South Florida sexual assault lawyer

Is Florida Doctor Sexual Assault Medical Malpractice?

September 10, 2023 | by David J. Halberg, Esq.

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?” Florida civil sexual assault attorney Palm Beach

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

Some examples: Continue reading

Can You File a Florida Sexual Assault Lawsuit Against the U.S. Coast Guard?

March 17, 2023 | by David J. Halberg, Esq.

Recently, an investigation by CNN spotlighted systematic issues with sexual assaults involving merchant shipping crews and the U.S. Coast Guard personnel responsible for policing them. As longtime civil trial lawyers representing survivors of sexual assault in South Florida, we’ve seen some confusion about how whether U.S. military branches can be sued in civil court for sexual assaults – and by whom. Florida sexual assault lawsuit

Most Florida sexual assault lawsuits name third parties as defendants. These are businesses or organizations or government agencies or employers that had a duty to protect the victim and failed to do so. This negligence is grounds for sexual assault survivors to pursue monetary damages for physical injuries, medical bills, lost wages, pain and suffering, mental anguish, emotional distress, etc.

With the U.S. military, it’s a little trickier – depending on who is trying to pursue damages. Sexual assault has been a pervasive and long-standing problem in all military branches. According to the 2021 U.S. Department of Defense Annual Report on Sexual Assault in the Military, the number of sexual assault reports spiked by 13 percent compared to the previous year. Although officials claim steady increases in sexual assault reporting indicate that survivors are more comfortable coming forward, anonymous surveys of troops don’t bear that out. They show that sexual abuse and unwanted sexual contact is on the rise, but fewer are reporting it, and fewer perpetrators are legally punished. Among female service members, 8 percent reported experiencing unwanted sexual contact in 2021. For men, it’s 1.5 percent.

Suing the Military for Sexual Assault is Complicated

Historically, military members haven’t been able to sue for sexual assault that occurred while they were serving. As our West Palm Beach sexual assault lawyers can explain, the U.S. government has for more than 70 years leaned on the Feres doctrine, which bars troops from seeking monetary damages in civil court for injuries sustained in active duty service. The one exception is medical malpractice.

However, that may be changing. Last year, the U.S. Court of Appeals for the Ninth Circuit ruled in Splestoser v. Hyten et al that the Feres doctrine (named for a U.S. Supreme Court ruling) was intended only to prevent troops from suing the federal government over injuries sustained in training and combat. It was not, the three-judge appellate panel ruled, intended to apply to sexual assault – because sexual assault doesn’t “conceivably serve any military purpose.”

The Splestoser case definitely moves the needle, but that doesn’t mean the legal floodgates are entirely open. The plaintiff in Splestoser is suing her attacker directly (for an intentional tort) as opposed to the U.S. military directly for some sort of negligence. The alleged assailant is arguing this was under the military’s jurisdiction. His argument is that he shouldn’t be held liable, the military should. But either way, this case opens the door potentially to allowing sexual assault survivors to sue the military and the U.S. Department of Defense (DOD). The ruling sets a precedent, but there’s no guarantee other federal appellate courts will decide the same. (This was in the 9th Circuit Court of Appeal, while Florida is part of the 11th Circuit.) It’s possible other circuits could decide differently in the face of a similar challenge. If that happens, the conflict will have to be certified to the U.S. Supreme Court for resolution.

This brings us to the case highlighted by CNN involving a military academy student aboard a marine merchant ship overseen by the U.S. Coast Guard. (Worth noting: The DOD reports sexual assaults and harassment are on the rise in military academies as well. There were 155 formal reports made during the 2021-2022 school year, though officials suspect hundreds more went unreported.) This case involves a U.S. Merchant Marine Academy student (attending a federal service academy), a private marine merchant, and an employee for that private marine merchant. The U.S. Coast Guard is under fire here because it is supposed to be responsible for law and order on this commercial ship and thousands of others in American ports and waterways. Further, the U.S. Coast Guard vets mariners and offers continued monitoring and enforcement of misconduct on land or while on-the-job. A serious offense could result in the marine merchant being stripped of their credentials. If a merchant mariner is accused of a crime on a U.S. flag ship, it’s the U.S. Coast Guard’s law enforcement division responsible for investigating and pursuing criminal charges. The Coast Guard also has a whole separate administrative division with the duty to investigate misconduct and strip a mariner of credentials for egregious offenses. Continue reading

Uber Accused of Failing to Protect Riders From Sexual Assault

December 28, 2020 | by David J. Halberg, Esq.

A judge in California recently fined rideshare giant Uber nearly $60 million and threatened to suspend its license to operate in the state if the company refuses to pay the penalty and respond within 30 days to questions regarding the company’s records on sexual assaults. South Florida sexual assault lawyer

As our South Florida civil trial sexual assault lawyers know, a safety report released by the company last year revealed some 6,000 sexual assaults that were reported to Uber in connection with rides between 2017 and 2019.

As a public service provider, Uber and other ridesharing companies undoubtedly have some responsibility to keep customers safe. The extent of this responsibility, though, is part of what is being litigated in hundreds of sexual abuse lawsuits across the country. Continue reading