Hospital Not Liable in Nurse’s Sexual Battery Against Patient

By | June 5, 2024

A Virginia hospital is not vicariously liable for a sexual molestation committed by one of its nurses against a patient because the nurse’s actions were clearly outside the scope of his employment duties and were personally motivated.

A patient sued the Potomac Hospital and the nurse for sexual battery. She argued that Potomac was vicariously liable for the nurse’s actions under the doctrine of respondeat superior and agency.

The case went to a trial where after all the evidence was presented, the trial court judge agreed to strike the evidence against the hospital and dismiss the hospital from the case. The trial court ruled as a matter of law that the nurse was not acting within the scope of his employment when he assaulted the female patient and thus the employer could not be held vicariously liable.

The jury then returned a verdict in the patient’s favor, awarding her $500,000 in damages against the nurse.

The patient appealed the trial court’s dismissal of the hospital from the case, arguing that the facts left open the possibility that the nurse was engaged in a nursing duty and, as a result, the case involving the hospital should have gone to the jury.

This characterization, however, overlooked the patient’s own testimony that the nurse’s actions were not within his duties, and the evidence of the personal motive of the nurse, according to a three-judge panel of the Virginia Court of Appeals, which upheld the trial court’s ruling.

The trial court had the benefit of the complete record of the six-day trial, precisely the same evidence the jury would consider in its role as factfinder. Although the court was not permitted to make factual findings, it was entitled to examine the patient’s version of the facts and the undisputed evidence and to rule as a matter of law, the appeals court found.

The appeals panel agreed with the trial court that the nurse’s deviation from his employer’s mission was “marked and unusual” and therefore did not present a question for the jury.

Case Background

The patient was admitted to the cardiac unit with apparent complications from her HIV-positive status. Because she was receiving morphine for pain, she was considered a fall risk and was not allowed to get out of bed to go to the bathroom. As a result, she was dressed only from the waist up, with “no bottoms” so that she could easily use a bedpan. At no time did any nurses help her with the intimate tasks or her personal hygiene. She was classified as a “self-care” patient and was able to do those things on her own.

She had electrodes attached to her chest that were connected to a box located beneath her clothing that transmitted data about her heart function. Neither the patient nor the nurse claimed that the nurse was engaged in any duties involving the telemetry box when the sexual assault took place.

She said the nurse talked to her about HIV and AIDS and told her he knew people who were HIV positive and “it was okay for them to have sex.” After he finished administering her morphine, she said he reached underneath her shirt and touched her breasts, at which point she told him to stop. He then stuck his fingers inside her vagina, and she said she again told him to stop.

She told another hospital nurse what had happened and the hospital reported her complaint to the police.

The nurse testified that he told her that while “some nurses are not comfortable taking care of HIV patients,” he was “comfortable” caring for her. He said he discussed her HIV status with her to encourage her to take her medicine. He also recommended an HIV clinic for additional treatment and support. He presented evidence from a registered nurse that a nurse’s job includes providing patient education, which could encompass the topics of coping with HIV and having safe sex. He specifically denied sexually assaulting her in any way and agreed that any touching as alleged would be inappropriate, against hospital policy, illegal and not empathetic.

An expert witness for the hospital testified that the patient’s medical records did not include any order that would justify the nurse’s alleged body contacts.

Under the concept of respondeat superior, an employer is liable for the tortious acts of an employee if the employee was performing the employer’s business and acting within the scope of his or her employment. Also, there is a rebuttable presumption that an employee was acting within the scope of his employment when an employment relationship is alleged.

Motion to Strike

In making its motion to strike the evidence, Potomac argued that the plaintiff defeated the presumption with her own evidence that the nurse acted “significantly outside of what he was supposed to be doing” and had “a bad motive.” Potomac also asserted that the only evidence of the nurse’s state of mind was “his own words” that touching a patient in the fashion alleged was against hospital policy, against the law, and not empathetic. Potomac reasoned that if the jury determined the nurse touched the patient in the way she said he did, it could not also find he was acting in compliance with the employer’s mission.

In agreeing to the motion to strike, the trial court acknowledged the nurse’s testimony that he was trying to comfort the patient but cited an absence of “any sliver of evidence” that would connect the nurse’s duties or “acts of claimed compassion” to the sexual assault itself. It further held that a sexual assault was “a marked deviation” from the hospital’s business and that the nurse’s motive “must have been his own” rather than his employer’s. As a result, the court concluded, no evidence showed that the nurse’s sexual assault occurred in the scope of employment.

Related: With Sex Assault Cases on the Rise, Insurers Tighten Hospital Liability Exclusions

The plaintiff appealed, maintaining that the evidence left in doubt whether the nurse was acting within the scope of his employment when he sexually battered her and, as a result, the case should have gone to the jury.

The appeals court answered that it is not enough to show merely that the employee was “on the clock,” using the employer’s property, or on the employer’s premises at the time of the alleged tortious acts. The court cited a 1954 case upholding a motion to strike on behalf of a hotel after its bellboy shot someone in the hotel’s elevator because the shooting resulted from a personal dispute unrelated to the bellboy’s operation of the elevator or any of the employee’s duties.

The court said the rule is: If “the deviation from the employer’s business is slight on the one hand, or marked and unusual on the other,” the trial court may resolve the issue as a matter of law, the court stated. If, by contrast, the deviation “falls between those two extremes, the question is for the jury.”

Additionally, the appeals court stressed, the employee’s motive in committing the tortious act plays a role and in “many cases, perhaps most,” an employee’s intentional torts are purely personal acts and thus not within the scope of employment.

The court found that there was evidence that the sexual acts occurred after the nurse told her that “she had a beautiful body” and “he was aroused by looking at” her naked body. Also, the fact that the nurse obtained the patient’s phone number without her knowing further indicated that the nurse “was on his own mission rather than that of his employer.”

The appeals court opinion, written by Chief Judge Marla Graff Decker, concluded that the record supported the trial court’s ruling that the evidence was insufficient as a matter of law for the jury to conclude that Potomac was liable for the nurse’s intentional tort under respondeat superior principles.

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