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Hospital’s Liability for Sexual Misconduct of a Physician-Employee

By Kevin M. Miller

When a hospital terminates the employment relationship with a physician under a cloud of suspicion of sexual misconduct, it puts to rest concerns over safety for patients and co-workers. No one wants to see patients or healthcare workers put at risk of sexual assault or harassment. But while the firing of such a physician alleviates some concerns, it raises others for risk management. What can be said to the physician’s prospective employer about the reason for termination? Can the hospital be sued for the physician’s prior actions and if so, what is the statute of limitations against the hospital? This area of law is still evolving, with several court decisions published recently.

In Helfers-Beitz v. Degelman, a patient at an urgent care center sued a physician and the hospital which employed him for claims arising out of sexual misconduct during two office visits. When the defendant physician gave his deposition, he admitted that there was no medical reason for his actions. The claims against the hospital/employer included a count based on respondent superior, that is, that the employer should be responsible for the actions of the employee who committed the misconduct, as the misconduct fell within the scope of employment. The trial court granted summary judgment to the hospital/employer, holding that the misconduct clearly outside the scope of employment. The Illinois Supreme Court agreed and affirmed.

In general, the court stated, conduct that is performed solely for the benefit of the employee is not to be considered within the scope of employment, including acts of sexual misconduct. The court made mention of a 1993 case where similar acts performed by a psychtherapist during the course of therapy were held to arise out of employment. To distinguish that case, the court pointed out that the nature of psychotherapy frequently involves the phenomenon of transference, where the patient will transfer his/her feelings towards others to the psychotherapist. This in turn requires the therapist to counteract the transfer to avoid emotional involvement with the patient. In the medical setting, however, transference is not typically involved, so that the medical physician who commits acts of sexual misconduct does so purely for his own benefit and in a manner unconnected to the nature of the physician-patient care setting. The physician who committed the misconduct in the case before the court therefore did so outside of the scope of employment, for which the employer/hospital was not liable.

Another recent case reached a similar result. In Kaufman v. Schroeder, the plaintiff claimed that her obstetrician sedated her for a physical exam that required no sedation, then committed a deviant act of a sexual nature on her. In discussing the hospital/employer’s liability for the physician’s misconduct, the appellate court found that the sexual misconduct did not arise out of patient care: the conduct was such that there was no medical reason for the actions, despite the fact that it took place in the health care setting.

The case of Doe v. University of Chicago, also decided within the last year, presented a review of a claim under the new Gender Violence Act. That statute provides a cause of action against anyone who performs an act of gender violence and against anyone who assists in such an act. In that case, an anesthesiologist had worked at for the defendant university until 1999, when he resigned amid allegations of sexual harassment. As part of the termination agreement, the university agreed not to mention the sexual harassment allegations to prospective employers. In late 2004, long after gaining subsequent employment at another hospital, the anesthesiologist approached the plaintiff, a nurse intern, under the pretext of providing instruction, and assaulted her. The plaintiff sued the University of Chicago, claiming that it assisted in the act of gender violence by deciding to remain quiet about the anesthesiologist’s prior misconduct.

The Gender Violence Act had taken effect in early 2004, before the sexual assault, but well after the defendant University had decided not to speak of the anesthesiologist’s prior sexual harassment allegations. Before the court was the question of whether the Act could be applied retroactively to apply to the university’s actions before the effective date of the Act, when the assault occurred after the Act’s effective date. In a holding favorable to employers, the appellate court held that the Act would not apply retroactively, and allowed the dismissal of the university.

Conclusions: employing health care providers who commit acts of sexual misconduct leaves an employer open to liability suits. While the liability door is closed somewhat when the misconduct can be described as separate from the true provision of medical care, common law causes of action or those under the Gender Violence Act leave the employer exposed to potential liability, especially where the employer’s actions have occurred after 2004.

Originally published in the Summer 2011 edition of Quinn Quarterly.