By Alex Stein
A gynecologist’s patient filed a suit alleging that he touched her inappropriately and made sexually charged comments during her office visits. The suit was filed against the gynecologist and his employer. The plaintiff’s allegations against the gynecologist included medical negligence and intentional infliction of emotional distress. Her cause of action against the employer consisted of negligent supervision and negligent infliction of emotional distress. After settling her suit against the gynecologist for an undisclosed amount, the plaintiff attempted to proceed with her action against the employer. The employer moved for summary judgment, which was granted by the trial judge and affirmed by the court of appeals. The plaintiff’s appeal to the Supreme Court of Kansas was equally unsuccessful: Cady v. Schroll, — P.3d —-, 2014 WL 265551 (Kan. 2014).
Here is why:
The organization that employed the plaintiff’s gynecologist was a healthcare provider qualified for malpractice insurance coverage under the Health Care Stabilization Fund, created by the Health Care Provider Insurance Availability Act (K.S.A.). Under K.S.A. 40–3403(h), the employer “shall have no vicarious liability or responsibility for any injury … arising out of the rendering of or the failure to render professional services … by any other health care provider who is also qualified for coverage under the fund.” This statutory provision creates an insurance based liability scheme that shifts the financial responsibility for doctors’ malpractice to their insurers. For that reason, the Court decided that employers’ immunity against suit under K.S.A. 40–3403(h) should be construed broadly to include not just vicarious liability, but also any direct liability for negligent credentialing or negligent supervision of stuff and all other forms of institutional liability.
This decision is correct. The plaintiff, however, could have tried a more promising cause of action. She should have sued the gynecologist for assault—a cause of action that falls outside the scope of “professional services” covered by K.S.A. This cause of action would have allowed the plaintiff to ascribe vicarious liability to the gynecologist’s employer.
An argument that the plaintiff tries to bypass the tort reform by artificially re-characterizing medical negligence into sexual assault would fail. If the plaintiff’s allegations are true, then she was sexually assaulted. Describing her as a recipient of substandard medical care would be factually false. Moreover, using the Health Care Stabilization Fund as an underwriter for sexual abusers would hardly be a good idea.