Recently, there have been a slew of stories in the media highlighting instances involving sexual assault while a patient is under anesthesia or sedated. Many of these stories involve medical doctors, dentists, or anesthesiologists who committed these heinous crimes against their own patients. But what about the medical providers who employ these medical professionals? Should they also be held responsible for the professionals’ unfortunate and unforeseen actions? Going even further, what if the assailant committing these crimes is not even employed by the medical provider, but is merely an independent contractor with no prior complaints of sexual assault? Should the medical provider be held responsible for the actions of an independent contractor when it had no prior knowledge of any similar acts regarding the wrongdoer?
Recently, the Supreme Court of Georgia addressed what liability may exist for a dental practice following the sexual assault of a patient by an independent contractor. In Goldstein, Garber & Salama, LLC v. J.B., 300 Ga. 840 (2017), a patient brought a negligence action against a dental practice to recover for the sexual assault by a nurse anesthetist while under anesthesia at the dental office of GGS. In that case, the nurse anesthetist was hired by GGS as an independent contractor through an anesthesia staffing agency. Through its standard practice, that agency conducted an independent credentialing process on the anesthetist prior to placing him at any facility. On September 16, 2009, J.B. came to GGS’s office for an outpatient dental procedure. The nurse anesthetist administered J.B. anesthesia and kept her in a heavily sedated state for approximately two hours. At some point, J.B. was left alone with the nurse anesthetist, wherein he made three brief videos of himself sexually molesting her. These videos were subsequently discovered, in addition to other videos of the same nurse anesthetist molesting other patients. GGS had no knowledge of anything in the nurse anesthetist’s record that indicated he might harm or otherwise molest a patient.
J.B. filed suit against GGS for claims of negligence per se and professional negligence (J.B. also filed suit against the nurse anesthetist but subsequently withdrew them after he pled guilty to numerous related criminal charges). At trial, the Court denied GGS’s motion for directed verdict, and the jury awarded J.B. $3.7 million dollars and apportioned 100% of the liability to GGS and none to the non-party nurse anesthetist. On appeal, the Georgia Court of Appeals affirmed the trial court’s decision to deny the motion for directed verdict. In making this decision, the Court found that the nurse anesthetist sedated J.B. at an unnecessarily deep level and for two hours more than necessary, which made her a vulnerable target. It also found that the supervising dentists had not undergone the training or earned the certifications required of dentists who would supervise nurse anesthetists. Based on this evidence, the Court determined that there were jury questions as to whether it was foreseeable that the GGS dentists' failure to discharge their statutory duties and professional obligations would make J.B. vulnerable to the predation she suffered. Goldstein, Garber & Salama, LLC v. J.B., 335 Ga. App. 416, 420 (2015).
Further, the Court of Appeals specifically noted that it was not persuaded that the nurse anesthetist’s criminal intervening acts compelled a determination that GGS could not reasonably have foreseen them, even though it conceded that there was no evidence that GGS knew of the nurse anesthetist’s previous assaults on patients. In making this decision, it relied on expert testimony that the dental profession is aware that sexual assaults on patients do occur and actively seeks to prevent them. Based on this expert testimony, the Court of Appeals determined that GGS could have foreseen the nurse anesthetist’s intervening criminal acts. Id.
But the Supreme Court of Georgia determined that the Court of Appeals ruled incorrectly, and that the trial court should have granted GGS’s motion for directed verdict. It found that the assault could not reasonably have been anticipated, apprehended, or foreseen by the dental practice and that the dental practice was not liable for the assault. The Supreme Court agreed with the Court of Appeals’ decision that the nurse anesthetist’s criminal acts clearly intervened between any breach of duty by GGS and the injuries to J.B., and that those injuries would not have occurred without his criminal acts. But the Supreme Court disagreed with the Court of Appeals on whether the nurse anesthetist’s intervening criminal acts were foreseeable to GGS.
While the Supreme Court agreed that the general dental profession is aware that sexual assaults of sedated patients can occur, and recognizes that such events should never happen, it determined that this alone does not alone convert GGS's alleged breach of its duty to properly supervise the nurse anesthetist into liability on GGS's part, nor does GGS's failure to ensure that a recovering patient be attended by a second appropriately trained person. Goldstein, supra at 843. Rather, the Supreme Court determined that for any such breach to be considered the proximate cause of J.B.'s injuries, the nurse anesthetist’s criminal acts must be the probable or natural consequences of that breach, and it must be the case that those criminal acts could reasonably have been anticipated, apprehended, or foreseen by GGS. Id. The Court held that in this case, the nurse anesthetist’s criminal acts could not be considered foreseeable.
Clearly, there is much dispute about whether a facility can be held liable for criminal acts, such as sexual assault, committed by an independent contractor when the facility has no prior knowledge of wrongdoing by that particular actor. But Georgia’ highest court has recently determined that a facility cannot be held liable when these acts were unforeseen. And even though the medical profession as a whole is aware that sexual assaults of sedated patients can occur, this alone does not constitute foreseeability on behalf of the provider. In Goldstein, because the sexual assault committed by an independent contractor was not foreseeable, the provider could not be held liable.