Discussion 05.2: Sexual Assault
HA4050D – Healthcare Law
Discussion 05.2: Sexual Assault
Read the Discussion 05.2 Scenario. We will debate the question:
.Was the nurse acting within the course and scope of employment, such that the hospital should be liable? Or, were his outrageous actions toward the patient so far removed from his job duties that it would be unfair to hold the hospital liable in this case?
We will divide the class into two groups:
.Group 1: Students with last names starting with the letters N-Z will argue that the nurse acted within his course and scope of employment and that the plaintiff should win.
.Group 2: Students with last names starting with the letters A-M will argue that the nurse’s conduct was outside his course and scope of employment and the defendant should win.
Each group member is required to debate their position based upon facts and research. Fully explain your reasoning, using legal principles you have learned and applying them to the facts of this case. Opinions offered without evidence do not belong in this debate. Defend your position by citing research, such as a page of the textbook or an outside source.
DISCUSSION 05.2: SEXUAL ASSAULT
SCENARIO (BASED ON A REAL GEORGIA CASE)
A male patient underwent a surgical procedure at a hospital to insert a sheath into an artery of his
groin. A male nurse who was an employee the hospital was instructed to attend to the patient postsurgery to check the groin area for complications and to clean the area as necessary.
While in the room alone with the patient, the nurse sexually molested the patient. The patient awoke to
discover the nurse rubbing his penis with both hands. The patient screamed, and multiple employees
quickly arrived, catching the nurse in the act. The nurse was arrested and convicted of sexual assault in
a criminal proceeding.
In a separate civil suit, the patient and his wife sued the hospital under the doctrine of respondeat
superior for assault, battery, and loss of consortium.
Obviously the nurse himself is civilly (and criminally) liable in this case. However, the only question
before us now is the liability of the hospital, the nurse’s employer. To state a claim under respondeat
superior, the plaintiff must prove BOTH:
1. That the nurse was an employee of the hospital (this is not in dispute), AND
2. At the time of the incident, the nurse was acting within the course and scope of his
employment (very much in dispute).
This is actually a close case. The hospital argues that the nurse’s job duties obviously did not include
molesting patients. The plaintiff argues that the nurse was expected to attend to the patient’s genital
area and that this kind of incident was clearly foreseeable by the hospital.
(Note: If you would like to see the real case this scenario is based upon, check out Piedmont Hosp., Inc.
v. Palladino, 580 S.E.2d 215 (Ga. 2003). Be warned—the scenario has altered the facts from the original
case. Do not rely upon the real case opinion in formulating your answer to the fictional scenario in the
discussion question.)
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