When a physician’s intentional misconduct is at issue

Holding a hospital responsible when doctors sexually assault patients

Thomas A. Cifarelli
2014 November

Those who need medical treatment, and we all eventually will, entrust their health and well-being to people who are typically complete strangers. We all turn to our doctors for help, vulnerably giving over our health and well-being, hoping to cure whatever it was that brought us there in the first place. When a health-care provider breaks that sacred trust, harming a patient with sexually harassing, abusive or assaultive conduct, the effects can be devastating.

While such incidents can occur in a variety of health-care settings, the focus of this article is on claims involving incidents occurring in hospitals or other health-care facilities at the hands of physicians. It should be noted, of course, that a hospital’s liability can be equally based on the misconduct of a nurse, medical technician or other individual working within a hospital or other health-care facility setting. This article is intended to arm the plaintiff’s attorney with the legal theories available to hold a hospital or health-care facility responsible when a physician does the unthinkable.

MICRA is not applicable when a physician intentionally harasses, abuses or assaults a patient

When a physician sexually harasses, abuses or assaults a patient, MICRA does not apply. Medical malpractice actions in California are governed by the Medical Injury Compensation Reform Act of 1975 (See Bus. & Prof. Code, § 6146, Civ. Code, §§ 3333.1 and 3333.2, and Code of Civ. Proc., § 667.7.), commonly known as MICRA. This antiquated and unfair legislation has no applicability in a case involving the sexual harassment or abuse of a patient by a physician. In fact, it is well settled that the sexual assault of a patient is not malpractice and thus falls completely outside the scope of MICRA. See, e.g., Perry v. Shaw (2001) 88 Cal.App.4th 658 (holding California Civil Code § 3333.2 does not apply to intentional tort claims for battery); see also, Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 115, “We [the California Supreme Court] have not previously held that MICRA applies to intentional torts.”

With MICRA inapplicable, the question turns to holding a hospital liable for the intentional – even criminal − misconduct of a physician.

The theories against a hospital for the misconduct of a physician

The doctor as the ostensible agent of the hospital

Under well-settled principles of ostensible agency, a person becomes another’s agent if the principal causes a third-party claimant to believe such agency exists. As set forth in California Civil Code section 2300, “An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (See also California Civil Code section 2317 defining ostensible authority.) As noted in Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103, “A hospital is liable for a physician’s malpractice when the physician is actually employed by or is the ostensible agent of the hospital.” While an employer-employee setting is fairly easy to identify, identifying an ostensible agency relationship usually requires a thorough analysis, particularly where the claim is not based on malpractice but intentional harassment or assault.

The current definition of ostensible agency between a physician and a hospital is set forth in the seminal decisions of Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448 and Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475. Mejia and Ermoian hold, in essence, that in the absence of actual notice to a patient that a physician is not a hospital’s agent, ostensible agency is readily established. Moreover, pursuant to Ermoian, supra at 505, a plaintiff seeking to prove that a physician is an ostensible agent of a hospital is not required to show that the patient actually believed that the doctors were employed by the hospital, or even that he changed his or her position in reliance on that belief. As noted in Mejia:

When this [non-suit] standard is applied to the case law governing ostensible agency in the hospital context, it appears difficult, if not impossible, for a hospital ever to obtain a non-suit based on the lack of ostensible agency. Effectively, all a patient needs to show is that he or she sought treatment at the hospital, which is precisely what plaintiff alleged in this case. Unless the evidence conclusively establishes that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her personal physician, the issue of ostensible agency must be left to the Trier of Fact.

(Mejia, supra at 1458).

Thus, where a patient presenting to a hospital or health-care facility is assigned a physician, ostensible agency is more easily established. Circumstances of ostensible agency might include an ER doctor in an emergency setting, an anesthesiologist in a surgical setting, or a medical clinic where patients are randomly assigned. Where a patient did not hire nor select his or her physician, it is entirely appropriate to hold the hospital or health-care facility responsible for the harm caused by the doctor’s intentional misconduct.

When the hospital ratifies the physician’s conduct

Establishing ostensible agency will not deter a hospital from arguing against its own liability for a physician’s intentional conduct. Hospitals will invoke the respondeat superior doctrine to assert that the physician’s harassing or assaultive conduct substantially deviated from the employment duties ordinarily expected of the staff physician. A hospital will often argue that since the doctor’s sexual abuse of a patient was not a risk typical of or incidental to the employer’s enterprise, was not an outgrowth of the physician’s employment, and was not inherent to the working environment, the hospital cannot be held liable. (See, e.g., Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 481.) That defense will fail, however, if it can be established that the hospital had notice of prior similar problems or ratified such behavior. (See C.R. v. Tenet Healthcare Corporation (2009) 169 Cal.App.4th 1094.)

When the plaintiff can establish a hospital’s knowledge of a physician’s history of similar misconduct, ratification will be established. Such knowledge can be demonstrated where patients, other staff, or someone else reported incidents of harassment, assault or battery by a physician. Under such circumstances, the hospital will be under a duty to act reasonably and investigate such alleged prior misconduct. If, despite notice of prior incidents, the physician remains on staff and proceeds to victimize additional patients, the question of hospital ratification would appear to be established.

As the C.R. court held,

As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. The failure to discharge an employee who has committed misconduct may be evidence of ratification. The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery…whether an employer has ratified an employee’s conduct is generally a factual question.

(C.R., supra at 1110 (citations omitted) (Emphasis added.))

A purported agent’s act may be adopted by the principal expressly or impliedly. While a principal’s express adoption of the misconduct of its agent may be rare, implied adoption of such misconduct can be established through the principal’s conduct. Specifically, a principal’s implied adoption of an agent’s misconduct can be shown where the principal acted in a manner “inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.)

One can imagine the following scenario where a hospital, the principal, might be considered to have adopted the misconduct of a physician, the agent: A physician assaults a patient in front of a witness. The witness reports the incident to the hospital. The hospital purportedly “investigates” the report, but the investigation is deficient. The hospital does not question the offending physician nor take any steps to prevent future misconduct. The physician continues to practice, enjoying free and unrestricted access to other patients in the hospital. Under such circumstances, the hospital as principal can be found to have impliedly adopted the misconduct of the physician as its agent.

The C.R. case arose out of such conduct. There, a certified nurse’s assistant repeatedly sexually abused patients in a medical center over several years. Despite different patients reporting the nurse’s assistant’s sexual abuse to hospital administration, the hospital effectively did nothing to investigate the claims against the assistant, refusing to fire or discipline him. Further, the hospital took no action to prevent him from being alone with female patients or provide other appropriate supervision. Finally, the hospital destroyed, altered and modified complaint reports, nurse’s notes, patient charts and employee files to conceal the history of misconduct. Under those facts, the Court concluded that a claim had been sufficiently pleaded to overrule the hospital’s demurrer.

Holding the hospital directly responsible for a physician’s sexually assaultive or harassing conduct

California Civil Code sections 51.9 and 52

Finding a statute upon which to hold a defendant responsible for its misconduct is an important aspect of evaluating every new case. California Civil Code section 51.9 is precisely such a statute in a sexual harassment or assault case involving a physician at a hospital or other health care facility.

Pursuant to that statute, a person is liable for sexual harassment where the plaintiff proves, in pertinent part, the following elements:

There is a business service or professional relationship between the plaintiff and the defendant. The statute explicitly identifies several different business or professional relationships including physicians or other health-care providers and patients. The defendant made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or has engaged in other verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender that is unwelcome and pervasive or severe.

iii. There is an inability on the part of the plaintiff to easily terminate the relationship.

The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including but not limited to, emotional distress or violation of a statutory or constitutional right.

Plainly the definition of ‘person’ contemplated under the statute can include a corporation and has, in fact, been specifically held to include a hospital. (C.R., supra.) Moreover, sexual harassment or molestation squarely fall within the scope of the proscribed conduct. Further, where a patient is molested in a hospital or other health-care setting, there is a clear inability on the patient’s part to easily terminate the relationship. For example, one might imagine the impossibility of a patient terminating his or her relationship with an anesthesiologist who molests her moments before she is rendered unconscious. Finally, there are a host of methods by which a patient could prove that he or she suffered damages as a result of the physician’s misconduct. The statutory elements of California Code of Civil Procedure section 51.9 can, therefore, be readily established when a physician sexually harasses or molests a patient in a hospital or health-care facility.

California Code of Civil Procedure section 52 expands significantly the universe of parties who might be held liable for violations of section 51.9. Pursuant to section 52(b), “Whoever denies the right provided by section 51.7 or section 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right.” (Emphasis added.) Thus, even if a hospital could successfully argue that an offending physician was not in fact an ostensible agent of the hospital or health-care facility, by allowing a physician to continue to remain on staff and practice with unsupervised access to patients, while knowing that the physician had a prior reported history of misconduct, the hospital could be clearly found to have aided, incited or conspired with the physician in the denial of those rights protected under section 51.9.

A plaintiff can show that a hospital “aided, incited or conspired with the physician” through ratification. Indeed, “principles of ratification apply to a section 51.9 cause of action.” (C.R., supra, at 1111.) Further, a hospital may be liable under a theory of ratification where supervisory employees failed to take “remedial action” after receiving complaints related to staff issues. (Marron v. Superior Court, (2003) 108 Cal.App.4th 1049, 1067-1068.).

Once ratification is established, a hospital can be found liable for all damages available pursuant to California Civil Code section 52. Specifically, the statute expressly makes available powerful remedies including: “(1) an amount to be determined by a jury or a court sitting without a jury for exemplary damages, and … attorney’s fees as may be determined by the court.” Notably, the damages available under section 52 are in addition to the general and special damages also available under such circumstances. Moreover, since such actions are not covered by MICRA, the resulting damages are not capped. Further, the collateral source rule remains in full force and effect. Finally, under section 51.9 there is plainly no obligation to comply with Code of Civil Procedure section 425.13 before seeking punitive damages.

Failing to report abuse as negligence per se

A negligence per se claim can be established where there is a statute designed to protect the class of people to which plaintiff belongs from the type of harm plaintiff suffered. California Civil Jury Instructions (CACI) and the Evidence Code are instructive for the application of negligence per se under circumstances where a hospital employee failed to report suspected abuse.

Evidence Code section 669 codifies the common law presumption of negligence per se and the grounds for rebutting the presumption. Subdivision (a) sets forth the conditions that cause the presumption to arise. The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public entity;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the classes of persons for whose protection the statute, ordinance, or regulation was adopted.

• “Although compliance with the law does not prove the absence of negligence, violation of the law does raise a presumption that the violator was negligent. This is called negligence per se. The presumption of negligence arises if (1) the defendant violated a statute; (2) the violation proximately caused the plaintiff’s injury; (3) the injury resulted from the kind of occurrence the statute was designed to prevent; and (4) the plaintiff was one of the class of persons the statute was intended to protect. The first two elements are normally questions for the trier of fact and the last two are determined by the trial court as a matter of law. That is, the trial court decides whether a statute or regulation defines the standard of care in a particular case.”

(Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526, internal citations omitted; see also Cal. Law Revision Com. to Evid. Code, § 669.)

• “Essentially, application of the doctrine of negligence per se means that the court has adopted the conduct prescribed by the statute as the standard of care for a reasonable person in the circumstances.”

(Casey v. Russell (1982) 138 Cal.App.3d 379, 383.)

Where a hospital is being sued for incidents involving the sexual abuse of a patient, two statutes provide a potential basis for negligence per se claims.

California Health & Safety Code section 1279.1:

A hospital is required to report a physician’s misconduct pursuant to California Health & Safety Code section 1279.1. Pursuant to California Health & Safety Code section 1279.1, hospitals are required to report to the California Department of Health Services any “adverse event” no later than five days after the adverse event has been detected or, if the event is an ongoing urgent or emergent threat to the welfare, health or safety of patients, personnel or visitors, (as would clearly be the case here), not less than 24 hours after the adverse event has been detected.

For purposes of § 1279.1, adverse events include, “the sexual assault on a patient within or on the grounds of a health facility.” (California Health & Safety Code § 1279.1(b)(6)(C)). Moreover, pursuant to California Health & Safety Code §1279.1(c), “the facility shall inform the patient or the party responsible for the patient of the adverse event by the time the report is made.”

California Penal Code sections 11165-11174.3; 11160 − failure to report events involving minors in violation of California’s mandatory reporting laws

When a minor is sexually assaulted by a physician, another statute may be relied upon to support a legal claim. In addition to its duty to comply with the reporting requirements under Cal. Health & Safety Code, section 1279.1, a hospital must also comply with the mandatory reporting requirements set forth under California Penal Code sections 11165-11174.3, as well as section11160. California Penal Code sections 11165-11174.3 set forth California’s ‘Child Abuse and Neglect Reporting Act’ (hereinafter “CANRA”). These statutes require that health-care providers such as nurses and physicians immediately report suspected child abuse or endangerment to child protective services and law enforcement. The law mandates the reporting of a host of potentially abusive circumstances including ‘penetration of the vagina or rectum by any object’ per Penal Code section 11165.1(e)(2). Where another physician or a nurse or other licensed health-care provider witnesses the sexual assault of a minor, the observing party has an independent and mandatory duty to report the event to the police within 36 hours of the discovery.

Importantly, under the CANRA requirements, persons obligated to report suspected abuse have no discretion to conduct their own investigation in order to determine whether or not they believe abuse has actually occurred. If they have any reasonable suspicion of abuse, they must report it – and the standard for what constitutes ‘reasonable suspicion’ under CANRA is extremely low. Per Penal Code section 11166(a)(1):

. . . For purposes of this article, “reasonable suspicion” means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient.

Though ignorance of the law is never an excuse for failing to abide by it, that argument is entirely unavailable where a health-care provider employed by a hospital fails to report known or suspected abuse. In fact, CANRA requires that employees be on actual notice of the law as a condition of their employment. Pursuant to Penal Code section 11166.5(a):

On and after January 1, 1985, any mandated reporter as specified in section 11165.7, with the exception of child visitation monitors, prior to commencing his or her employment, and as a prerequisite to that employment, shall sign a statement on a form provided to him or her by his or her employer to the effect that he or she has knowledge of the provisions of section 11166 and will comply with those provisions. The statement shall inform the employee that he or she is a mandated reporter and inform the employee of his or her reporting obligations under section 11166 and of his or her confidentiality rights under subdivision (d) of section 11167. The employer shall provide a copy of sections 11165.7, 11166, and 11167 to the employee.

Thus, staff physicians and nurses typically have an independent and mandatory duty to report an event to the police within 36 hours of witnessing it. Failing to report witnessed incidents in a timely manner could form the basis of a claim for negligence per se. Moreover, as with a failure to report under California Health & Safety Code section 1279.1, the failure to report under CANRA provides further powerful evidence of active concealment of sexually abusive activity. Such concealment would also help establish a hospital’s ratification of the physician’s misconduct.

Considerations about bringing claims directly against the physician

By focusing on claims against hospitals and health-care facilities, I am in no way intending to discourage claims directly against the physician-perpetrator. However, such claims present particular challenges that should be carefully evaluated before litigation is commenced. First, most insurance carriers will refuse to defend or indemnify claims for the intentional or criminal acts of an otherwise insured physician. Without available insurance, the analysis should shift toward whether the perpetrator will have sufficient assets to pay a claim. Finally, since such conduct could likely trigger criminal prosecution, any lawsuit against the physician could be delayed due to the concurrent prosecution of a criminal case against the doctor. Under such circumstances, the defendant could stay the civil lawsuit during the pendency of the criminal matter to protect his or her Fifth Amendment right against self-incrimination. Pacers, Inc. v. Superior Court, (1984) 162 Cal.App.3d 686. These are some of the considerations that should be made before a lawsuit is commenced directly against the physician.

Conclusion

As consumers of health care and advocates for patients, we all know that the physician-patient relationship is an important one. It requires complete trust, candor and responsibility. When a doctor violates that trust, sexually harassing or assaulting his or her patient, the patient’s attorney should be prepared to utilize the many tools and strategies available to address these serious incidents and win justice for the patient.

Thomas A. Cifarelli Thomas A. Cifarelli

Thomas A. Cifarelli handles all types of catastrophic injury cases, including child sexual abuse and harassment matters and patient sexual abuse cases involving health care providers. He has prosecuted and resolved hundreds of child and adult sexual abuse cases. He is a partner in The Cifarelli Law Firm, LLP.

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