Mental Hospital Regulation and the Safe Environment: Liability for Sexual Assault

See Musick J. , Patterns of Institutional Sexual Assaults, Response 7(3): 7 (May/June 1984); Musick J. , Sexual Assaults of Patients in Psychiatric Hospitals: Opportunity Structures and Normal Order (unpublished doctoral thesis, University of California at San Francisco) (December 1983).

LeGrand C. Musick J. , Sexual Assault of Patients in Psychiatric Facilities (Grant No. 5-RO1-MH35733 of National Center for the Prevention and Control of Rape, of the National Institute of Mental Health) (more information available from Dr. Musick, Institute for the Study of Sexual Assault, 403 Ashbury, San Francisco, CA 94117).

Private and public hospitals historically were protected from liability for their own negligence by the doctrine of “charitable immunity,” and public hospitals were often protected by governmental immunity. Hospitals were not responsible for acts of negligence by independent contractors on their staff, such as doctors and nurses. In most states, the doctrine of charitable immunity is of negligible importance; governmental immunity is of lessening significance in protecting public entities; and the doctrine of “corporate negligence” has recently evolved to hold hospitals liable for failure to review the performance of medical staff. See Hospital Law Manual (Aspen Systems Corp., Germantown, Md.) (Vol. 2(a) 1983) at 23–33.

Id. at 1–33, citing Federal Tort Claims Act, 28 U.S.C. §1346(b) (federal hospitals); Perry v. Kalamazoo State Hosp., 273 N.W.2d 421 (Mich. 1978); Neal v. Donahue, 611 P.2d 1125 (Okla. 1980) (state rulings protecting state hospitals); Vt. Stat. Ann. tit. 29 §1404; N.H. Rev. Stat. Ann. §§412–3, 507-B (state tort claims acts).

See generally Hollowell E.E. , Liability for Employees’ Intentional Torts: A Growing Concern for Hospitals, Law, Medicine & Health Care 12(2):68–71, 79 (April 1984).

Goodman v. Parwatikar, 570 F.2d 801 (8th Cir. 1978); Vistica v. Presbyterian Hosp., 432 P.2d 193 (Cal. 1967); Maki v. Murray, 7 P.2d 228 (Mont. 1932).

Plaintiffs received favorable judgment or settlement in three of these seven cases. Braun v. County of Contra Costa, No. 191135 (Contra Costa County Super. Ct., Cal. filed September 9, 1978) (out-of-court settlement for four female plaintiffs who complained about four separate incidents occurring in an overcrowded locked ward in a county hospital); Cucalon v. State, 427 N.Y.S.2d 149 (N.Y. Ct. Cl. 1980) (involving a female patient assaulted by an EEG technician in a New York public hospital); Nicholson v. County of Alameda, No. 520001-8 (Alameda County Super. Ct., Cal. filed April 17, 1979) (out-of-court settlement for a female patient sexually assaulted by a male patient in a public hospital ward). Cases examined by the author which were successfully defended by hospitals are Knight v. Colorado, 496 F. Supp. 779 (D. Colo. 1980) (female patient sued a Colorado state psychiatric hospital for an assault by a male patient, in which she was “attacked and kissed and ‘felt up’ without her consent—while both persons were fully clothed;” plaintiff alleged that the hospital breached her constitutional right to adequate care, protection, and treatment, but made no allegations that the assault was either foreseeable or the result of any specific violation of a standard of care); Cornell v. State, 401 N.Y.S.2d 107 (N.Y. App. Div. 1977), aff'd mem., 389 N.E.2d 1064 (N.Y. 1979) (involving a sexual attack upon a male patient by a male staff person in a New York state psychiatric facility; no allegations were made that the assault was foreseeable or that the hospital violated its duty of care); Tolbert v. State, 370 So.2d 166 (La. App. 1979) (fourteen-year-old patient had sexual intercourse with fellow patient in a drinking session soon after she arrived at the hospital; the court found that she was neither mentally ill nor retarded and had consented to the act, and that the hospital did not violate its duty of care by keeping her in the least restrictive environment, pending receipt of her medical record). The final case decided in favor of the defendant examined by this paper is Sawhney v. St. Mary's Hosp., No. 749-920 (San Francisco County Super. February 27, 1979) in which the plaintiff sued for damages from a prolonged sexual assault by a psychiatric technician in a private California hospital's locked ward. The assailant was convicted for rape, but the appellate court reversed the criminal conviction because of errors in the trial proceeding. See People v. St. Andrew, 161 Cal. Rptr. 634 (Cal. App. 1980). When the criminal case came to trial again, he pled nolo contendere, and this plea, by California law, could not be admitted into the civil trial for damages. In the civil trial, there was some evidence of violation of a state regulation in regard to employee evaluation. The jury found the hospital negligent, but did not find the victim's injury to have been legally caused by the assault, perhaps on the theory that the plaintiffs mental illness made any injury impossible to assess. Two other cases examined here are significant, although the ultimate outcomes are unknown. Hipp v. Hospital Authority of Marietta, 121 S.E.2d 273 (Ga. App. 1961) (a nine-year-old sued a Georgia public hospital after an alleged sexual molestation by an employee; the court ruled that governmental immunity would not protect the hospital where it breached its duty to furnish competent employees; here, the hospital had not run a background check on the employee who had been convicted of a “peeping tom” charge); Goodman v. Parwatikar, 570 F.2d 801 (8th Cir. 1978) (involving a beating of one patient by another at a Missouri state hospital; court held that an assault upon a patient can constitute a violation of a hospital's constitutional duty to provide a humane environment).

Complaint at 2-4, Braun v. County of Contra Costa, supra note 7.

Id.

Cal. Admin. Code §§854.8, 855 (West 1984).

Sawhney v. St. Mary's Hosp., No. 749–920 (San Francisco County Super. Ct., Cal. filed February 27, 1979).

Tolbert v. State, 370 So.2d 166 (La. App. 1979).

Knight v. Colorado, 496 F. Supp. 779 (D. Colo. 1980).

Hospital Law Manual, supra note 3, at §2.

E.g., Castillo v. United States, 522 F.2d 1385 (10th Cir. 1977); Burran v. Dambold, 422 F.2d 133 (10th Cir. 1970); Rucker v. Wabash Railroad Co., 418 F.2d 146 (7th Cir. 1969); Home Ins. Co. v. Hamilton, 253 F. Supp. 752 (E.D. Ky. 1966); Cal. Evid Code §669(b)(1) (West Supp. 1984).

E.g., Beals v. Walker, 331 N.W.2d 700 (Mich. 1982); Douglas v. Edgewater Park Co., 119 N.W.2d 567 (Mich. 1963); Conte v. Large Scale Development Corp., 176 N.E.2d 53 (N.Y. 1961).

E.g., Peterson v. City of Long Beach, 594 P.2d 477 (Cal. 1979).

Jorgensen v. Horton, 206 N.W.2d 100 (Iowa 1973). See Restatement (Second) of Torts §448–49 (1965).

KLM Dutch Airlines Holland v. Tuller, 292 F.2d 775 (D.C. Cir. 1961), cert, denied, 368 U.S. 921 (1961); Fannin v. Baltimore and Ohio R.R. Co., 253 F.2d 173 (6th Cir. 1958); Renaldi v. New York, New Haven, and Hartford R.R. Co., 230 F.2d 841 (2d. Cir. 1956).

Schmidt v. Chicago City Ry. Co., 88 N.E. 275 (Ill. 1909); Current v. Columbia Gas of Kentucky, Inc., 383 S.W.2d 139 (Ky. 1964).

Cucalon v. State, 427 N.Y.S.2d 149 (N.Y. Ct. Cl. 1980).

Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970); Shilkret v. Annapolis Emergency Hosp. Ass'n, 349 A.2d 245 (Md. 1975); Hospital Law Manual, supra note 3, at 1 n.1.

E.g., DeJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla. 1973); Ford v. Atlantic Coast Line Railroad Co., 168 S.E. 143 (S.C. 1932), aff'd on other grounds, 287 U.S. 502 (1933); Pratt v. Daly, 104 P. 2d 147 (Ariz. 1940); Huckleberry v. Missouri Pacific R.R. Co., 26 S.W.2d 980 (Mo. 1930); Brown v. Shyne, 151 N.E. 197 (N.Y. 1926); Longstean v. Owen McCaffrey's Sons, 111 A. 788 (Conn. 1920); Stone v. Texas Co., 105 S.E. 425 (N.C. 1920); Texas & P.R. Co. v. Baker, 215 S.W. 556 (Tex. 1919); Hoopes v. Creighton, 160 N.W. 742 (Neb. 1916); Schell v. Dubois, 113 N.E. 664 (Ohio 1916); Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Tauer, 96 N.E. 758 (Md. 1911); Osborne v. McMasters, 41 N.W. 543 (Minn. 1889).

E.g., Conrad v. Tomlinson, 279 N.E.2d 546 (Ind. 1972); Northern Indiana Transit, Inc. v. Burk, 89 N.E.2d 905 (Ind. 1950).

Cucalon v. State, supra note 21.

Id. at 150–51, citing N.Y. Mental Hyg. Law §33-17 (1979).

Cucalon v. State, supra note 21, at 152–53.

E.g., Prest-O-Lite Co. v. Skeel, 106 N.E. 365 (Ind. 1914); Aldridge v. Hasty, 82 S.E.2d 331 (N.C. 1954).

589 S.W.2d 885 (Ky. 1979).

Id. at 887.

E.g., Dayton v. Palmer, 400 P.2d 855 (Ariz. 1965); Moses v. Mosley, 346 So.2d 263 (La. 1962); Rice v. Allen, 309 S.W.2d 629 (Mo. 1958).

E.g., Gigliotti v. New York, Chicago & St. Louis Rd. Co., 157 N.E.2d 447 (Ohio 1958).

E.g., Jenkins v. Ft. Wayne, 210 N.E.2d 390 (Ind. 1965), reh'g denied, 212 N.E.2d 916 (Ind. App. 1966).

Landry v. Hubert, 141 A. 593 (Vt. 1928); Alarid v. Vanier, 327 P.2d 897 (Cal. 1958); Cal. Evid. Code §669 (West Supp. 1984).

Uniform Rule of Evidence §301 (a) (rev. 1974).

Zeni v. Anderson, 243 N.W.2d 270 (Mich. 1976); Smith v. Ohio Oil Co., 134 N.E.2d 526 (Ill. App. 1956); Tarr v. Keller Lumber & Constr. Co., 144 S.E. 881 (W. Va. 1928); Rowley v. City of Cedar Rapids, 212 N.W. 158 (Iowa 1927); Fowler Packing Co. v. Enzenberger, 94 P. 995 (Kan. 1908).

See, e.g., Marusa v. District of Columbia, 484 F.2d 828 (D.C. Cir. 1973).

Milbury v. Turner Center System, 174 N.E. 471 (Mass. 1931); Simonsen v. Thorin, 234 N.W. 628 (Neb. 1931); Terrill v. Virginia Brewing Co., 153 N.W. 136 (Minn. 1915); Rolin v. R. J. Reynolds Tobacco Co., 53 S.E. 891 (N.C. 1906); O'Mara v. Hudson River Railroad Co., 38 N.Y. 445 (1868).

Restatement of Torts (Second) § 288a (1965).

Lucy Webb Hayes National Training School for Deaconesses and Missionaries v. Perotti, 419 F.2d 704 (D.C. Cir. 1969) [hereinafter referred to as Hayes Training School].

Id., citing Regulations to Govern the Establishment and Maintenance of Private Hospitals and Asylums Pursuant to D.C. Code §304 (1967).

Hayes Training School, supra note 40, at 712.

Id. at 710, 712.

See Restatement of Torts (Second) §286 (1965).

Braun, supra note 7.

Id.

Id.

E.g., Hysell v. Iowa Public Service Co., 534 F.2d 775, 780 (8th Cir. 1976); Reyes v. Bantage Steamship Co., 558 F.2d 238 (5th Cir. 1977).

E.g., Brown v. Shyne, 151 N.E. 197 (N.Y. 1926); Cincinnati Street R. Co. v. Murray, 42 N.E. 596 (Ohio 1895).

E.g., Rudes v. Gottschalk, 324 S.W.2d 201 (Tex. 1959).

E.g., Peterson v. Underwood, 264 A.2d 851 (Md. 1970).

See Strange v. Bilbo, 382 So.2d 423 (Fla. 1980); Aldridge v. Hasty, 82 S.E.2d 331 (N.C. 1954).

E.g., Missouri Pacific R.R. Co. v. Davis, 186 S.W.2d 20 (Ark. 1945).

Braun, supra note 7.

Sawhney, supra note 11.

Id. See also Hollowell, supra note 5, at 69–70 (discussing this issue extensively).

Cal. Admin. Code tit. 22, §71545 (1983) (providing that restraints shall be used only when alternative methods are not sufficient or to protect the patient or others from injury and that patients shall be placed in restraints only on the written order of the physician).

Sawhney, supra note 11.

Cucalon, supra note 21.

E.g., Funk v. General Motors Corp., 220 N.W.2d 641 (Mich. 1974); Hardware State Bank v. Cotner, 302 N.E.2d 257 (Ill. 1973).

E.g., Li v. Yellow Cab Co. of California, 532 P.2d 1226 (Cal. 1975); Idaho Code Ann. §§6-801-806 (West 1971); Wis. Stat. Ann. §891.045 (1971).

Braun, supra note 7.

DeMartini v. Alexander Sanitarium, Inc., 13 Cal. Rptr. 564 (Cal. App. 1961).

E.g., Orton v. Gay, 231 So.2d 305 (Ala. 1970).

Tolbert v. State, supra note 12, at 172.

E.g., Eudy v. Atlantic Greyhound Lines, 191 S.E. 85 (S.C. 1937).

E.g., Fitzpatrick v. Bloomington City Railway, 73 Ill. App. 516 (1897).