Legal Review & Commentary

Hospital found to be negligent in rape of female inpatient, $150,000 award given

By Leslie E. Mathews, Esq., MHA

Buchanan Ingersoll & Rooney

Tampa, FL

Barbara Reding, RN, LHCRM, PLNC

Central Florida Health Alliance

Leesburg, FL

News: In 2006, a patient was admitted to a local hospital after she attempted to commit suicide. Shortly after her admission, the patient and her roommate began to socialize with a male patient who was also admitted to their unit. The male patient entered the woman's room in the middle of the night and raped her. The woman sued the hospital for negligence, and a jury found the hospital negligent through its nurse staff and mental health workers. The jury awarded the female patient $150,000 in damages.

Background: A female patient was admitted to a local hospital after attempting to commit suicide. The patient and her roommate began taking walks and playing cards with a male patient in the same unit at the hospital. One evening when the patient and her roommate were getting ready for bed, the male patient came into her room and stated "later today, I'm going to have to come to bed with one of you." A male nurse entered the room, removed the male patient, and warned him not to go into other patients' rooms. He was escorted back to his room; however, no other precautions were taken to prevent him from returning.

Later that night, the male patient re-entered the woman's room and sexually assaulted her. The woman and her roommate testified that she repeatedly asked him to stop. Shortly after the attack, a worker alerted the nursing staff that the male patient was standing in the doorway of his room looking "startled." The nursing staff then placed a desk in the hallway to monitor the patients. Sometime later, the assaulted woman's roommate reported to a nurse that the male patient had been in her room and she "knew what he was doing." The assaulted patient testified that she was too scared to immediately report the attack herself. Instead she confided in her psychiatrist the following morning. The hospital staff then transferred her to the emergency department, where she was evaluated and interviewed by police.

The assaulted patient sued the hospital and alleged one count of negligence. At trial, experts testified that psychiatric patients are a vulnerable population, and hospitals have a higher duty to these patients to keep them safe. One expert indicated that when there is a rule violation on a mental health unit, you do not just tell the offending patient the rule. She testified that the hospital staff must do everything they can to ensure the safety of every patient. The expert also testified that "every time there is a sexual assault on a psychiatric unit, it is due to not upholding the standard of care, which is ensuring the safety of the patient." Another expert testified that "rape is something for which one can watch and that is always preventable." This expert explained that there is a Mental Health Code that outlines what should be done to protect patients, what kind of treatment is allowed, what providers must be careful of, and how to provide a safe environment. The expert agreed that "if a rape occurs in a hospital, it is malpractice and a violation of care."

The jury returned a verdict in the female patient's favor. It found that the hospital was negligent through its nursing staff and mental health workers. The jury awarded the patient $100,000 in non-economic damages and $50,000 in economic damages. The hospital appealed; however, the appellate court has since affirmed the jury's decision.

What this means to you: Emphasis on patient safety in healthcare settings is well publicized through avenues such as The Joint Commission's National Patient Safety Goals (NPSGs), national patient safety organizations' statements and educational publications, Centers for Medicare and Medicaid Services' (CMS') Conditions of Participation, state regulatory requirements, and plaintiff attorneys advertisements. Healthcare consumers are encouraged to be their own healthcare advocate or designate an advocate to ensure their safety and monitor their care when hospitalized in an acute care facility or in a long-term care setting; however, health care providers have a clear duty to ensure the safety and security of their patients.

One NPSG requires hospitals to identify safety risks inherent in its patient population, with no exceptions. In this case, the hospital staff was to evaluate risks inherent in the male and the female patient. NPSG 15.01.01 requires psychiatric hospitals to identify patients at risk for suicide, and the same is true for patients being treated for emotional or behavioral disorders in general hospitals. In this case, a female was admitted to a local hospital after a suicide attempt. As an emotionally fragile patient with a history of attempted suicide, a risk assessment must be conducted to identify specific patient characteristics and environmental features that might increase or decrease the risk for suicide in accordance with NPSG 15. This safety goal also requires the organization to "address the patient's immediate safety needs and most appropriate setting for treatment." Ensuring a suicidal patient's safety includes such interventions as closely and regularly monitoring the patient in person and/or through the use of surveillance equipment and designated surveillance rooms. Visitors must be monitored. A policy and procedure for suicide precautions is imperative. Safety considerations are a must for all patients, and additional monitoring a necessity for suicidal or emotionally fragile patients. Frequent rounding, assessment, and observation are a few ways to provide a safer patient environment.

A breach of duty occurred when a male patient was witnessed entering the female patient's room, was escorted back to his room by a male nurse, and no other interventions were implemented to prevent a reoccurrence of such activity. Only after another staff member later reported observing unusual behavior on the part of the male patient was additional monitoring and securing of the environment put into place. Unfortunately for the female patient, this safety measure was initiated too late.

One could argue that the female patient was responsible for reporting the rape sooner rather than later. One might propose she could have cried out for help when the male patient entered her room or screamed as the violation began to unfold. Given the female patient's emotional state, she might have been incapable of such responses. Such arguments are overruled by the duty to ensure a safe patient environment at all times. Expert testimony supported such a duty. The jury in this case agreed and awarded $150,000 in non-economic and economic damages. The appellate court supported the breach of duty by upholding the jury's decision and holding the hospital accountable.

There is no "reasonable" settlement or award for rape. The effects of rape can be devastating, lifelong, and destructive. So can the experience of a healthcare provider's failure to ensure patient safety. These are among the reasons healthcare providers have an obligation to institute and perform all possible safety measures to provide a secure environment to all who trust in their care.

REFERENCE:

State of Michigan Court of Appeals, Washtenaw Circuit Court LC No. 09-000094-NH