Legal Eagle Eye Newsletter for the Nursing Profession(5)11 Nov 97

   Quick Summary: A court can find a healthcare facility negligent for hiring or retaining an employee who has a violent or criminal propensity.   It is necessary to prove that the facility knew or should have known of the employee’s dangerous propensity prior to an assault being committed upon a patient.

   This male employee had given care inappropriately to female patients, but the nurse manager addressed and resolved her concerns eighteen months before he assaulted a patient.

   His past episodes of inappropriate caregiving would not put the hospital on notice he was prone to commit a sexual assault.  COURT OF APPEALS OF GEORGIA, 1997.

   A male emergency room technician was accused of sexually assaulting a female patient in the emergency room. The victim filed a civil lawsuit for monetary damages. The civil lawsuit named as defendants the technician, the hospital corporation and the hospital’s emergency room nurse manager.

   The opinion of the Court of Appeals of Georgia in the civil case dealt only with whether it was appropriate to keep the hospital and the nurse manager in the case as defendants. The court ruled the evidence was not sufficient to hold them liable, and upheld their dismissal from the case.

   In general, to hold a healthcare facility responsible for payment of monetary damages in a civil lawsuit for a sexual assault by a hospital employee on a hospital patient, there must be proof the facility knew or should have known, before the fact, of the employee’s likelihood of committing a sexual assault.

   Digging into the technician’s work history, the victim’s attorneys were able to obtain sworn depositions from several nurses who had worked with him in the emergency room. The nurses had complained to the nurse manager that he seemed too eager to assist female patients who were undressing and had stayed in the room with female patients while they were undressing. The nurse manager herself had noted he seemed eager to help female patients on and off a bedpan. The hospital’s practice was that a male caregiver was to help a female patient with this only if extra lifting help was needed due to the size of a particular patient.

   The nurse manager spoke to the technician about these incidents. She indicated how he had acted was not appropriate caregiving, and told him to "watch himself" in the future.

   For eighteen months before the technician sexually assaulted the patient in the emergency room, there were no incidents of inappropriate caregiving or other inappropriate behavior to be found in his work records or from the depositions of the nurses who had worked with him.

   According to the court, there was no evidence a patient had ever voiced a complaint about the technician to the nurse manager or to a staff nurse. The court also noted that the technician had received consistently favorable periodic employment reviews.

   The court ruled the nurse manager was the supervisor at the hospital who was directly responsible for the technician’s conduct on the job. She fulfilled her legal duty by counseling the technician to refrain from his inappropriate caregiving, and by monitoring him to ascertain that his inappropriate actions had ceased. The nurse manager was justified in believing that all of her and the other nurses’ concerns over this employee’s inappropriate behavior had been resolved, the court said.

   Under these circumstances, the hospital was not negligent to retain this employee on its staff or to continue to permit him to be around and to care for vulnerable female patients, the court ruled, even though it became apparent after-the-fact that he did have the capacity for very serious criminal misconduct toward such patients. Bunn-Penn vs. Southern Regional Medical Corporation, 488 S.E. 2d 747 (Ga. App., 1997).

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