Four Questions To Ask When Holding Medical Entities Accountable For Doctor-Patient Sexual Abuse
Doctor-patient sexual abuse has become a widespread epidemic over the last decade, with thousands of patients coming forward to expose the egregious abusive conduct by purported trusted physicians. Sexual misconduct in a medical setting may be perpetrated by physicians, nurses, medical assistants, physician assistants, chiropractors, massage therapists, acupuncturists, or even members of administration. Abuse can happen in hospitals, long-term care facilities, nursing homes, athletic settings, university medical centers, or private family practices. It can happen to anyone: men, women, students, athletes, members of the LGBTQ+ community, or gender non-conforming individuals. But how can a patient hold a hospital or other medical facility responsible for the doctor’s sexual misconduct? Below, our friends at Kellogg & Van Aken LLP discuss questions that may help you determine if a hospital or medical facility may be at fault when there is doctor-patient sexual misconduct:
1. Was The Physician Or Medical Professional An Agent Of The Hospital Or Medical Facility?
The first question you must ask in determining whether you can hold the hospital or medical facility liable in cases of doctor-patient sexual abuse, is whether the perpetrator doctor (or other medical staff member) was an ostensible agent of the hospital or medical facility. In the absence of actual notice to a patient that a physician is not the hospital’s agent, ostensible agency is established. In other words, unless the evidence conclusively establishes that the patient should have known that the treating physician or medical provider was not in fact the hospital’s agent, the issue of agency is readily inferred.
2. Did The Hospital Or Medical Facility Adequately Screen The Doctor Or Medical Staff Member Before Hiring?
Another important question to ask is whether the hospital or medical facility adequately screened the perpetrator before hiring. Sometimes, perpetrator physicians have a history of misconduct which should be discovered through reasonable diligence on the part of the employer, including through adequate criminal background checks, through obtaining past state licensing board complaints or disciplinary action, or through checking references and contacting past employers to determine whether there is a history of wrongdoing. If a hospital or medical facility failed to conduct an adequate screening of the perpetrator during the hiring process, and there was misconduct from the past to discover, you may have a claim for negligent hiring.
3. What Did The Hospital Or Medical Facility Know Of The Sexual Misconduct And When Did They Know It?
Determining what the hospital or medical facility knew of the doctor’s sexual misconduct and when they knew it is another question that will help you determine whether you may hold the hospital or medical facility liable for a doctor’s abuse of patients. In many cases, when a physician or other medical professional sexually assaults or harasses a patient, it is not an isolated incident. Doctors who assault their patients tend to have a pattern and practice of engaging in such misconduct which often leads to complaints to the employer. If there were complaints of sexual misconduct against the medical professional prior to the patient seeing that physician, whether by other patients or even other staff members, then the institution was on notice of the misconduct. When a hospital or medical facility is on notice that one of their staff members is engaging in inappropriate sexual conduct, the institution may be held responsible if they fail to take corrective action.
4. What Did The Hospital Or Medical Facility Do When They Discovered The Doctor’s Sexual Misconduct?
If you determine that the hospital or medical facility did in fact receive complaints about a physician engaging in inappropriate conduct towards a patient, you must then ask what the hospital or medical facility did with such information. While an employer may not always be held liable for an employee’s sexual misconduct pursuant to vicarious liability or theories of respondeat superior, it may be liable for an employee’s misconduct where the employer either authorizes the tortious act or ratifies the originally unauthorized tort. Ratification can include a failure to investigate or respond to complaints; a failure to discipline or discharge an employee who committed unauthorized misconduct; the retention of an employee after knowledge of an employee’s misconduct or an adequate opportunity to learn of misconduct; or an employer’s concealment of known abuse.
The answers to these four questions will help you determine whether you can bring a legal claim against a hospital or medical facility that employed a doctor who engaged in sexual abuse of patients. If you or a loved one faced an assault at the hands of a doctor or medical professional, consider consulting with a sexual assault victim lawyer to discuss your legal options.
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Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Each situation is unique, and readers are advised to seek professional legal counsel for specific advice.
