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1984); Musick J., Sexual Assaults of Patients in Psychiatric Hospitals: Opportunity Structures and Normal Order (unpublished doctoral thesis, University of California at San Francisco) (December 1983).Google Scholar

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).Google Scholar

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.Google Scholar

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).Google Scholar

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).Google ScholarPubMed

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).Google Scholar

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).Google Scholar

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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).Google Scholar

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