Sexual Misconduct or Inappropriate Touching of a Patient: When are Hospitals Responsible for Conduct of Employees?

Generally, in Florida, an employer cannot be held liable for tortious or criminal acts of an employee unless the acts were committed during the course of employment and to further a purpose or interest of the employer. Conduct is considered to be within the course and scope of employment when it (1) is the kind the employee is hired to perform, (2) occurs substantially within the time and space required by the work to be performed, and (3) is activated at least in part to serve the employer. Florida courts have held that employers are not responsible for sexual assaults and batteries committed by employees, as such conduct is generally considered to be outside of the scope of employment.

 

Based on the law, sexual misconduct or battery by a hospital employee on a patient would not ordinarily fall within the course and scope of employment, and therefore, a hospital would not be vicariously liable for such conduct; however, hospitals should beware of direct claims against the hospital for negligent hiring or retention of an employee who commits a tortious act at work. If a plaintiff can show that the hospital did not reasonably investigate an employee’s background before hiring or was on notice of a employee’s pattern of behavior during employment, the hospital may be held liable.

 

In order to protect themselves from negligent hiring claims, hospitals should perform thorough background checks on all employees and document them in personnel files.

 

To avoid claims for negligent retention, any reported instances where an employee is accused of sexual misconduct or battery against another employee or a patient, should be investigated. The investigations should be documented in the employee’s personnel file. Engaging an attorney to assist in the investigation will ensure that the entire process, and all written notes and statements, are covered under attorney-client privilege, and therefore, non-discoverable, should there ultimately be a lawsuit. Appropriate action, based on the offense, including possible termination should be considered and taken.