Every instance of Florida sexual assault of a patient by a healthcare provider is an egregious breach of trust and professional ethics. For doctors, it’s a violation of the sacred Hippocratic Oath to “first, do no harm.” But can it be considered “medical malpractice?”
Medical malpractice is a type of civil claim. But not all civil claims against healthcare providers or institutions are necessarily for malpractice.
Our West Palm Beach civil trial lawyers are experienced in the successful handling of both civil sexual assault cases and medical malpractice claims in South Florida. While each case is fact-specific, we generally frame patient sexual assaults as torts of general negligence rather than medical malpractice.
For one thing, it can be argued that sexual assault does not “arise out of” the administration of healthcare, for which a breach of duty is governed by applicable standards of care. It’s an intentional act by the accused perpetrator, and one that may have been reasonably foreseeable/preventable had the facility and/or employer exercised a reasonable degree of basic oversight/security.
Beyond this, Florida medical malpractice claims are held to much more rigorous standards for proof burdens, allowable evidence, and timelines. There are a lot more legal and procedural hurdles to clear just to get your foot in the door with a medical malpractice claim compared to other types of civil claims. Prevailing in medical malpractice cases also requires more time, resources, and legal expertise.
Defendants in medical malpractice cases also may not be required to pay out as much as those sued for ordinary negligence. While Florida has no caps on medical malpractice injury economic damages (compensation for things like medical bills and loss of income related to medical negligence), it does cap non-economic damages for things like anxiety, mental anguish, trauma, pain and suffering, and loss of companionship. The cap is set at $500,000 for practitioner defendants, such as doctors and nurses, and $750,000 for non-practitioner defendants, such as hospitals and healthcare systems (assuming the victim wasn’t left dead or in a vegetative state, in which case, the damage award goes up slightly). Non-economic damages are often a big part of damages sought in Florida civil sexual assault cases.
The end result of requiring these of sexual assault to be filed as medical malpractice is that victims have have a tougher time filing and establishing liability. They’ll pay more to do so, wait longer for justice, and likely be compensated less.
Recently, reporters with ProPublica and The Salt Lake Tribune reported on this phenomenon in Utah. The expose detailed the nearly-five-decade career of a doctor who faced civil lawsuits by 94 former patients who accused him of sexual assault. Several of those claims have been dismissed because a lower court judge has held they should be filed as medical malpractice claims – and the filings fall short of the more stringent standards for such cases. The Utah Supreme Court has granted review of appeals by several of those plaintiffs. But if the lower court’s ruling stands, it will also mean foreclosing on many future claims, because the statute of limitations for medical malpractice claims in those states is shorter than for ordinary negligence. It will also mean that even successful cases would be subject to the medical malpractice damage caps.
Here in Florida, courts have ruled both ways.
Florida Court Rulings on Health Care Sexual Assaults as Medical Malpractice Claims
In this 1994 case, Florida’s 3rd District Court of Appeal held that a dentist’s sexual assault of a patient did not fall within the professional services coverage of his professional liability insurance policy, as it was not causally connected to the provision of special services, regardless of the pretense of medical care used by the dentist to prey on the patient.
In this 1999 case, Florida’s 4th District Court of Appeal affirmed a trial court’s dismissal of a plaintiff’s claim that a healthcare facility negligently retained/supervised an employee who sexually assaulted a patient. The court held that pre-suit notice and screening requirements under Florida’s medical malpractice law apply to claims against a health care facility for negligent supervision or retention of a doctor accused of sexual misconduct during a medical examination. Other district court rulings conflicted with that ruling.
In this 2005 case, Florida’s 4th District Court of Appeal receded from its earlier position in O’Shea. Plaintiff in that case reported she was violently sexually assaulted by a doctor while receiving treatment for joint pain. The attack left her with permanent injuries. Plaintiff and husband filed a claim against the healthcare facility, alleging negligent supervision and retention of an employee. The 4th DCA ruled such claims do not “arise out of the rendering of medical care or services.”
In this 2017 case, Florida’s 2nd District Court of Appeal weighed in on a summary judgment request by a health care facility accused on two counts of failure to protect a patient from sexual assault by an employee. The tech was reportedly able to enter and leave victim’s room to assault her several times in one night, and allegedly engaged in highly suspicious activities in the common areas without detection. The facility argued the lawsuit should have been filed as a medical malpractice claim, not one of general negligence. The court held that the first count of the complaint was not a matter of medical negligence. That count pertained to facility’s alleged breach of duty to use reasonable care to protect vulnerable, high-risk patients from the foreseeable risk of sexual assault by failing to have procedures in place to identify suspicious behaviors that would indicate an assault. It did not “arise out of any medical, dental, or surgical diagnosis, treatment, or care.” However the second count involved the facility’s alleged failure to provide a risk management plan and assure competent personnel complied with that plan, in accordance with F.S. 766.110 – a provision of law specifically pertaining to Florida medical malpractice cases. Therefore, the appellate panel ruled the second count should have been filed as a medical malpractice case.
Bottom line: It’s important that if you’re going to pursue a civil claim for damages against a healthcare facility, doctor, or other healthcare provider for sexual assault, abuse, or misconduct, your legal team will need to proceed with great skill and meticulous care. Working with a law firm that has a proven track record of success Florida civil claims for sexual assaults in medical settings is an imperative.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
94 Women Allege a Utah Doctor Sexually Assaulted Them. Here’s Why a Judge Threw Out Their Case. Feb. 22, 2023, By Jessica Miller, The Salt Lake Tribune & ProPublica
More Blog Entries:
Justice for Florida Sexual Assault in Health Care Settings, Dec. 15, 2022, South Florida Injury Lawyer Blog