Section 64B8-9.008 - Sexual Misconduct(1) Sexual contact with a patient is sexual misconduct and is a violation of Sections 458.329 and 458.331(1)(j), F.S.(2) For purposes of this rule, sexual misconduct between a physician and a patient includes, but it is not limited to:(a) Sexual behavior or involvement with a patient including verbal or physical behavior which: 1. May reasonably be interpreted as romantic involvement with a patient regardless of whether such involvement occurs in the professional setting or outside of it,2. May reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party, or3. May reasonably be interpreted by the patient as being sexual.(b) Sexual behavior or involvement with a patient not actively receiving treatment from the physician, including verbal or physical behavior or involvement which meets any one or more of the criteria in paragraph (2)(a), above, and which:1. Results from the use or exploitation of trust, knowledge, influence or emotions derived from the professional relationship,2. Misuses privileged information or access to privileged information to meet the physician's personal or sexual needs, or3. Is an abuse or reasonably appears to be an abuse of authority or power.(3) Sexual behavior or involvement with a patient excludes verbal or physical behavior that is required for medically recognized diagnostic or treatment purposes when such behavior is performed in a manner that meets the standard of care appropriate to the diagnostic or treatment situation.(4) The determination of when a person is a patient for purposes of this rule is made on a case by case basis with consideration given to the nature, extent, and context of the professional relationship between the physician and the person. The fact that a person is not actively receiving treatment or professional services from a physician is not determinative of this issue. A person is presumed to remain a patient until the patient physician-relationship is terminated.(5) The mere passage of time since the patient's last visit to the physician is not solely determinative of whether or not the physician-patient relationship has been terminated. Some of the factors considered by the Board in determining whether the physician-patient relationship has terminated include, but are not limited to, the following:(a) Formal termination procedures;(b) Transfer of the patient's case to another physician;(c) The length of time that has passed since the patient's last visit to the physician;(d) The length of the professional relationship;(e) The extent to which the patient has confided personal or private information to the physician;(f) The nature of the patient's medical problem; and,(g) The degree of emotional dependence that the patient has on the physician.(6) Sexual conduct between a physician and a former patient after termination of the physician-patient relationship will constitute a violation of the Medical Practice Act if the sexual contact is a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.(7) A patient's consent to, initiation of, or participation in sexual behavior or involvement with a physician does not change the nature of the conduct nor lift the statutory prohibition.(8) In some situations, a physician's sexual contact with a patient may be the result of a mental condition which may render the physician unable to practice medicine with reasonable skill and safety to patients pursuant to Section 458.331(1)(s), F.S.(9) Upon a finding that a physician has committed unprofessional conduct by engaging in sexual misconduct, the Board will impose such discipline as the Board deems necessary to protect the public. The sanctions available to the Board are set forth in Rule 64B8-8.001, F.A.C., and include restriction or limitation of the physician's practice, revocation or suspension of the physician's license.Fla. Admin. Code Ann. R. 64B8-9.008
Rulemaking Authority 458.309, 458.331(5) FS. Law Implemented 458.329, 458.331(1)(j), (s), (v) FS.
New 5-9-94, Formerly 61F6-27.0075, Amended 5-29-97, Formerly 59R-9.008.New 5-9-94, Formerly 61F6-27.0075, Amended 5-29-97, Formerly 59R-9.008.