Hospitals are commonly named as defendants in medical
malpractice lawsuits for claims arising from alleged injuries
within their walls, but what is their exposure to liability for
claims that arise from alleged sexual assaults by staff on their
premises? In September 2016, the Atlanta
Journal-Constitution released a five-part
investigative series examining the alleged epidemic of physician
sex abuse in all 50 states. The series examined the purported
problem of sexual abuse by physicians, including how licensing
bodies discipline physicians, how cases of sex abuse are handled in
each state, the ability of physicians to continue to practice
despite allegations of abuse, and the effects of such abuse on the
Overall, the series suggests there is an epidemic of
"physicians behaving badly" who take advantage of
vulnerable patients and are shielded by a system designed to
protect their own. Claims of sexual abuse, either substantiated or
unsubstantiated, frequently involve a patient rendered unconscious
by anesthesia or a female patient alone with a male health care
provider during an examination or procedure. Clearly, there are
"bad apples" who commit indefensible acts against their
patients; however, as defense counsel we must be cognizant that,
sometimes, these salacious but unsubstantiated allegations can open
the floodgates to the plaintiff's bar and ruin the reputations
of physicians before guilt is determined.
In these cases, because the alleged criminal act is ultra
vires (meaning it falls outside the scope of the
employee's duties), the doctrine of respondeat
superior rarely applies and the hospital would not be held
vicariously liable as the employer. In these types of claims,
however, plaintiff's attorneys often assert a claim for
negligent hiring, supervision or retention to keep the
deep-pocketed hospital as a defendant. In New York, a claim for
negligent hiring, supervision or retention arises when an employer
places an employee in a position to cause foreseeable harm −
harm the injured party most likely would have been spared had the
employer taken reasonable care in supervising or retaining the
Clearly, if an employee has a history of sexual misconduct the
employer either knew about or with a reasonable background check
could have learned about, there is potential exposure.
Additionally, if the employment file does not contain
well-documented periodic evaluations, a plaintiff's attorney
can argue the employee was not properly monitored for
Another common allegation is that the hospital (employer) failed
to promulgate appropriate policies to prevent sexual misconduct.
For instance, a plaintiff may claim a hospital failed to have a
proper chaperone policy in place for female patients during the
performance of procedures involving an intimate area. Whether this
type of allegation is defensible may require an expert review in
the medical specialty to support the claim that a chaperone is not
a customary or required medical practice.
In sum, although plaintiff's attorneys face an uphill battle
when asserting claims against a hospital arising from sexual
assault, a hospital may leave itself open to a high-exposure claim,
with shock value and negative publicity, without well-documented
background checks, periodic evaluations and a thoughtful chaperone
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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