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Sex and the VA Therapist

By Susan Smith

Tuesday, January 20, 2009

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.

A Veterans Affairs exercise therapist at the VA medical center in Memphis lost his court appeal seeking to overturn his firing for engaging in a prohibited relationship with a patient. (Abrams v. Department of Veterans Affairs, C.A.F.C. No. 2008-3314 (Nonprecedential), 1/12/09)

As a kinesiotherapist, Abrams prescribed and monitored exercise therapy for veterans. Apparently while treating a female patient, Abrams became engaged in a five-year sexual relationship with her.

Apparently when the affair broke off, the female patient complained to the agency that Abrams was harassing her now and requested a new therapist. The agency assigned a replacement therapist and ordered Abrams not to have any more contact with his former patient. The agency eventually removed Abrams for having a prohibited relationship with his patient. (Opinion pp. 1-2)

On appeal to the Merit Systems Protection Board, Abrams argued that the relationship had not been sexual and therefore was not improper. Not so, ruled the Board's Administrative Judge, who reached this conclusion based on witness credibility—the former patient said it was an affair and Abrams said it wasn't—finding that the patient's testimony was more persuasive. The AJ sustained the agency's removal of Abrams based on the improper patient relationship charge. (p. 3)

Abrams took his case to the Federal Circuit Court of Appeals. Predictably, the court refused to interfere with the Board's witness credibility decisions and sustained the Board's findings. In its decision the court summed it up succinctly: "This case hinges on the conflicting testimony… This court will not overturn credibility determinations unless the testimony was ‘inherently improbable or discredited by undisputed evidence or physical facts.'" (p. 4) Since Abrams offered no evidence that would meet this test the court affirmed the Board and upheld Abrams' firing by VA.

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Readers' Comments

  • Learn to read unhigh "The agency eventually removed Abrams for having a prohibited relationship with his patient. " NOT for harrassing her, which was wrong but not grounds for removal...
    Posted: January 29, 2009 6:09 AM
  • I concur TeleHealth. This crap goes on constantly in my VA. It truly is the epitome of it's not what you know but....etc. Especially if your trying to get on w/ the govt. Good thing is, if the relationship goes well, an employee can get a sweetie hired on here, & don't let the person be a manager...
    Posted: January 22, 2009 12:25 PM
  • Wrong answer. When she decided to end the relationship, he should have been adult enough to move on, but he didn't, which is in many cases. This is what led to removal and should have been. It's always easy until the shoe is on the other foot....
    Posted: January 21, 2009 9:31 AM

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