Care but don’t touch: Being wise in the modern era

The medicine I practiced between 1974 to 1992 is gone. Evidence is the coin of the realm in the courts of modern medicine. The rule “first, do no harm” demands a corollary — be paranoid.

We receive extensive training and licensure to “touch” patients. Any person who is not a physician who cuts into another person commits a very serious crime. The same is true for merely talking with a person, whether or not a patient, as a physician. Physicians, with words, go where no others are permitted to go.

Here is the legal yardstick: Conduct that benefits the patient and is necessary is “within” bounds. Conduct that benefits the physician and does not advance patient care is “out of bounds.” The fact that there were no money charges is immaterial. The physician-patient relationship is sacrosanct, boxed by this rule: patient benefit.

In contrast to non-medical relationships, physicians owe a legally cognizable fiduciary duty towards patients: trust. And physicians exert power and control with patients. Patients are vulnerable. To show affection that does not advance patient care may create a serious problem.

Idle, “smart-aleck,” facetious, poor taste puns and jokes, innocent as uttered — look out. Do not tell patients off-color stories or jokes or personal intimate stories.

Edward Berk, MD, at the University of California, Irvine, was a great physical diagnosis and medical arts teacher. “Wash your hands with soap in front of your patient in warm water. Touch every patient. Shake a hand, pat a palm, examine gently and make sure the patient knows that you care. Hug patients as necessary.”

In 1969, Dr. Berk’s advice was sagacious … but not now. The handwashing is great. Do that, but the touching is a bit more delicate these days. In general, no hugging. Emotional reassurance can be done with words.

Does affection confuse the relationship? Ultimately, one never knows how a patient will “take” affection. How do we “care” for patients in this modern, highly regulated, and, frankly, contentious and litigious era? Is this the era of “do not touch?” Are patients like museum pieces — for display and analysis only? Seems cold, but consider the risks to you, the physician.

I have defended and prosecuted health care professionals. What are the bright lines not to cross? The heart of the physician-patient relationship remains “primum non nocere.” The patient comes first, and anything a physician does must move in that direction. Clearly, Larry Nassar, convicted of sexual abuse of Olympic athletes, went too far. From media reports, he exceeded accepted boundaries. But “is it wrong to hug a patient?” doctors ask me. “They like it when I hug them.”

If there is a bright line, this may be it. Is hugging related to care? Does the touching relate in some rational way to care? Full-on mouth kisses: no. Cheek peck? French style polite? I’d avoid it. Unnecessary digital penetrations, no. Any touching which exceeds that which is necessary for medical care is wrong. Chaperones or nurse assistants are highly recommended. Chaperones with children? 100 percent — yes. In your chart, note who attends examinations: nurse, ancillary medical personnel, parent, friend, spouse or partner.

Dating a patient? Really? And what about “talking” with patients? I have seen doctors get into trouble when they went “off script” and “off topic.” You know, getting personal, illustrations using personal intimate vignettes, in a conversation that was not related to the clinical issues. Kids and family topics are OK — but not intimate personal and spouse matters or money. These are the “third rail,” electrically high voltage topics. Juries wince when they hear about this. It looks terrible in a deposition and in court!

Can you invite patients to social events? Can you attend patient social events by invitation? Weddings, funerals, important religious celebrations, 100th birthdays are probably OK. Oh, and bring your spouse or someone else … but nothing in a dimly lighted hotel room after too many martinis.

Also, consider that in small towns, like where I live, population 1,500, the behavior but not the rules may differ from Chicago. In a small town, the doctor is a “really big deal” and non-attendance may set off gossip. In general: arrive punctually, conspicuously, and leave early. Do not dance the last dance, and avoid alcohol. No flirting.

Electronic media is very dangerous. Cell phone footage is problematic. If your institution has an internal secure pathway, use only that. Do not communicate patient data on personal platforms or applications. Do not text other than as necessary: time, place, phone number. No extended texts… clinical photos? Be careful. Sexting? Really? If your patient is your bicycle mechanic, patient information should be on the formal platform; bicycle communications on personal platforms.

From my consultations in many boundary cases, a truth emerges. Any legal analysis — hospital, licensure, civil, criminal — will be linked to the “best interests of the patient.” Maintain a rigid separation between medical and social.

Finally, keep this in mind. You never know how a patient will interpret what you say. Careful about recommending books and movies: even vacation venues. A seemingly innocent comment, to the speaker, may have unintended consequences. Circumspection and caution are important. Vacation pictures with a depiction of social conduct: avoid.

If you would be hesitant to explain the episode to colleagues or to lawyers, or you are hesitant to write the exact details in your chart, don’t do it. Always consider how conduct will spin on the front page of the New York Times or on CNN or Fox, and hope that you never land there.

Elliott Oppenheim is a heath care attorney and author of The Medical Record as Evidence.

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