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Summary: Doctors and Nurses by nature of their positions deal with patients when they are vulnerable, off-balance and emotionally needy. When the population includes the psychiatric patient, the potential exists for a client to develop "feelings" for the caregiver. In this case, a sexually abused mother of three was admitted for multiple mental disturbances. During the course of the treatment, a relationship developed and led to sexual encounters following discharge. When it came to light, the patient successfully sued. The
hospital would attempt to recover damages against the nurse following her testimony in defense of the facility. This is commonly called a Subrogation action.
The patient had a long history of mental pathology. This was thought to have originated during her childhood and adolescence when she was sexually abused. At the time of the incident, the woman was a married mother of two. She would be admitted twice in two months and cared for each time by the defendant nurse.
"Her diagnosis included depression, post traumatic stress disorder, suicidal ideation and personality disorder"1
During her stay, the nurse in question was working through and paid by an agency. It was undisputed however that the
hospital supervised and was responsible for her actions. A relationship would develop between the nurse and the patient that would lead to several sexual encounters following the patient's discharge.
"Recent controversy over liability for posttermination sexual relationships with patients has led several of the major mental health organizations to adopt ethical rules regarding posttermination contact.[106] The American Psychological Association, for example, has established a two-year posttermination rule.[107]
The American Psychiatric Association is reportedly considering the adoption of a rule providing that sexual contact with a former patient is never acceptable.[108]
Such a sweeping prohibition may bring up constitutional issues that are beyond the scope of this paper. However, plaintiffs' attorneys may argue that there is liability for posttermination sexual contact."2
The patient would sue the nurse, the agency and the hospital. Charges against the nurse included Professional Malpractice and improper handling of the nurse-patient relationship. Following a partial settlement, the issue did go to trial. The terms of the settlement released the nursing agency and nurse from liability, only, as an employee of the agency. This did not preclude legal action against her as an agent of the hospital.
A negligent verdict was handed down with the majority of the negligence assigned to the nurse and the remainder to the hospital. In addition, punitive damages were also awarded against the nurse only.
Following the trial, the
hospital filed a motion that would allow it to sue the nurse. It sought to recover losses it incurred as a result of her negligence. The court considered this "untimely" and denied the motion.
Questions to be answered:
1. Was the nurse negligent in her care of the patient during the
hospital stay.
2. Was the nurse guilty of professional misconduct by nature of her sexual affair with a patient previously under her care.
3. Was the
hospital within its rights to attempt to sue the nurse whom it had compelled to testify on its behalf in the initial trial.
It is the duty of the nurse to report all significant changes and developments in a patient's status to an attending physician (or in this case psychiatrist). Transference of feelings and counter transference are common and known occurrences in the psychiatric field of treatment.
"Non-forced sexual relations between health care providers and patients were not substantively addressed until the advent of psychotherapy.
Freud wrote extensively on patients' "transference-love" toward their analysts and cautioned against analysts' sexual involvement with patients.[21]
Transference has come to refer to the phenomena whereby a patient "transfers" intense emotions and feelings, properly belonging to the patient's past, onto the therapist. The patient may believe that he or she is "in love" with the therapist.[22]
The earliest noncoercive sexual contact cases focused on the therapist's mishandling of the patient's transference.[23] More recently, arguments have been made that physicians and other health care providers who do not work specifically with transference should be found liable for sexual contact with patients.[24]"3
If there was any suspicion or observation on the part of the nurse (or other
hospital staff) that the patient was vulnerable and "prone" to seek an intimate relationship with a caregiver, a duty is owed to bring this to the healthcare team's attention. By properly and promptly reporting these observations, interventions could have been incorporated into the plan of care to deal with them.
The court assigned negligence to the
hospital chiefly because no other member of the
hospital staff detected the developing relationship between the nurse and the patient.
"Therapists and other health care providers are increasingly being held liable for damages resulting from their sexual contact with patients. The major theories of liability for therapists revolve around therapists' mishandling of the patients' "transference" in the course of treatment. Therapists' liability may be expanding into post-termination sexual contact."4
The nurse in this case did not report the developing relationship and allowed it to continue after the patient's discharge. She additionally allowed the situation to progress into sexual relations that were clearly unacceptable.
The
hospital was well within its right to attempt to sue the nurse for losses it incurred. It is fortunate for the nurse that the "strategically" timed motion was denied by the court. It should be noted that there was no disagreement on the part of the court of the hospital's right to sue.
The disagreement came in the "timing" of the suit initiation. Under other circumstances the nurse who was without personal malpractice insurance would have been sued and at risk of losing her license to practice and personal assets.
It's important to note there that when you are sued, or asked to testify in a suit, you are typically not given a choice about it. An attorney can subpoena any "potential" witness as seen fit to serve the interests of the client. It is a duty owed to the lawyer's client.
The nurse if she refused to testify, could have been brought before a judge and held in "contempt." It is convenient in this case that the nurse and the agency in the early settlement was "nonsuited" or removed from the lawsuit. This was for the purpose of her involvement through the nursing agency as an employer.
This allowed the
hospital to proceed and leave her "out" of the current suit. This provided a "window of opportunity" to sue her later in the event of a loss. Fortunately for the nurse, the court did not agree with their actions and disallowed them.
It is a common misconception that having a personal malpractice policy will make you "more likely" to be sued. The fact is neither your employer nor a patient or their attorney will know whether or not you have a policy until you tell them after you've been named in a suit. At that point, you'll need to hire an attorney regardless, which is where the insurance protects you.
Often the nurse will be sued along with the
hospital and physician in hopes that the "deeper pockets" (the
hospital and physician) can be held responsible for the alleged negligent acts of the nurse.
If you are sued even once in your life, you will have to hire an attorney or put yourself at the mercy of the
hospital or facility's attorney. They are paid by and working for the interests of the employer and will happily sacrifice the nurse to serve them. Lawyer's fees can run into the tens of thousands of dollars very quickly.
It is wiser and prudent to pay the $80-$100 dollars a year (don't most nurses make that in a day?) for a malpractice policy that will pay attorneys fees for you in the event you are involved in legal action. Most policies will also cover you "off the job" and when you are giving advice to a friend or family member or stranger at the roadside as a Good Samaritan.
2. Sutherland, Pamela K. Health Professional Sexual Misconduct With Patients. Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct With Patients. Retrieved August 22, 1999 from the World Wide Web: http://www.cs.utk.edu/~bartley/pamela/overview/overview9.html#post
3. Sutherland, Pamela K. Health Professional Sexual Misconduct With Patients. Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct With Patients. Retrieved August 22, 1999 from the World Wide Web: http://www.cs.utk.edu/~bartley/pamela/overview/overview2.html#liab
4. Sutherland, Pamela K. Health Professional Sexual Misconduct With Patients. Liability of Physicians, Therapists and Other Health Professionals for Sexual Misconduct With Patients. Retrieved August 22, 1999 from the World Wide Web: http://www.cs.utk.edu/~bartley/pamela/overview/overview12.html#non
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