Health Law

EMPLOYER NOT LIABLE FOR SEXUAL ASSAULT BY PHYSICIAN WHERE MISCONDUCT NOT FORESEEABLE.

By Greg Piche'

    A hospital or medical group employing physicians are not generally liable for the wrongful acts of their employees committed outside the scope of their employment. What about sexual assault committed in the course of a medical examination? The answer is that it depends. It depends on the employer?s knowledge of the 

employee?s proclivities and the foreseeability of the misconduct.

    Consider the behavior of Dr. Eric Rosenkrantz, a cardiologist formerly employed by Bellin Memorial Hospital in Iron Mountain, Michigan. A patient  referred to Dr. Rosenkrantz, Trudy Sparks complained that Dr. Rosenkrantz, known by some of the staff at Belllin as ??Dr. Pig? performed an examination on Ms. Sparks , that may or may not have been clinically appropriate, but accompanied his effort with a free flowing, sexually explicit banter and unwanted touching.  Ms. Sparks brought a suit against the hospital claiming vicarious liability for Dr. R?s ( or Dr. P?s if you prefer) misconduct.  

    The management of the hospital was aware of declining income in the cardiology department which appeared to be related to fraying relationships between the physician and referral sources. The hospital was aware of a claim by a woman that he inappropriately grabbed her wrist to look at her bracelet.  The hospital was aware that he was alienating staff.  The hospital filed a motion to dismiss on a number of grounds including the lack of foreseeability. The federal judge agreed and granted the defendant?s motion to dismiss in Sparks v. Bellin Health Systems, Inc. et al , Case No. 2:09-cv-14 (WD Mich., Northern Div. 2010). The court held that the doctor?s tendency to be rude and disrespectful to his staff and very limited knowledge of his proclivity to make sexually inappropriate remarks was insufficient to render his conduct toward Ms. Sparks ?foreseeable? to impose a duty on the employer to protect Ms. Sparks. Notice of a tendency toward misconduct is key to imposing vicarious liability on an employer for tortious or criminal acts.

    ?No notice is taken of a little evil, but when it increases it strikes the eye.?- Aristotle

Full post as published by Healthcare Law Blog on July 02, 2010 (boomark / email).