Sexual Assault: Court Will Look At Facility’s Risk Management System To Assess Civil Liability.

Sexual Assault: Court Will Look At Facility’s Risk Management System To Assess Civil Liability.

Legal Eagle Eye Newsletter for the Nursing Profession

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A hospital must set up and maintain a risk management system which complies with all the features required by state statute.

After an adverse incident a civil lawsuit by a patient can probe into the issue whether the hospital complied with all of its statutory duties as to investigation of adverse incidents, to determine if such a failure was a contributing factor. DISTRICT COURT OF APPEAL OF FLORIDA January 13, 2017

A patient filed a lawsuit alleging she was sexually assaulted by a mental health technician while she was a mental health patient at the hospital.

The District Court of Appeal of Florida dismissed the allegation that the hospital was vicariously responsible for its employee’s action, which went far outside the scope of his duties as a hospital employee. An employer is only liable vicariously for an employee’s actions within the scope of the employee’s job, like a delivery driver who has a motor vehicle collision while out making deliveries. However, a healthcare institution can be liable in its own right, not vicariously liable for the wrongful actions of another party, when the institution itself is negligent in the performance of a duty imposed on it directly by law.

In this case the patient alleged the hospital’s internal risk management system was not set up in full compliance with all of the required features listed in the pertinent state statute. The patient also alleged the hospital’s response to her assault did not fully meet all of the hospital’s statutory duties toward a patient after an adverse incident befalls the patient. The Court agreed in general terms that the patient’s lawsuit alleged grounds which are theoretically viable as a basis for a lawsuit. However, the completeness or lack thereof of a hospital risk management system on paper or its efficacy in actual practice is a subject which requires ex-pert testimony, which the patient did not have to back her case. Hospital v. Doe, __ So. 3d __, 2017 WL 123783 (Fla. App., 2017).