can learn from the criminal context, where similar psychiatric evidence is frequently used. The final section concludes with a discussion of the unique problems and considerations relevant to the use of psychiatric evidence in the administrative context.

The discussion that follows is timely as society increasingly accepts sexual harrassment and misconduct as a legitimate ground for complaint in the workplace and in other situations in which the alleged aggressor has abused a power or trust relationship.[4] As we offer new forums in which to air these grievances, fact-finders are left to struggle with difficult credibility determinations. Psychiatry has a role to play, but, as this Article will demonstrate, the challenge is to craft the appropriate role.


Sexual relations with a patient is now recognized as one of the most egregious offenses that a physician or other health professional[5] can commit. It is condemned by the Hippocratic Oath,[6] the American Medical Association,[7] and state agencies that license and discipline physicians.[8] Thus, it is almost universally thought that a "therapist's sex with a patient is malpractice per se. The 'respectable minority' which approved it has either lost its respectability or retired from the field,"[9]

There is less agreement on what behavior actually constitutes "sexual misconduct." For example, opinions vary widely over whether a physician may initiate an intimate relationship after the physician-patient relationship has terminated. Even among those who believe such relationships are proper, there is disagreement over the length of time that should elapse between the end of the professional relationship and the beginning of the personal relationship. Ninety-eight percent of those who responded to a survey of psychiatrists felt that therapist-patient sexual contact is always inappropriate.[10] When asked in the same survey whether sexual contact after termination of therapy "could sometimes be appropriate," only 29.6% of those responding said yes.[11] Psychiatrists are advised by their own expert in liability prevention that "the only infallible approach to liability prevention in this unclear area" is never to date a former patient.[12] Once the issue shifts from avoiding liability to avoiding patient (or more precisely, former patient) harm, however, no one has yet ventured forth with a similar bright-line rule.[13]

Yet, empirical data raise serious concerns regarding the prevalence of sexual misconduct, and indicate a need for an appropriate regulatory response. A widely reported 1984-85 survey of psychiatrists showed that 7.1% of the 1057 male and 3.1% of the 257 female respondents admitted having some degree of sexual contact with their patients.[14] Moreover, this particular survey is an excellent example of what biostatisticians call nonresponse as a source of bias.[15] According to the experts, "[i]t...seems probable that there were psychiatrists who did in fact have sexual contact with a patient and subsequently refused to return the survey. Therefore, it is more than likely that the percentages calculated from the survey data underestimate the true population proportions...."[16]


Many critics contend that state medical licensure boards lack the ability either to improve the quality of medical care or to maintain high ethical standards in the medical profession.[17] At times, their reputation for handling sexual abuse cases "inconsistently" has been singled out for particularly strong criticism.[18] Various theories, including inadequate funding, outdated medical practice acts, and the organized profession's dominance of medical boards, have been posited to account for what is widely perceived as an unsatisfactory system of professional discipline.[19] At the same time, licensure boards seem acutely aware of the extent of sexual misconduct in the practice of medicine, as well as the need for corrective action. Indicative of this awareness is the fact that, for four years, "sexual misconduct" has been an agenda item at every annual meeting of the Federation of State Medical Boards of the United States.[20]

State medical boards must take the lead in dealing with this public health problem. Commentators have noted that while "administrative statutes are no panacea, they form one of the quickest, most effective means of dealing with psychotherapist misconduct."[21] Moreover, it is often the case that a victim of physician sexual misconduct is so damaged by the offense that it takes years to understand fully what has happened and to file a complaint.[22] Because the statute of limitations for filing a civil suit might have long since passed, the state medical board, which typically operates without a statute of limitations,[23] may be the only forum for redressing a grievance and for protecting the public from future harm. Indeed, safeguarding patients from future harm may be the most important function of the licensure boards. Experts stress that physician sexual misconduct is rarely limited to one isolated event, but instead tends to become chronic over time.[24]

Yet, while a variety of cases are brought before state medical boards, sexual misconduct cases are uniquely difficult because of special credibility problems that are encountered far less frequently in other contexts. In sexual misconduct cases, it is not uncommon for boards to render their decisions while avoiding the precise credibility findings typically found in other cases. For example, the State Board of Medical Examiners of South Carolina described a sexual misconduct case before it as simply "a classic one-on-one situation."[25] It then made a finding of physician misconduct without ever determining whether the misconduct included sexual contact.[26] Similarly, the Massachusetts Supreme Judicial Court recently criticized the failure of the Commonwealth's Board of Registration in Medicine to make explicit findings regarding the patient's specific claims as a case in which the board found only that the defendant had "exploited the patient sexually."[27]

A Missouri case, Welty v. State Board of Chiropractic Examiners,[28] illustrates how the frustrating search for truth in a sexual misconduct case can devolve into a search for a "magic bullet" that will resolve all the conflicts. In Welty, the Missouri Court of Appeals noted with "grave displeasure" that the state's Administrative Hearing Commission (AHC) turned to polygraph evidence to help decide credibility.[29] The AHC found that cause existed under Missouri law to censure the practitioner, place him on probation, or suspend or revoke his license.[30] Since there was other evidence in medical board sexual misconduct the court upheld its findings, even though it was unsure what weight the tainted evidence had received in the administrative hearing process.[31]

The remainder of this Article focuses on a different "magic bullet" -- the increasing use of psychiatric evidence in medical board sexual misconduct hearings. As medical boards begin to consider such evidence, it becomes essential to examine the lessons learned from its use in other contexts. Furthermore, there are special considerations relevant to the use of psychiatric evidence in the administrative context, as opposed to the criminal context, where its use has been more prevalent. Before addressing those considerations, however, it is first necessary to sketch the unique evidentiary environment of administrative proceedings.



Rigid evidentiary rules are followed in state and federal courtroom practice. In sharp contrast, federal practice under the Administrative Procedure Act[32] ("APA") and state medical licensure board practice under the various state administrative procedure acts[33] provide for the generous admission of evidence.

Under federal administrative practice, "[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitive evidence."[34] Administrative law expert Kenneth Davis has explored the policy behind a generous admissibility rule, in comparison to jury trials or even bench trials.[35] According to Davis, the Senate committee considering the draft APA stated that "an administrative hearing is to be compared with an equity proceeding in the courts. The mere admission of evidence is not to be taken as prejudicial error (there being no lay jury to be protected from improper influence) ...."[36] Moreover, the U.S. Court of Appeals for the Fourth Circuit has stated that:

In a nonjury trial, whether in the district court or before an administrative law judge, little harm can result from the reception of evidence that could perhaps be excluded. This is so because the judge presumably competent to screen out and disregard what he thinks he should not have heard, or to discount it for practical and sensible reasons....

....It has long been setteled that an appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment....

....Thus, we strongly advise administrative law judges: if in doubt, let it in.[37]

Similarly, like other administrative agencies on the state level, medical licensure boards are generally not required to follow strict rules of evidence in disciplinary proceedings.[38] The admissibility criterion in Massachusetts is typical. It provides for the admission of "evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs."[39]

Thus, other than inconvenience, confusion and delay that might result from allowing repetitive or irrelevant evidence, administrative agencies run little risk in admitting evidence into the record. They must still respect evidedentiary privileges,[40] however, and the risk that an agency will be reversed ultimately remains a function of whether it has based its findings on unreliabile evidence.


Expert evidence in administrative proceedings is treated as generously as other types of evidence, if not more so, by agencies and courts. One of the foundations of administrative law is the legislature's delegation of authority to specialized agencies with expertise in their respective fields.[41] Consequently, the general rule is that administrative agencies have "wide discretion in determining the weight or probative value to be given the testimony of the expert witness, and may substitute their own expert opinion."[42] The United States Supreme Court has recognized the inherent value of according specialized boards the freedom to draw inferences and to bring their experience and common sense to bear on evidentiary facts in matters" 'entrusted to their administration.'"[43]

In addition, once an administrative agency admits expert evidence into the record, the general rule is that the agency has wide latitude in determining the weight accorded to it.[44] The Supreme Court has held that, even if uncontradicted, expert evidence need not be given "conclusive force" by the agency.[45] That does not mean, however, "that an agency may arbitrarily dismiss the opinion of an expert and substitute its own unsubstantiated opinion."[46] Agency decisions must be supported by "substantial evidence" on the record,[47] a test that gives a reviewing court the role of "assaying" evidence for sufficiency "using an abstract criterion framed by law rather than expertise."[48] In the words of the Massachusetts Supreme Judicial Court: "While the Board is free to evaluate evidence in light of its expertise, it cannot use its expertise as a substitute for evidence in the record."[49]

In a recent case involving allegations of sexual abuse by a psychiatrist, the Massachusetts Supreme Judicial Court criticized the Commonwealth's Board of Registration in Medicine for overrelying on its "expertise."[50] In reviewing the evidence on which an administrative magistrate had based her decision to absolve the psychiatrist, the board stated that it could detect "red flags" that, in its experience, were evidence of sexual abuse[51] (such as other "boundary violations" in the patient-therapist relationship). The court found objectionable the board's failure to specify sufficiently the significance of such "red flags," questioning whether there was "some method known to medical science for determining whether sexual misconduct has occurred in particular circumstances...."[52] If there were such a method, it needed to be disclosed in the administrative record, "presumably in the form of an expert opinion."[53]

Clearly, the use of expert psychiatric evidence in administrative hearings to determine credibility is more complex than the generous evidentiary rules of administrative proceedings might first suggest. A medical board cannot simply issue a decision that reminds a reviewing court of its "expertise in the field" without a disciplined understanding of the "substantial evidence" upon which the board has relied. For example, in a case noted above, the court criticized the Missouri Board of Chiropractic Examiners for its decision to rely on a polygraph examination to "assay" whether or not one of its licensees had engaged in sexual misconduct.[54] While the laws of evidence in administrative practices are generous, it is nonetheless critical that a medical board substantiate its expertise, and the expertise of witnesses, with reliable evidence in the record. …

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