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Sexual Assault

One particularly troubling, and legally dangerous, class of batteries are sexual assaults. It is difficult to determine the true number of sexual assault claims against physicians. When a claim is made public, it receives extensive publicity, creating the impression that sexual assaults are a common problem. In other cases, sexual assault claims are paid off by the physician's malpractice insurance company. While all medical malpractice insurance policies exclude coverage for criminal activity, plaintiffs' attorneys include an allegation that the assault was a breach of medical standards as well as a criminal act. This creates a dilemma for the insurance company.

If the insurance company pays the claim, it forces its other insureds to subsidize illegal conduct. If it refuses to pay the claim, the plaintiff's attorney can make a deal with the defendant physician. In return for the physician's agreeing to confess to negligent (and covered) behavior, the plaintiff's attorney will agree to settle both claims for whatever can be extracted from the insurance company. If the insurance company refuses to settle the case, the plaintiff's attorney may offer to represent the physician defendant in a claim of bad faith against the insurance company. The defendant, now represented by the plaintiff's attorney, sues the insurance company on a breach of contract theory for failing to pay the claim. If the plaintiff's attorney wins the lawsuit, the defendant collects from the insurance company and then passes the money to the plaintiff.

Sexual assault claims are increasing because of the heightened societal concern with sex crimes and child sexual abuse. A sexual assault claim stigmatizes the physician and gives the plaintiff a strategic advantage in what might otherwise be a weak medical malpractice case. Ethical attorneys will not make such a claim if they know it to be false. However, if the attorney's client insists that she or he has been assaulted, the attorney can only judge the assertion based on the circumstances of the medical treatment. The legal standard of care is that male health care providers do not examine female patients without a female attendant present. This standard is frequently ignored, however. A physician who violates this norm or allows a male nurse or physician's assistant to examine a female patient unattended will find it very difficult to defend a sexual assault claim. An attorney representing such a patient will accept the patient's claims as credible because allowing an unattended examination of a female patient is concrete evidence that, at the least, the physician has bad judgment.

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