Background checks are crucial, but they have limitations
Sexual exploitation of patients by hospital workers is a foreseeable hazard. In a recent case, the California Court of Appeal for the Second District found that a psychiatric hospital’s policies exponentially increased that danger.
In 2013, an employee at an acute psychiatric hospital in Ventura, CA subjected two women – the plaintiffs in the case of Samantha B. et al. v. Aurora Vista Del Mar, LLC et al. – to sexual abuse while they were residing in the hospital as patients. The plaintiffs, who were both suffering from psychosis, lacked the mental capacity to consent to sex.
The hospital had hired the employee as a mental health worker in 2011. In a form he filled out for the hiring process, he answered “no” to the question of whether he had been arrested for a crime requiring registration as a sex offender. In fact, he had been arrested in 1989 for two sex-related offences, one of which required registration.
The hospital had retained an investigative consumer reporting agency to do a background check on the employee. Since such agencies were prohibited by law from reporting an arrest or conviction preceding the report by over seven years, the agency had not reported the arrest from 11 years ago.
The plaintiffs filed an action against the hospital and its management company. They alleged professional negligence and violations of the Elder Abuse Act.
The jury found the defendants liable for noneconomic damages of $3.75 million to the first plaintiff and $3 million to the second plaintiff, allocated as follows: 35% fault to the hospital, 35% fault to the employee, and 30% fault to the management company, which also had to pay each plaintiff punitive damages of $50,000.
The trial court granted a motion for nonsuit in relation to the plaintiffs’ claims of vicarious liability under respondeat superior and ratification. This meant that the trial court found that the plaintiffs’ evidence did not support a verdict in their favor with respect to these claims. With regard to the issue of respondeat superior and ratification, the California Court of Appeal for the Second District reversed the trial court’s decision and remanded the matter for a new trial. The appellate court affirmed the trial court’s judgment in all other areas.
The rule of respondeat superior provides that an employer is vicariously liable for its employees’ torts committed within the scope of their employment. In this case, the jury still needed to determine the question of whether the mental health worker who sexually abused the plaintiffs had been acting within the scope of his employment at that time, the appellate court said.
Next, the appellate court addressed the doctrine of ratification. As an alternative to respondeat superior, an employer can be liable for its employee’s acts if the employer subsequently ratified the originally unauthorized tort. In this case, there was substantial evidence that could have led the jury to determine that the employer had ratified the employee’s acts. For instance, when the supervising nurse was informed that the employee was known among the hospital workers as “Rapey Juan,” the supervisor only rolled her eyes. No investigation was carried out.
On the issue of whether there was substantial evidence of elder abuse, the appellate court said that the employee was indisputably a hazard to the health and safety of female patients under the defendants’ care, and that the defendants failed to safeguard those patients from the danger he posed.
There was also clear and convincing evidence showing that the defendants were reckless in their failure to protect, the appellate court added. Despite knowing the female patients were especially vulnerable, the defendants adopted the following policies, which exposed such patients to a high degree of risk of sexual predation:
- The defendants chose to hire unlicensed mental health workers despite knowing the limits of background checks on such workers, instead of retaining certified nursing assistants, who are trained, licensed, fingerprinted and subject to unlimited background checks;
- The hospital’s policy permitted a male worker to stay for up to 20 minutes alone with a female patient in her room;
- The employee’s training, which consisted of a three-to-five-minute talk and two days of shadowing another worker, was minimal.
Learn more at Employment Law Masterclass California.