June 8, 2018

New Michigan Legislation: Sexual Assault Prevention and Health Professionals

At the end of May, 2018, equally significant legislation strengthening Michigan laws to protect patients from sexual assault was adopted by the Michigan House. This legislation is expected to be adopted by the Senate and enacted as law in June, 2018. The legislation becomes effective 90 days after enactment. The following is a summary of the key provisions, as adopted by the House, affecting physicians and other health professionals. After the legislation becomes effective, physicians should look for updates from their professional associations to determine whether any changes were subsequently adopted to the legislation, and whether any new or different protocols should be incorporated into their medical practices.

Senate Bill 871. This legislation extends the criminal statute of limitations for second and third degree criminal sexual conduct involving a minor to 15 years after the offense is committed or the victim’s 28th birthday, whichever is later. The criminal statute of limitations for second and third degree criminal sexual conduct offenses against adult victims, and the period for fourth degree criminal sexual conduct offenses against adults and minors, remains unchanged; i.e., 10 years after the offense is committed or the victim’s 21st birthday, whichever is later. An exception which permits tolling of the statute of limitations, based on DNA evidence from unidentified individuals, remains in place for adults and now applies to offenses for second and third degree criminal sexual conduct committed against minors. There continues to be no statute of limitations for first degree criminal sexual conduct offenses committed against adults or minors; i.e., an individual can be charged with first degree criminal sexual conduct at any time after the offense is committed.

Senate Bill 872. This legislation extends the periods under the civil statute of limitations for lawsuits to recover damages because of criminal sexual conduct. The legislation incorporates the definition of “criminal sexual conduct” from the Michigan Penal Code. For victims who are adults when the offense is committed, the civil period of limitations is extended from 2 years (i.e., the existing period for assault and battery claims generally) to 10 years (i.e., the new period for claims for criminal sexual conduct). The period of limitations begins to run after the claim first accrues. It is not necessary that a criminal prosecution has been brought or that any prosecution resulted in a conviction. There is no extended discovery period, which will now be available to victims who are minors as described below. The existing 5-year period of limitations for assault and battery claims involving spouses or individuals in dating relationships remains unchanged, but is extended to 10 years for claims for criminal sexual conduct. Claims for assault and battery not involving criminal sexual conduct or spousal/dating relationships remain subject to the 2-year period of limitations. Subject to the changes made by the legislation, the existing 3-year period of limitations continues to apply to claims for death or injury to persons or property when no other period of limitations is specified by law.

Before Senate Bill 872, victims who were minors when sexually assaulted had 2 years or until their 19th birthday, whichever was later, to bring suit. Senate Bill 872 provides that victims who are minors when sexually assaulted may file suit by the latest of (i) the victim’s 28th birthday or (ii) 3 years after the victim discovers, or through the exercise of reasonable diligence should have discovered, both the injury and the causal relationship between the injury and the criminal sexual conduct. The 3-year discovery period runs indefinitely; there is no statute of repose that cuts off the time to file suit under the discovery standard. As with claims by adult victims, it is not necessary for claims by minors that a criminal prosecution was brought or that any prosecution brought resulted in a conviction.

Senate Bill 872 has limited retroactive effect. It provides that an individual who, while a minor, was the victim of criminal sexual conduct after December 31, 1996, but before 2 years before the legislation’s effective date, may file suit within 90 days after the legislation’s effective date, if the person alleged to have committed the criminal sexual conduct was convicted of first degree criminal sexual conduct against any person and admitted that (i) he or she was in a position of authority over the victim as the victim’s physician and used that authority to coerce the victim to submit, or (ii) the defendant engaged in purported medical treatment or examination of the victim in a manner that is, or for purposes that are, medically recognized as unethical or unacceptable. Claims that meet the preceding qualifications that are not filed within the 90-day period will be time-barred by the statute of limitations. Retroactivity is not available to victims who were adults when sexually assaulted.

For physicians and other health professionals, Senate Bill 872 as adopted by the House is a significant improvement over the legislation introduced in the Senate in February, 2018 and as adopted with modifications by the Senate in March, 2018. The legislation, as introduced in the Senate, provided that victims who were minors could bring claims until they reached age 48, an extension of 29 years from the existing standard. Also, retroactivity would have extended to claims accruing after December 31, 1992, although the version adopted by the Senate in March changed this to December 31, 1996. The retroactivity provisions in Senate Bill 872 as introduced and adopted by the Senate in March were not subject to the requirements of a conviction for first degree criminal sexual conduct and the other limitations adopted by the House in May, 2018. The retroactivity provisions in the legislation adopted by the Senate in March caused concern for physicians and other health professionals. For example, physicians who are now retired may no longer have access to clinical records that could document valid informed consent, the legitimacy of a medical procedure, and the presence of a chaperone during the encounter.

It remains to be seen how Senate Bill 872, in practical terms, will affect the practice of the health professions in Michigan. Some speculate that Senate Bill 872 may cause physicians and other health professionals who treat minors to begin maintaining clinical records indefinitely, due to the discovery standard. Michigan’s minimum required retention period for medical records is generally 7 years from the date of service, unless a longer period is required by federal law or other state law (e.g., see House Bills 5783 and 5793, below).

House Bills 5787-5790. These bills substantially bolster existing law by prohibiting a person furnishing medical treatment from engaging in sexual contact or sexual penetration with the patient by means of misrepresenting that contact or penetration is necessary or beneficial to the patient’s health. A violation of the legislation is a felony. The legislation places the maximum terms of imprisonment for felony offenses within the sentencing guidelines chapter of the Code of Criminal Procedure. The legislation includes a conviction for sexual contact or sexual penetration under the pretext of medical treatment to be included in the list of grounds requiring licensing sanctions against a person licensed or registered under the Public Health Code. The legislation provides that a health professional’s license or registration will be permanently revoked for a violation involving sexual contact or sexual penetration under the pretext of medical treatment.

House Bills 5783 and 5793. These bills require performance of medical encounters involving vaginal or anal penetration to be documented in a patient’s medical records, including records maintained by health facilities or agencies. These records will need to be maintained for at least 15 years. The legislation establishes administrative and criminal penalties for noncompliance with the documentation requirements. The Michigan licensing boards for physicians, chiropractors, physical therapists and athletic trainers will be required to develop a document providing guidance on generally accepted standards of practice for certain services involving vaginal or anal penetration. The document will need to be publicly available.

The legislation will require written parental consent before procedures involving vaginal or anal penetration may be performed on a minor. Such procedures must be within the scope of practice of the treating health professional. A medical assistant or another licensee or registered health professional must be in the room during the encounter. Exceptions are provided for treatment (i) necessary and associated with, or incident to, a medical emergency (i.e., a circumstance that in the licensee’s or registrant’s good-faith medical judgment creates an immediate threat of serious risk to the life or physical health of the patient), (ii) if primarily related to the patient’s urological, gastrointestinal, reproductive, gynecological, or sexual health, (iii) if performed at a children’s advocacy center, as defined in Michigan’s Child Protection Law, (iv) if performed for purposes of a sexual assault medical forensic examination under Section 21527 of the Public Health Code, (v) if performed for the purpose of measuring the patient’s temperature, and (vi) if performed for the purpose of rectally administering a drug or medicine. Criminal penalties and fines are provided for violations of the legislation. The Department of Licensing and Regulatory Affairs is required to create a standardized consent form for use by licensed and registered health professionals.

House Bill 5659. This legislation adds physical therapists, physical therapist assistants, and athletic trainers to the list of individuals required to report suspected child abuse or neglect. Under existing law, physicians, dentists, physician’s assistants, nurses, and certain other licensed professionals and individuals who have reasonable cause to suspect child abuse or child neglect are required to make a report to the Department of Health and Human Services’ centralized processing center.

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