Patient abuse within the healthcare and other professional industries is continuing to make headlines. In many instances this abuse is sexual in nature. Adults face numerous situations that can lead to sexual assault or abuse. At times, the abuse may even appear to be consensual sexual contact. 1 in 5 women have been raped in their lifetime. 1 in 5. Many such rapes are committed by a trusted acquaintance. 13% of women, and a lesser number of men, have experienced sexual coercion defined as “unwanted sexual penetration after being pressured in a non-physical way.” Most women experience their first rape before the age of 25. Many experience their first rape before the age of 18.
What is Transference?
Improper sexual contact between a therapist or other professional and a client or patient is a phenomenon known as “transference.” Doctors and psychologists are ethically forbidden to engage in sexual relations with their current patients, and such restrictions may extend for several years after the therapist/patient relationship has ended. Lawyers have similar restrictions against sexual relationships with clients. Massage therapists also have a corresponding ethical duty to refrain from sexual conduct, consensual or otherwise.
Irrespective of these ethical prohibitions, the effects of transference and countertransference are powerful. Transference is a term used in psychotherapy describing the powerful feelings patients develop toward their therapists. Sometimes, transference can result in negative feelings toward the counselor or therapist, but at times, it leads to sexual relationships. The same phenomenon occurs in other therapeutic relationships, such as with counselors, physicians, attorneys, and massage therapists. Even if the sexual relations appear consensual, a therapist must recognize that the patient or client is vulnerable. Consent may be manipulated because of transference.
Is Sexual Assault by a Medical Professional Considered Medical Malpractice?
The key is determining if the harm was the result of the delivery of healthcare services. While sexual assault would seemingly be outside the scope of medical services, if it occurs in the course of the delivery of therapeutic advice, it likely falls within the Missouri malpractice statute.
If so, the Missouri legislature has imposed limits on the amount of recovery you can receive. Also, there are multiple procedural hoops that you and your attorney must jump through to gain you an appropriate recovery. Non-economic damages are limited (e.g., pain and suffering) depending on the nature of the injury, while economic damages have no limits, so long as the proper proof of economic loss is provided at trial (e.g., lost income or medical expenses). However, this may not be an entirely terrible thing. While damages may be limited, the delivery of healthcare services will more likely be covered by a policy of professional liability insurance.
Other professions may not enjoy the same protections as doctors and other healthcare providers. Nevertheless, each profession presents its own factual and legal challenges.
Is the Employer Responsible for the Employee's Acts?
Again, much of this may depend on whether the acts are characterized as within the delivery of healthcare services. Transference during a psychiatric counseling session may result in liability for the employer if the counselor was otherwise acting within the course and scope of his/her employment. If, for example, a group of psychologists employs a counselor who engages in improper sexual relations during counseling, this may fall within the doctrine of employer liability known as respondeat superior; literally meaning “let the master answer.”
Conversely, the employer may defend the case by claiming the professional acted beyond the course and scope of his/her employment. What then? Professional employers may still be held responsible if one can prove it had knowledge, or ample reason to know, that the professional was either abusing the patient, or that past acts should have placed the employer on notice to terminate the professional’s employment. Occasionally, the hiring of a professional may be an issue, if the employer failed to conduct a reasonable investigation into the past of an employee with prior acts of abuse. Imagine, for example, that a professional employer hired a registered sex offender, who had demonstrated a past tendency to abuse clients or patients.
Patient Abuse Advocates | We Get Results
Many do not seek legal assistance. Embarrassment, guilt, and emotional repression of past acts all may stand as a barrier to seeking the proper legal help. Being trauma informed and assisting survivors of sexual assault is one of the primary practice areas of Monsees & Mayer. We patiently listen, and if needed, direct a survivor to resources for recovery. If legal action is necessary, our attorneys have a history of navigating the waters of sexual abuse. There are factual, legal and insurance questions that combine to challenge even the most experienced of attorneys. The attorneys of Monsees & Mayer know how to navigate these waters as are proven by our past success.
$1,000,000 – Patient sexually assaulted by nurse
$700,000 – Disabled man abused by care provider