March 22, 2023
By William Rabb

South Floridians may remember the case of a patient at Westchester General Hospital in Miami, who said she was sexually assaulted by a hospital worker on New Year’s Eve in 2019 while she was sedated. The worker’s trial is set to begin next week.

A federal appeals court last fall held that the wording of the hospital’s general liability policy with Evanston Insurance Co. was ambiguous and that the insurer has a duty to defend the hospital in a $50 million negligence suit brought by the victim and her husband. The civil suit trial is set to begin in April.

It’s not certain that sexual assaults in hospitals are on the rise in Florida and elsewhere around the country. But a study by University of Michigan researchers found that nationwide, the number of patients seeking emergency room treatment for sexual assault increased by more than 10-fold in the 15-year period from 2006 to 2019.

FBI data also show a spike in reported rapes around the country. And some plaintiffs’ law firms continue to point to a 2017 article in the Atlanta Journal-Constitution that found that 3,100 doctors had been disciplined over a 16-year period for sexual misconduct.

It all suggests that across society, for a number of reasons, reports of assault incidents are up, raising new concerns for hospitals and their insurers.

In light of the troubling numbers, Insurance Journal spoke with Scott Mendlestein, managing shareholder of the Falk Waas law firm in Florida. Mendlestein may have a somewhat unique perspective: Over his 22-year career, he has specialized in insurance defense and also has represented some major Florida medical institutions in negligence, liability and sexual assault claims. He was not involved in the Westchester Hospital case, but has kept a close eye on it and others that have influenced how insurance carriers have changed their approach to liability policies and exclusions.

“Nationwide, it’s a hot topic with insurers on whether they are going to cover that or not. Insurers are trying to exclude this type of coverage,” he said.

In Florida, medical facilities and their insurers may have some legal protection. Florida courts and statutes, unlike those in many states, do not recognize strict liability. That is, a hospital is not automatically held liable for all actions of its employees. In many cases, plaintiffs have to show that the culprit employee was acting within the course and scope of his or her employment.

“That’s our primary defense: Hospitals don’t hire people to assault patients,” Mendlestein said.

Sexual assault cases can be emotionally charged and judges may get caught up in that. He noted that a defense lawyer may have to educate a court that Florida law and court decisions don’t generally allow strict liability.

That usually leaves plaintiffs with one line of attack – having to show, as in the Westchester case, that the medical company was negligent in its hiring and supervision of the abusive worker. To help counter that, hospitals must take any suggestion of misconduct very seriously, Mendlestein said.

“There is an affirmative obligation for risk management of the hospital to investigate every allegation of sexual assault and sexual misconduct,” he said. “They are not allowed to tailor the investigation based on the credibility of the accusation. Everything needs to be investigated. Every allegation has to be reported to the administrator of the facility. The patient, the family or the guardian have to be notified and, under appropriate circumstances, the department of health or the monitoring agency for that practitioner also needs to be notified.”

Proper communication with the patient and loved ones can help prevent unnecessary claims and litigation.

“In a hospital setting, we have come to find there are a lot of interactions with patients” that may raise concerns but are actually appropriate or inadvertent in nature, he said.

“A lot of times, a patient may complain that a body part was touched but we’ll find out it was from a lead from an EKG that was being placed, or a garment was being changed, or a bath was given,” the lawyer said. “Depending on the patient population, they may not be used to that. We have found that instructing and educating on communication between providers and patients can go a long way to avoid allegations.”

He noted that sexual misconduct claims have spiked during economic downturns, perhaps from patients down on their luck hoping to win a quick settlement from a false allegation.

And sexual misconduct and misconduct allegations are changing in the modern age. In the not-too-distant past, Mendlestein said, having a female chaperone in the room was enough to satisfy the patient and prevent questions.

“But we’re living in a much different world now. Gender doesn’t make much difference,” he said. “We’re seeing a lot of changes in the allegations being made. Same-sex incidents happen quite a bit now, more frequently than before. And it’s causing institutions to rethink policies about gender and chaperones.”

In the end, educating hospital staff about modern concerns can make the biggest difference, Mendlestein said.

“I really do believe it all starts with orientation and education,” he added. “From the beginning, the more a health system makes it be known that they have a zero-tolerance policy, and teaches staff about risk factors to be on the lookout for, I think there will be better results for patients and employees.”