Hospitals are supposed to be places of healing. Patients who receive care in a hospital are ill, and often weak or vulnerable. They have a right to trust that not only will their medical needs be appropriately addressed, but that hospital staff will not act to harm them. Unfortunately, that trust is misplaced when a hospital employee sexually abuses a patient—and it happens more often than you might want to believe.
In some ways, hospitals offer a “perfect storm” of circumstances in which sexual abuse can take place. There is a steady supply of potential victims, who may be weak, sedated, or unconscious; there is a large number of employees, who may not have been properly trained or screened; patients are frequently examined, bathed, and transported, creating opportunities for abuse; and the setting is bustling and busy, meaning staff can often act without being observed.
Victims of sexual abuse in a hospital setting often feel too embarrassed or ashamed to admit what happened even to their closest loved ones. If you experienced sexual abuse in a hospital, we cannot emphasize enough that you are not at fault. On the contrary, your trust and vulnerability were exploited, and what happened to you may be a form of medical malpractice.
Sexual abuse can be traumatizing, especially when the victim is helpless to stop the abuse or to call for help. This is often the case in a hospital setting. Hospital patients may be especially vulnerable to abuse because of the impact of sedating medication or anaesthesia or weakened by the illness that brought them to the hospital in the first place. Elderly individuals with dementia are frequent hospital patients and may also be victims of sexual abuse.
Abusers take advantage not only of victims’ weakened state, but also the fact that reports of abuse may not be believed if the victim has an altered mental state due to medication, mental illness, or dementia. And because abuse victims are recovering from an injury, illness, or surgery, they may feel too overwhelmed to pursue legal action against the abuser, even if they do tell someone about the abuse.
Sexual abuse is committed by individuals; how does a hospital become liable for an act committed by one of its employees?
The hospital may not be liable simply by virtue of the fact that the perpetrator of the abuse was a hospital employee. Companies can be held liable for the acts of their employees committed in an official capacity or “within the scope of their employment.” If, for example, a transport aide accidentally injured a patient while transporting them to or from their hospital room, that would be within the scope of employment. Sexual abuse is obviously not within the scope of someone’s employment. But that does not mean that a hospital is not liable for the employee’s action. It just may take an experienced medical malpractice attorney to “connect the dots” and demonstrate that the hospital should be held responsible.
For instance, a hospital could be held liable if it hired an individual for a patient care role without doing a thorough background check for a history of criminal or abusive behavior. An example would be a patient care aide who was fired from one hospital for sexually harassing a patient. He applied for work at another hospital, leaving his five-year work history at the previous hospital off of his application.
The human resources department at the second hospital did not inquire about the applicant’s five-year gap in employment history, and so did not contact the previous employer. (Contacting his previous employer would have revealed that he was not eligible to be rehired at that facility.) The applicant was hired at the second hospital, where he subsequently sexually assaulted a patient. Had the second hospital exercised proper care in the hiring process, the abuser would not have been hired and had access to his victim.
In addition to negligent hiring of an abuser, a hospital may be liable for sexual abuse if it is negligent in supervising employees. While a hospital cannot keep eyes on all employees at all times, there should be systems in place to ensure employees are doing what they are supposed to. For instance, in one case, an aide took a patient he was transporting from one floor to another into an unused room and sexually assaulted her over the course of several hours. If a policy had been in place to notify the new floor when the patient was expected, or requiring two people to be present for the transport, there would not have been an opportunity for abuse.
Similarly, a hospital should have policies in place to protect patients in other situations in which they are particularly vulnerable to abuse, such as when they are being bathed or toileted, or when they are heavily sedated or coming out of anesthesia.
Hospitals may also be exposed to liability for sexual abuse for negligently retaining abusive employees. Unfortunately, a hospital may deny or minimize claims of abuse to protect the facility, but in so doing, they also give the abuser cover. A common scenario is for a hospital to use an untrained employee to investigate claims of abuse. The investigator may conclude that the person reporting abuse was hallucinating or otherwise misreporting what occurred, or may fail to properly flag the accused employee’s personnel file in case there are future reports of abuse.
An experienced medical malpractice attorney may be able to uncover a pattern of behavior (or lack of action) on the part of the hospital that would make them responsible for an employee’s abusive actions.
Taking action against a hospital and its staff for sexual abuse can be difficult. You may just want to forget what happened. But taking legal action can do three very beneficial things. By taking action against an abuser and the system that permitted the abuse, you may regain some of the feeling of control that the abuse took from you. You may also be able to recover damages that will help pay for therapy and other needs stemming from the abuse. Lastly, and importantly, taking legal action can hold the hospital and the abuser accountable and help prevent abuse from happening to someone else.
If you have questions about legal action related to sexual abuse in a hospital setting, please contact Huegli Fraser to arrange a consultation. We have, unfortunately, dealt with many instances of sexual abuse by medical professionals, and do our best to approach these cases with the utmost sensitivity and care.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
© 2021 Huegli Fraser PC