25 Investigates: Patients claim loophole allows doctors to get away with misconduct

BOSTON - Time is running out for legislation to pass that would close a dangerous loophole that prevents doctors from being prosecuted on many claims of sexual assault and misconduct.

Last year, 25 Investigates first reported on patients’ claims that they were victims of sexual assault or misconduct, but were not getting justice in Massachusetts.  They blamed a loophole in the law that prevents patients’ cases from moving forward.

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

SHIELDED BY THE LAW 

This week Boston 25 News anchor Kerry Kavanaugh spoke with another local man who says he was victimized.

The man wanted to protect his identity.  He told Kavanaugh his doctor made him take off all his clothes to examine a knee injury. He recalled being asked to lay on his back, stand-up, and bend over while he was nude.

According to this man's police report, he told investigators the doctor never touched his genitals or said anything inappropriate.  He says when spoke with the district attorney’s office, he was told his case was dead in the water because doctors continue to be shielded by the law.

"Everybody said what happened to you was awful, but we can't do anything about it because of this law," he told Kavanaugh.

He was referring to a loophole in the law surrounding the word 'consent' when you see a medical professional in Massachusetts.

PREVIOUS ALLEGATIONS

The alleged victim claims the incident took place at in the office of Dr. James DeVellis.
25 Investigates first reported allegations of misconduct against Dr. Devellis in 2016.

DeVellis was a prominent orthopedic surgeon in Woburn. 25 Investigates obtained complaints, compiled by the Board of Registration in Medicine, that detail similar allegations against DeVellis.  At least one complaitn had a sexual nature.

DeVellis permanently surrendered his medical license, avoiding further investigation by the board. Because of the loophole in the law, he never faced a criminal investigation.

“It's happened with every client I have had that's been abused by a doctor. ‘we believe you. We believe your client. But we can't prosecute,’" attorney Tyler Fox told Kavanaugh.

25 Investigates reached out for a comment from Dr. DeVellis.

Paul Cirel, attorney for Dr. DeVellis, issued this statement to 25 Investigates:

“It is unreasonable and, frankly, unjust to expect Dr. DeVellis to defend himself against an anonymous allegation concerning a medical examination that he conducted more than a decade ago.

Dr. DeVellis was never contacted by law enforcement about any allegations of inappropriate contact with a patient, and the redacted police report that you have forwarded to me demonstrates that no one in law enforcement considered even the patient's one-sided account of the examination to reflect any improper conduct by Dr. DeVellis, or to  be worthy of any follow up investigation.

Dr. DeVellis has never engaged in any improper conduct with any patient and, having successfully treated literally thousands of patients, he cannot fairly be asked to comment on the nature, purpose or scope of a particular examination that occurred over ten years ago without even being given the patient's name and the opportunity to review the medical record.”

CLOSING THE LOOPHOLE?

A law to close the loophole was in the works. State Rep. Kate Hogan and Middlesex District Attorney Marian Ryan drafted legislation 'criminalizing sexual assault by fraud by a medical professional.'

14 months later, the bill hasn't seen a vote.

"They were victimized. They were taken advantage of by someone who gained their trust and then violated them. And now there's another obstacle in that we can't go forward with that case," said Ryan.

Ryan says there's been a number of cases that her office could not prosecute because of the way Massachusetts law is currently written.

The current legislative session ends July 31. No vote is scheduled.

"I think it's unbelievable, unfathomable, and really a disgrace that the legislature has not passed this bill in all this time,"  Fox said.

Cox Media Group