Louisiana Appellate Court Rules Certain Allegations Against Hospital ER Employee For Sexual Assault Of Patient Are Medical Malpractice Claims

The State of Louisiana Court of Appeal, Third Circuit (“Louisiana Appellate Court”) ruled in it decision dated May 27, 2020 that certain allegations in the plaintiff’s petition alleging that an emergency room technician employed by the defendant hospital sexually assaulted a patient in the hospital “must be reviewed by a medical review panel before the lawsuit can commence pursuant to the Louisiana Medical Malpractice Act [“LMMA”] .. we find that the claims of Plaintiff alleging Defendant LCMH’ s potential liability in its failure to properly supervise, failure to properly train, failure to perform proper background checks, failure to take positive action to prevent the incident, and failure to provide Plaintiff a safe and secure environment after his admission to the hospital do fall under the umbrella of the LMMA.”

The Louisiana petition alleges intentional sexual battery committed by the defendant hospital employee and stated, in part: “Zeno is liable to Mr. Shaikh for his actions in “engaging, and attempting to engage, in non-consensual sexual acts with Plaintiff’ and that Defendant LCMH is “vicariously liable for all wrongful acts perpetrated by Defendant-JOHN ZENO as described herein.”” However, the petition also asserts that Defendant Zeno’s “acts of fault causing damage to Plaintiff’ include not only the “[i]ntentional offensive, harmful, and unwanted sexual contact with Plaintiff’ but also include “[f]ailing to follow the proper standard of care”, “[f]ailure to provide Plaintiff-ALEX SHAIKH a safe and secure environment after being admitted”, and “[o]ther acts to be shown at the time of trial.” As to the defendant hospital, the petition alleges that in addition to respondeat superior liability for the intentional acts of Defendant Zeno, it is liable to the plaintiff as a result of its failure in the proper training and supervision of its healthcare employees and failing to provide a safe environment for patients.

The Louisiana Appellate Court stated: “We note that the appeal here is limited to the allegations of negligence against LCMH [the defendant hospital] and its employee Zeno and does not include the claims related to Zeno’s potential liability for intentional sexual battery and the potential liability of LCMH pursuant to the doctrine of respondeat superior for Zeno’s actions. As to the intentional tort claims and the potential respondeat superior liability, the trial court denied the exception of prematurity. Boiling down Plaintiff’s negligence allegations to their essence, Plaintiff alleges that Zeno failed to follow the proper standard of care and failed to provide Plaintiff a safe and secure environment after his admission to the hospital. As to LCMH, Plaintiff alleges that it failed to properly supervise, failed to properly train, failed to perform proper background checks, failed to take positive action to prevent the incident, and failed to provide Plaintiff a safe and secure environment after his admission to the hospital. The resolution of the issue of whether Plaintiff’s negligence claims against Defendants are “malpractice” as defined in the LMMA rests on statutory construction; are these actions, if proven as true, medical malpractice as defined in La.R.S. 40:1231.l(A)(l3).”

The Louisiana Appellate Court stated: “The undisputed evidence is that Zeno was employed by the hospital at the time of the incident as a hospital emergency room technician and that LCMH is a qualified health care provider pursuant to the LMMA. An employee may be covered by the LMMA, and considered qualified, if included in the insurance coverage provided to a qualified health care provider, as is the case here.”

To determine whether certain conduct by a qualified health care provider constitutes “malpractice” as defined under the LMMA, the Louisiana Supreme Court has utilized the following factors:

[l] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill,
[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, []
[3] whether the pertinent act or omission involved assessment of the patient’s condition[,] …
[4] whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
[5] whether the injury would have occurred if the patient had not sought treatment, and
[6] whether the tort alleged was intentional.

The Louisiana Appellate Court stated: “Plaintiff alleges failure to properly supervise, failure to properly train, failure to perform proper background checks, failure to provide the proper standard of care, and failure to provide Plaintiff with a safe and secure environment. Plaintiff was brought to the hospital for the purpose of receiving medical attention. It is undisputed that Zeno was an emergency room tech and employed by the hospital. At the time of injury, he was following the instructions of the nursing staff and providing care and treatment to a mental health patient up until the time of the alleged sexual assault against Plaintiff.”

The Louisiana Appellate Court held: “Based upon our review of the facts and the law applicable hereto, we find that the claims of Plaintiff alleging Defendant LCMH’s potential liability in its failure to properly supervise, failure to properly train, failure to perform proper background checks, failure to take positive action to prevent the incident, and failure to provide Plaintiff a safe and secure environment after his admission to the hospital do fall under the umbrella of the LMMA. Thus, the trial court decision granting the exception of prematurity requiring the negligence claims to be submitted to a medical review panel is affirmed. Further, the trial court decision granting the exception of prematurity requiring the negligence claims against Defendant Zeno that he failed to follow the proper standard of care, and failed to provide Plaintiff a safe and secure environment after his admission to the hospital to be submitted to a medical review panel is affirmed. All other claims regarding the intentional acts of Zeno and any vicarious liability of LCMH as it relates to said acts are not subjects of this appeal and the trial court’s ruling on such is undisturbed by this court.”

Shaikh versus Southwest Louisiana Hospital Association, CA-0019-0414.

If you or a loved one were injured (or worse) as a result of the medical negligence in Louisiana or in another U.S. state, you should promptly find a Louisiana medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to be connected with medical malpractice attorneys in Louisiana or in your U.S. state who may assist you.

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This entry was posted on Saturday, July 11th, 2020 at 5:30 am. Both comments and pings are currently closed.

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