Last month in New York, a prominent emergency room physician was accused of sexually assaulting four women in his care. In California, the state medical board suspended the license of a Los Angeles/Glendale doctor in February after reports of sexual misconduct with a patient.
Each of these physicians had no known prior record of sexual assault, leaving officials in the hospitals where they worked wondering what signs might have been missed.
When a doctor commits a sexual assault, it is not just concerns about the victim, the criminal investigation and the publicity nightmare that hospitals have to bear. There is the very real question of liability and how to rebuild patient trust. Following are a few steps that hospitals can take on liability and trust issues.
First: Be vigilant about oversight
The key liability question in any assault case is whether the hospital was aware of the physician’s aberrant tendencies, says attorney Michael Mustokoff, a partner with Duane Morris LLP, a Philadelphia-headquartered law firm with offices in the US, UK, and Asia.
“Hospitals have an obligation of oversight … It comes down to what did they know and when they knew it,” he said.
Morris represented Delaware’s Beebe Medical Center in a class action lawsuit alleging the hospital was negligent for not following up on complaints in 1996 that one of its doctors was molesting children. The doctor, Earl Bradley, was later accused of videotaping more than 100 children at his practice and charged with 471 criminal counts. Bradley was convicted in 2011 and sentenced to 14 life terms plus 164 years in prison. The hospital settled for $123 million in 2012.
Kevin Miller, an attorney with the firm of Quinn, Johnston, Henderson, Pretorius & Cerulo in Peoria, IL, said hospitals need to be vigilant about following up on complaints. A key issue: “Were there any telling signs that this person was leaning toward doing something aggressive or doing something out of line?” he asked.
The general rule of law for liability is that an employer is not responsible for events that occur outside the scope of employment, and a criminal act is not committed within the employee’s duties, Miller said. That said, all hospitals should conduct criminal background checks and check references on potential employees, he said. Being able to show due diligence in the hiring process can go a long way to proving or disproving a case of liability against a hospital, Miller said.
“It’s all about foreseeability,” Miller said. “Was there a pre-employment screening? If there wasn’t, that’s probably too bad for the hospital. That’s one strike against them in the liability picture.”
Liability insurance often isn't a solution for hospitals. Many state laws prohibit businesses from insuring against intentional conduct, so sexual assault wouldn’t be covered. It then becomes a matter of the victim’s lawyer couching the liability case in terms that would implicate insurance, Miller said, such as showing the hospital negligently hired or negligently supervised the employee.
A gap in information
There is also the issue of when and how much hospitals should say about an assault or a doctor’s prior history. Hospitals may be reluctant to admit an assault occurred, especially if it is early in the investigation and not all of the facts are in. While the victim’s privacy is protected by HIPAA, patients also want to know if a doctor is on probation for sexual assault or other misconduct.
But accessing that information isn’t easy, according to a recent Consumer Reports report. The report drew on the National Practitioner Data Bank, which keeps data on malpractice awards and disciplinary actions, but that data isn’t available to the public. To find out if a doctor has been disciplined, patients must go to state medical boards and that process can be lengthy and convoluted in some states.
“You can find out more about the safety record of your toaster and whether or not it is going to catch fire than you can find out about your physicians,” Robert Oshel, a patient safety advocate and former associate director of research and disputes at the NPDB, said in a news release accompanying the Consumer Reports findings.
Restoring trust in a healthcare system after a sexual assault or similar incident “only comes with time,” Miller said.
An example: When an investigation revealed a gynecologist in the Johns Hopkins Health System had secretly videotaped and photographed about 8,000 women and girls, many of the affected individuals were so distraught that they “dropped out of the medical system,” Jonathan Schochor, the lead attorney for the women, told Modern Healthcare. The hospital recently settled the class-action lawsuit for $190 million.
“The best way to handle it is to assume responsibility, but not blame,” Mustokoff said. “A hospital has a moral responsibility for what happens under its roof…and to safeguard the safety and health of its patients."
“We always advise [hospitals] not to run from the facts and to take whatever steps are necessary to alleviate the pain caused by the physician,” he said.