Unsolicited nude photos lead to nursing board decision

The University of Vermont Medical Center fired a licensed nursing assistant (LNA) last year after it found out he had sexually harassed a former patient, according to a recent order from the Vt. Board of Nursing.

The hospital network fired Marc Fleming in May 2018, days after a female patient formerly under his care at the Fanny Allen rehabilitation unit reported him for sending an unsolicited nude photo of himself, public records show. The woman had been staying at the Colchester campus to recover from a double leg amputation, and often Fleming was assigned as her LNA.

Before leaving Fanny Allen, the female patient shared her cell phone number with several staff members, including Fleming. A month later, he twice sent the woman a nude photo of himself, board documents show.

“[D]on’t be shocked we’re all naked,” he wrote in a text message. He then added, “[I]t was just a nod to you we all have legs.”

The patient was reportedly upset and alerted a staff member at the assisted-living facility where she was staying. Fanny Allen fired Fleming five days later.

Despite losing his job over the behavior, Fleming wasn’t finished. In the month after his firing, he sent his nude photo to two more women without their consent: the daughter-in-law of an elderly patient and his former coworker who still worked at Fanny Allen, board documents show.

LNAs perform medical tasks and assist patients on a variety of personal needs, a level of access that gives them an “extremely important” role in making a patient’s hospital stay “as comfortable as possible,” reads the UVMMC website.

Because LNAs are licensed by the nursing board, the regulatory body has the authority to investigate complaints into their behavior, and can suspend or revoke a licensee’s right to practice medicine if it deems their behavior to be a risk to the public or damaging to the integrity of the profession.

The board opened an inquiry into Fleming’s conduct in June and sent an investigator to his home for an interview, during which he admitted to sending the pictures to the patient, according to the board’s order. He tried to justify the behavior by saying that he was an alcoholic and was intoxicated at the time.

The board took emergency action against Fleming’s license in August 2018. A year later, it issued an indefinite suspension, finding he had engaged in actions “repugnant” of the profession.

The incident was not Fleming’s first offense: In 2015, he sent an unsolicited nude photo to a coworker.

When the hospital network learned of the incident and determined that Fleming had committed sexual harassment, it disciplined him with a “final written warning” but allowed Fleming to keep his job, according to the nursing board order. Meanwhile, UVMMC never reported the incident to the nursing board.

Whether it should have? That depends.

State law requires hospitals to only report disciplinary measures to the board when they condition or limit an employee’s privilege to practice medicine, according to Gabriel Gilman, general counsel for the Vt. Secretary of State’s Office of Public Regulation.

“It’s sort of a funny trigger,” Gilman said, because “if you know about something appalling and you do nothing,” then there’s no obligation to report the conduct to the board.

Spokeswoman Annie Mackin said the UVMMC legal team decided the hospital network can’t comment on Fleming’s case because it’s a personnel matter, so it’s unknown what factors played into its disciplinary action. Nor is it clear whether the hospital network transferred either Fleming or the harassment victim following the complaint, or whether discipline of Fleming went beyond the formal slap on the wrist.

In a general written statement, Mackin said the health center’s leadership and human resources department investigates any allegations of harassment, believing it is important to “come to a full understanding” of every situation before determining the next steps.

“We consider many factors, including but not limited to the behavior itself, whether there is a pattern, the employee’s willingness to correct the issue, whether there is any impact to patient care, and other potential factors,” Mackin wrote in the statement. “Based on the outcome of each investigation, an employee may be terminated or may receive formal action and the opportunity to correct their behavior, if everyone involved feels they are able to move forward in a comfortable work environment.”

Jessica Burke, an attorney who represented Fleming before the nursing board, declined to comment on the case.

If Fleming wishes to return to work as an LNA, he will need to seek reinstatement. First, he must undergo a psychological evaluation that shows he’s not a risk to patients, according to the board’s order. He must also undergo a drug and alcohol assessment and submit to at least three random urine analyses.

The board can then decide whether to reinstate his license with conditions.