A hospital owed no duty of care to future patients of a physician who had left its employ and resumed practicing medicine with another employer, the Massachusetts Supreme Judicial Court has ruled.  Robert Roe, et al. v. Children’s Hospital Medical Center, SJC-11533 (Mass. Oct. 1, 2014).

From 1966 until 1985, Melvin Levine, a pediatric physician, was employed by Children’s Hospital Medical Center (the “Hospital”), a hospital in Boston, Massachusetts.  He relocated to North Carolina in 1985 and began working for the University of North Carolina School of Medicine (“UNC”).  In 2009, amid allegations that he performed medically unnecessary genital examinations on a number of patients at UNC, Dr. Levine signed a consent order surrendering his medical license and agreeing not to practice medicine in any jurisdiction.

Two years later, 11 former patients of Dr. Levine when he worked at UNC filed suit, alleging the Hospital failed to properly train, supervise or discipline Dr. Levine while he was employed by it.  They also claimed the Hospital knew or should have known Dr. Levine conducted inappropriate genital examinations of minors while in its employ, and that it failed to report Dr. Levine’s conduct to the licensing authorities and his new employer (UNC).  A Massachusetts Superior Court Judge dismissed the claims, ruling the Hospital did not owe a recognized duty of care to the plaintiffs since the alleged abuse occurred after (in some cases, many years after) Dr. Levine left the Hospital’s employ.

The Massachusetts Supreme Judicial Court affirmed, holding that no special relationship existed between the Hospital and individuals who became patients of Dr. Levine after his employment with the Hospital ended.  The Court noted that “while the protection of children from sexual abuse is of great importance, an employer’s duty to prevent such harm cannot extend to a duty to prevent the actions of a former employee later employed by an unrelated entity in another State in the decades following his departure from the employer’s employ.” 

In reaching this holding, the Court pointed out there was no allegation that Dr. Levine ended his employment with the Hospital because of any complaints brought against him, and Plaintiffs did not allege that the Hospital misrepresented Dr. Levine’s employment history in response to reference checks or professional qualification inquiries from UNC.  In the circumstances, the Court expressly left open the question of what duty, if any, the Hospital might have had with respect to inquiries from prospective employers about allegations of abuse during the doctor’s employment with the Hospital. 

Despite the heinous nature of the conduct alleged, the Court refused to create a duty of care that would expose hospitals to liability to a potentially limitless class of unknown parties for acts committed by a former employee long after the hospital had any ability to supervise the former employee.  Employers, however, should not read this decision as absolving them of any duty to disclose information about the bad acts of current or former employees during their employment.  Health care employers still should exercise care in determining what information they will share with prospective employers regarding physicians and other health care providers they previously employed.  Courts in other states also may find that a former employer has a duty under their laws to disclose such information to prospective employers.