A hospital owes a duty of care to protect patients from sexual assault and other crimes by its staff members. Liability will depend on whether the Hospital has materially increased the risk of criminal conduct.
While it is not possible for a hospital to constantly supervise all its staff, the New South Wales District Court has held that adequate staffing levels and a 24 hour patient monitoring system will go a long way in showing that a hospital has responded reasonably to the risk of staff members assaulting patients.
NB v Sydney South West Area Health Service  NSWDC 172 (6 October 2010)
The plaintiff was 18 years old when she suffered a stroke in early 2006. She was treated in the intensive care unit (ICU) of the Liverpool Hospital for about 5 weeks during February and March 2006. At times during this period the plaintiff was restrained to prevent her from dislodging various lines and tubes. She was unable to speak as she was heavily medicated, lapsing in and out of consciousness.
The clinical notes confirmed that the plaintiff developed a rash while in ICU and creams were applied to her "intimate areas". There were times when the plaintiff was left in her bed unclothed and uncovered, such as when she was suffering from a temperature.
The plaintiff alleged that during her last week in ICU she was sexually assaulted by a male ward orderly employed by the Hospital. She claimed that she overheard a nurse ask the ward orderly to "babysit" her, so that she was left alone in the ward orderly's care. The plaintiff was unclothed and uncovered. She claimed that the ward orderly closed the curtains to her cubicle and assaulted her.
The plaintiff also alleged that prior to the assault, she had overheard the ward orderly make comments with sexual overtones about her to a nurse. The plaintiff did not report this to the police.
The plaintiff was transferred to a neuro-surgical ward on 22 March 2006 and was given a letter board because she was still unable to speak. On 2 April 2006, she used the letter board to spell out the words "sexual assault" and the ward orderly's first name. The plaintiff's mother filed complaints with the Hospital's nursing unit manager, police and Health Care Complaints Commission.
The plaintiff alleged that she suffered nervous shock as a result of the assault. She sued the Hospital for damages on the basis that it was:
(a) Vicariously liable for the criminal conduct of the ward orderly; and
(b) Directly liable in negligence for allowing circumstances to
arise in which the ward orderly could sexually assault
The Decision of the New South Wales District
Was the plaintiff assaulted?
On the balance of probabilities, the Court was not satisfied that the ward orderly assaulted the plaintiff. The Court held that it was probable that the plaintiff was mistaken when she claimed that she was sexually assaulted because:
(a) She was heavily medicated and lapsed in and out of consciousness;
(b) There was expert evidence that the plaintiff's memory was severely impaired during her time in the ICU;
(c) Her use of the letter board had probably resulted in a misunderstanding or misrecording of the details of the complaint;
(d) The plaintiff received treatment to rashes in her intimate areas, which was a rational alternative explanation for the plaintiff's allegations of assault;
(e) There was no prior record of crime or misconduct by the ward orderly; and
(f) There was a lack of opportunity for the ward orderly to commit the assault. The physical layout of the ICU and the systems in place for nursing patients, managing staff rosters, supervising ward orderlies and reporting complaints meant that it was improbable that the ward orderly had the opportunity to have access to the plaintiff so as to be able to commit a sexual assault.
Was the Hospital vicariously liable for the alleged assault?
The Court held that if the assault occurred, it could only be regarded as an independent criminal act and would fall outside the scope of the terms of the ward orderly's employment. The Hospital could not be held vicariously liable to the plaintiff.
Was the Hospital directly liable for the alleged assault?
The Court held that the criminal nature of the ward orderly's alleged assault did not exclude the Hospital from liability. Circumstances might arise where a hospital is under a duty to take reasonable steps to protect others against the risk of harm from the criminal conduct of its staff. The question was whether the Hospital was at fault in materially increasing the risk of criminal conduct.
The Court held that there were deficiencies in the recruitment and reference checks of the ward orderly. There was no evidence of any assessment of the ward orderly's conduct or the quality of his work, even though he had only been recently recruited.
The Court also found that the Hospital's complaints handling systems did not always operate as planned. Staff members appeared to consider that it was not their responsibility to report the plaintiff's allegations against the ward orderly as soon as they were made, even though the complaint was very serious.
Despite these shortcomings, the Court ultimately held that the Hospital did not breach its duty of care to the plaintiff. The Court held that the Hospital's very high levels of staffing and the fact that the plaintiff was monitored on a 24 hour basis by one nurse with responsibility solely for her care was a more than reasonable response to the risk that a staff member would behave in the manner alleged against the ward orderly.
While it was not possible to maintain a constant level of supervision of all staff in the ICU, the Court held that it was not reasonable to require the Hospital to maintain supervision to the standard of perfection.
Judgment was entered for the Hospital with costs.
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