Medical Battery Against Craig County Student Moves Forward
A former female student at a Craig County high school has filed a lawsuit against the school and a former nurse practitioner who is accused of fondling her breast during a physical. The government had moved to dismiss the case against the school, but that motion was denied. The case will be allowed to move forward.
According to the student, several things were awry during her physical. She had had several physicals prior to this appointment. She said that she was greeted by a man identifying himself as a doctor. There was no nurse in the room at the time. The man was actually a nurse practitioner who slid his stethoscope under the patient’s bra and fondled her breast while listening to her heart. He then ran his fingers up and down her spine for an unusually long time. Sensing this was not the normal course of a physical, she filed a complaint against the wellness center which services Craig County and the county government for employing the nurse practitioner who committed the medical battery. However, the services provider has not been named in the lawsuit and neither has the alleged culprit.
Why did the government try to dismiss the case?
You can file a medical malpractice lawsuit against a hospital, care center, doctor, nurse practitioner, and the government when the employees are government employees. In this case, the government argued that, assuming the truth of the allegations, the alleged culprit was acting outside the scope of his duties as an employee of the center when he committed the offense. Hence, the government should not be vicariously liable for his conduct as an employee since it was outside the scope of his employment duties.
That argument won’t work. The government suggested that the plaintiff file a sexual assault lawsuit or negligent security lawsuit against the center, but as of yet, that has not happened. Medical malpractice technically is a negligence claim. That means that if a doctor does something intentionally to injure a victim, it would probably fall outside the scope of medical malpractice. However, because the government and the wellness center gave a predator access to a victim pool, they are still liable.
Whether or not this constitutes a medical malpractice claim has been determined by the courts. The courts say that it is okay for this plaintiff to file a medical malpractice lawsuit against the government. However, there are several problems with that approach, not the least of which is that there are damage caps on both the government’s liability to private citizens and medical malpractice lawsuits. In other words, if the student files a negligent security or sexual assault lawsuit against the government and the facility, she may be able to recover more money with fewer encumbrances to the process. Another option is medical battery.
In other words, we have to side with the government here and say that the claim for medical malpractice is likely harming the plaintiff’s case. If she succeeds, not only would sovereign immunity limit her recovery, but medical malpractice damage caps would further limit her recovery. To boot, she’ll have to pay for a medical expert to testify on her behalf. It doesn’t make sense to allow this action to proceed on the basis of medical malpractice when these lawsuits are so much more difficult to pursue with a lower potential payoff.
Uncle Sam has it right. However, the court was also right that because the sexual assault occurred in the performance of medical duties, it is still pursuable under a medical malpractice theory. It just prevents the client from pursuing greater damages and it makes the case harder to file and win.
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Resource:
roanoke.com/news/local/judge-allows-ex-craig-county-students-medical-malpractice-lawsuit-to-advance/article_bafe1734-7560-11ec-bec7-5bc52f56181e.html