Legal Review & Commentary

Alleged assault not treated: Patient wins $300K verdict

By Jan J. Gorrie, Esq.
Buchanan Ingersoll Professional Corporation
Tampa, FL

News: A patient alleged that an equipment technician sexually assaulted her after she found her buttocks exposed and seminal fluid in her groin area. After reporting the situation to several nurses, the patient was given medication to calm her, and she was discharged quickly thereafter. A Texas jury awarded the patient $300,000 based on the hospital’s failure to provide treatment.

Background: The patient, a 45-year old single woman, suffered from brittle diabetes, which caused her to be hospitalized several times a year. She alleged that during one of her hospitalizations, she was sexually assaulted by a cardiopulmonary equipment technician. The technician had first starting working at the hospital as a kitchen aide, and four years prior to the alleged event had been transferred to his cardiopulmonary tech position. It was his duty to check the oxygen saturation levels of patients who were on oxygen.

The patient was not on oxygen when in the early morning hours the equipment tech entered her room. She awakened to find that her bed covers had been pulled back, her buttocks were exposed, and the technician was standing behind her. The technician attempted to cover her and then quickly left the room. The patient immediately called for her nurse. The nurse, finding the woman very emotionally upset, left to get some medication to calm her. While the nurse was gone, the patient allegedly found seminal fluid on her groin area, which she reported to the nurse when she returned with the medication.

The patient reported the incident to several other nurses to no avail. She was discharged later that day without her allegations ever being investigated nor was she offered anything other than the medications to ease her emotional distress. No counseling was provided by the hospital, and she was not referred to a therapist following discharge.

The patient brought suit against the hospital alleging negligent hiring, negligent job transfer of the technician, negligent supervision of the tech, and failure to have reasonable policies and procedures in place to protect patients. In addition, she claimed that the hospital failed to treat her condition after she had reported the incident to her nurses and that she was treated more as a problem than a patient. She also maintained that the hospital failed to preserve the evidence of the assault and failed to report the incident in her medical record.

The court granted the hospital summary judgment on the claims of negligent transfer and supervision of the technician and the failure to have adequate policies and procedures in place to protect patients on the basis that the assault was a criminal act outside the course and scope of the technician’s employment at the time. However, the case against the hospital on the failure to treat the patient proceeded.

In its defense, the hospital maintained that it was not necessary to document the alleged incident in her medical record because a separate occurrence report had been made, and this in and of itself caused the patient no harm. The hospital also argued that the patient’s nurse had to make a difficult judgment call in a difficult and delicate situation and her actions did not rise to the level of a negligent act. The defendant hospital contended that the failure to preserve the evidence and document the alleged event in the medical record did not cause the woman’s emotional distress. The jury found in favor of the patient and awarded $300,000, finding the hospital was 32% negligent and the technician 68% at fault.

What this means to you: "Fortunately, it is not every day that health facilities are faced with allegations of rape by patients. Because of the rarity of such events as this taking place in a hospital setting, opportunities exist for improving educational efforts among nursing and medical staff," says Patti L. Ellis, RN, BSN, LHRM, risk manager at Pedatrix Medical Group Inc. in Sunrise, FL.

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) considers rape a sentinel event. "Therefore, all allegations of rape in a JCAHO-accredited facility must be investigated. In addition, your jurisdiction may have risk management laws requiring that all allegations of abuse and assault be investigated and reporting to the governing agency," adds Ellis.

"In this situation, the nurse had a duty to her patient to further assess the situation and intervene as the patient’s advocate and report the alleged rape to the patient’s physician, nursing supervisor, hospital security, risk management, and at a minimum advise the patient that she herself could contact law enforcement and report the alleged rape," notes Ellis. The facts of the case raise red flags that should have triggered a more responsive reaction from nursing staff. "The patient’s age and heightened emotional state were signs that the nursing staff should not have discounted," she adds.

With a prompt, appropriate response from staff, "risk management would have been able to interview the patient in a timely fashion. It is critical that the facts — such as time and circumstance of the incident — be obtained as soon as possible and to see if the patient can identify the alleged perpetrator. The staff on duty at the time of the alleged occurrence should also be interviewed by risk management," observes Ellis.

In this instance, the alleged perpetrator was an employee. "Employee background checks at the time of hire are extremely important and should be required as an integral part of the hiring process — particularly if an employee is to have contact with patients. However, pre-screening may not identify a problem employee if there is no prior criminal history. After an employee is accused of wrongdoing, human resources should be involved in the interview and follow-up process of the employee as they may need to place the employee on administrative leave or suspension until further notice," says Ellis.

"Providing the patient with the necessary counseling and medical attention is critical in meeting the needs of the patient both during hospitalization and after discharge. Follow-up with the patient after discharge should have been offered to this patient. Access to rape crisis counselors should be rapidly available and telephone numbers included as a part of the hospital community resource directory if your facility does not have one on site," she notes.

The review and assessment of documentation remains a critical element in risk management’s review. "At the time the incident was reported, it was not necessary that the staff document rape’ in the patient’s medical record; however, it was clear error not to document the fact that the patient was emotionally upset and had reported an alleged cause’ of that condition. Two documents should have been produced — the medical record and the risk management occurrence report — both of which would have provided the hospital with a record of the incident," says Ellis. "Otherwise, it appears that the facility was noncaring and engaged in cover-up.

"The preservation of evidence extends from the record to the patient’s hospital room as bed clothing and linens were part of the crime scene. Here, too, it seems that things were swept under the tile. Had law enforcement been summoned, they would have taken custody of any pertinent evidence. Documentation of chain of custody is an important part of the risk management record, and here there was nothing left to document," she states.

"While such situations are rare in the hospital setting, staff need to be prepared and know what to do in such situations. Risk management should include education to nursing personnel and medical staff on proper document of such events. Rape counselors are a good resource in this regard," concludes Ellis.

Reference

• Tom Green County (TX) District Court, Case No. A-99-0132-C.