Legal Review & Commentary
Male operating room technician inappropriately touched by male surgeon: $60,000 TX verdict
By Jan Gorrie, Esq., and Mark K. Delegal, Esq.
Pennington, Moore, Wilkinson, Bell & Dunbar, PA
News: A young male operating room technician was catheterizing a patient when he was sexually assaulted by the attending surgeon. A jury awarded the plaintiff $20,000 for mental anguish and $40,000 in punitive damages.
Background: The young male operating room technician was showing another scrub tech how to insert a catheter into a completely anesthetized patient when the attending male plastic surgeon entered the room. The surgeon allegedly walked up to the operating table and proceeded to kick the operating room technician in the buttocks. The technician verbally asked the surgeon not to do that again. The surgeon countered by grabbing the technician’s right breast, squeezing it twice, and saying, "My wife just recently divorced me, but I think that you will do just fine."
Following the incident, the technician claimed that he was depressed and feared working with the plastic surgeon again. Despite the presence of numerous witnesses, the surgeon denied that he kicked, inappropriately spoke to, or touched the technician. The surgeon said he had worked with the operating room technician for two years, and that at no time had the tech made any complaints regarding their working relationship.
Because the physician was not employed by the hospital, the facility was not named in the suit. However, the hospital’s medical staff policy touting professionalism was used against the physician. The jury found in favor of the plaintiff and awarded him $60,000 in damages.
What this means to you: "All employees are entitled, by law, to a hostile-free work environment. And, a hostile-free work environment is not mutually exclusive to co-worker to co-worker or employee to employer relationships. The relationships covered address all persons with whom the employees come into contact with in the workplace. Thus, the hostile-free work environment covers contractors such as the surgeon may be categorized, as well as patients, guests, and vendors. The basic principle is that it is the company’s obligation to keep employees free from hostile exposures during work," says Alison M. Johnson, human resources department member, Southeast Region, Motel 6/Studio 6 in Marietta, GA.
While the physician who was the perpetrator in this instance was not a hospital employee, he was an active member of the hospital’s medical staff. There are other instances in which the physician could have easily been either an employee of the facility or contract provider that may have resulted in direct liability against the hospital.
"Based on the facts of the case, particularly given that the incident took place in the presence of several witnesses, the jury believed there was a case of sexual harassment between the employee and a contractor," Johnson says. "Because the staff physician was not a hospital employee, it may not be the responsibility of hospital to provide the doctor with preventive education. That being said, in instances where there is a long-term employee/contractor relationship with the physician or a contract for services in place, the hospital would be well-advised to include those otherwise nonemployed persons in regular training and education on the subject of sexual harassment. The contractor could even be required to sign off on a sexual harassment policy that the hospital has in place for long-term contractors. In this instance, the facility did at least have a hospital bylaw that spoke directly to professionalism, and presumably the physician’s conduct fell outside of that parameter. This has made an impact in the hotel/motel business and should work as well with hospitals, given that both are 24-hour/seven-days-a-week operations that involve regular contact between employees and nonemployees."
"Prevention is the best medicine" is an adage that holds true for sexual harassment in the workplace. "At a minimum, employees should be given continual training education on recognizing and reporting sexual harassment in the workplace. As far as this scenario is concerned, at the point that this employee or the witnesses reported it, the company should have stepped in, investigated, and provided feedback to the claimant on the outcome of the investigation. If there was evidence to substantiate a claim of a hostile work environment, the response provided to the claimant should have included how the hospital planned to handle the investigation. If there was no evidence of a hostile work environment, the feedback could have stated this. In either case, it is a good idea to document to the claimant that the company investigated and that the company appreciates the employee for following the company policy on reporting sexual harassment," Johnson says.
• James Webber v. John Kendall Long, MD, Harris County (TX), District Court, Case No. 1998-50328.