Employment Law Daily Hospital may be liable for sexual harassment, but not sexual assault by physician with staff privileges
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Thursday, March 28, 2019

Hospital may be liable for sexual harassment, but not sexual assault by physician with staff privileges

By Nicole D. Prysby, J.D.

Even though a physician was not directly employed by the hospital, it could be liable for his sexual harassment of a hospital employee, but not his sexual assault of the employee.

A hospital may have exercised sufficient control over a non-employee physician who held staff privileges at the hospital to be liable for claims of negligent hiring, retention, or supervision arising from his alleged sexual harassment of a hospital employee, held a federal court in Connecticut. However, the hospital was not vicariously liable for the physician’s sexual assault of the employee, as it fell outside the scope of the agency relationship between the physician and hospital. The court also found that the limitations period could be tolled under the continuing course of conduct doctrine because there were fact questions about whether the hospital was negligent in its initial decision to hire the physician, and about its duty to more closely supervise or terminate him (Henry v. Bristol Hospital, Inc., March 25, 2019, Underhill, S.).

Sexual assault, sexual harassment. The employee was a patient of the physician and, during a June 2011 visit to his office in the hospital, the physician sexually assaulted her. He then continued to sexually harass her at the hospital during business hours. In September 2012, the employee reported the sexual assault to her boss. Human Resources opened an investigation and suspended the physician pending the outcome. He denied the bulk of the charges but did admit that he had kissed and fondled the employee. Based on this admission, the hospital terminated the physician.

The employee sued the hospital, alleging that it was negligent in hiring, retaining, and supervising the physician while he held staff privileges at the hospital, and that it was vicariously liable for his conduct. (Her Title VII sexual harassment claim had already been dismissed, and a default judgment entered against the physician.)

Continuing course of conduct. The employee filed her complaint within two years of the sexual assault but failed to serve the employer until five months later, outside the window. The employer thus argued that the claims were untimely because they were not brought within the two-year limitations period. The employee countered that the limitations period did not begin to run on the date of the assault but on the last date that the physician sexually harassed her, because her negligence claims arose out of the hospital’s “continuous course of conduct.” The employer also argued that the continuing course of conduct doctrine did not apply because there was no evidence it breached a duty owed to the employee.

The court held there were fact questions about whether the employer breached a duty to the employee when it hired the physician, as well as to its duty to fire or more closely supervise the physician after the date of the assault. The employee presented evidence that the hospital knew that the physician had been terminated from two previous positions for professional misconduct and that it had been warned about the physician’s misconduct toward female staff years earlier (as early as 2010) and failed to take action. Whether the hospital should have known that a sexual assault was foreseeable based on the prior claims was a question of fact.

There was also a question of fact as to whether the hospital should have fired the physician before the assault, given the numerous complaints detailing his sexual misconduct (which included allegations from a female employee that he had touched her inappropriately). His misconduct continued up until the time he was fired in 2012. Because the hospital’s duty not to hire, retain, or negligently supervise the physician continued until his termination, the continuing course of conduct doctrine applied.

Hospital may be liable for negligence. The hospital also argued that the negligence claims against it must fail because the physician was not employed by the hospital but merely had staff privileges there. However, the employee contended that the physician’s contract authorizing him to perform surgeries at the hospital binds his conduct to the hospital. The court sided with the employee, finding that a jury could conclude that the hospital exercised sufficient control over the physician to be liable for negligent hiring, retention, or supervision. The hospital was ultimately responsible for hiring and retention decisions made, and all accusations of misconduct against the physician were investigated by the hospital. Therefore, a reasonable jury could find facts sufficient to hold the hospital liable for the physician’s actions even though he was not directly employed by the hospital.

Hospital not liable for sexual assault claim. However, the employee’s claim that the hospital was vicariously liable for the sexual assault failed because the physician was acting outside the scope of his duties as a surgeon when he assaulted her. Sexual assault is outside the scope of an agency relationship between physician and hospital; therefore, the hospital could not be liable, the court held.

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