25 Investigates: Doctors accused of sexual assault shielded by legal loophole

BOSTON — Boston 25 Investigates has found criminal cases against doctors accused of sexual assault aren't moving forward.

Critics say doctors are shielded by a loophole in Massachusetts law.

Middlesex County District Attorney Marian Ryan says that's why she's pushing for changes on Beacon Hill. But some say that push for change doesn't go far enough.

When doctors are accused of sexually assaulting their patients, justice can be an uphill battle.

“It is frustrating for us. It is even more frustrating for those who know something has happened to them. They come to us because they say they've been violated and then we have to tell them we cannot ethically go forward," said District Attorney Marian Ryan.

Ryan says the loophole surrounds the word 'consent,' even when doctors are accused of violating a patient’s trust.

"In these cases, the argument has been that people consent to that touching...they consent because they believe it to be part of the medical process,” Ryan said referring to case law.

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Boston 25 Investigates first told you about allegations of misconduct against Dr. James DeVellis in 2016. DeVellis was a prominent orthopedic surgeon and member of a Woburn practice called Excel Orthopedic Specialists.

Since then, we obtained those complaints involving minors compiled by the Board of Registration in Medicine:

1. A patient reported he went to see DeVellis for a shoulder issue. The young man said DeVellis asked him to remove his underwear and proceeded to fondle his genital area. When he went for surgery the following year, he says the doctor removed his underwear and fondled him again.
2. In another report, a mother stated in an interview, her son, 17, reported feeling uncomfortable during a physical exam because DeVellis brought him into a separate room alone away from his parent.
3. Another teenaged boy reported DeVellis asked him to be completely nude during physical exams.

DeVellis voluntarily, though permanently, resigned his license to practice medicine in Massachusetts and the United States in December 2016 -- the day before the allegations would have been made public during a hearing with the medical board.

He never faced any criminal charges.

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DeVellis's attorney said he declined to go on camera. But attorney Paul Cirel emailed the following statement:

‘Dr. James DeVellis is aware of certain allegations that were made to the Board of Registration in Medicine by two individuals, who apparently know one another and conferred when making their complaints. has and continues to categorically deny these and any other allegations and unequivocally disputes their veracity. To be clear, Dr. DeVellis has never engaged in any improper conduct in his long and successful career in medicine. Although the Board never provided any complaints to Dr. DeVellis, Dr. DeVellis cooperated with the Board, and no charges were ever brought. Dr. DeVellis chose to resign from the practice of medicine due to family issues and to pursue unrelated business interests, rather than engage in a protracted and disruptive litigation. He has never been adjudicated of any wrongdoing whatsoever.’

His isn't the only case to never reach a court of law.

Attorney Tyler Fox represents two women who say they were victims of Doctor Roger Hardy, a longtime fertility specialist at the New England Fertility Center.

“My client was distraught because she's not going to be able to get justice in this way,” Fox told Kavanaugh.

Fox says the loophole in the law was the reason he was given for why the Middlesex District Attorney didn't pursue a criminal case against Hardy.

"I don't think the district attorney's office wanted to take a chance on losing the case,” he said. "It should have gone to a jury. Let the jury decide.”

But Marian Ryan says unless legislative changes are made, doctors will continue to be shielded by the law.

She teamed up with State Representative Kate Hogan of Stowe to draft legislation 'criminalizing sexual assault by fraud by a medical professional.'

"We are one of, I think, 10 states that isn't clear about consent through fraud. It's a loophole, but also a very big loophole,” Hogan told Boston 25.

The legislation reads in part:

".... who commits an indecent assault and battery on a patient or client during the course of diagnosis, counseling, or treatment, where consent to the act was procured by a false representation that the act was for a bona fide medical purpose, ...."

They say they'd close that loophole by saying a doctor can't get consent for an act if they fraudulently claim it was for a medical purpose.

Fox says he's not sure that language goes far enough, adding any reluctance is only setting up another barrier for victims.

"To the extent that people know they won’t be prosecuted, they'll think ‘why should I come forward?'" Fox said.

As for civil suits against Dr. Hardy, Fox says 'That is an active litigation against the current and former owner of the fertility clinic as well as the clinic itself, and that he understands that there was at least one prior lawsuit involving an alleged sexual assault by Hardy, and another pending one.'"

Fox says it's almost a certainty he was known to have fled to Thailand and is believed to still be living there with his current wife.

MORE: Why doctors who sexually abuse patients get therapy and return to practice 

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