Intentional Acts
Intentional torts are usually not within the course and scope of employment. Employers may be vicariously liable for the intentional torts of their employees only if the employer tolerated the activities or did not properly screen the employees for dangerous tendencies. For example, assume a physician hires a physician’s assistant who subsequently sexually assaults a patient. If the employee has no history of assaulting patients or other persons and the physician has not had any notice of problems, the physician will not be liable for the assault. If, however, the employee had assaulted persons in the past and the physician was negligent in not discovering this, the physician could be liable under the theory of negligent hiring. The physician could be liable for negligent retention if there were complaints about the behavior of the physician’s assistant and the physician failed to act on them.
Physicians must have employment criteria designed to detect employees who are a potential hazard. They must take quick action if an employee is suspected of intentionally harming patients. Intentional injuries must never be covered up. Cover- ups can result in large financial losses through the assessment of punitive damages, and they undermine public confidence in the physician or medical institution. In one example, which occurred in a San Antonio teaching hospital, [Federal investigators report on clusters of infant deaths. July 25, 1985; New York Times. Investigators near end of inquiry into deaths of infants at hospital. April 11, 1984; New York Times] a pediatric ICU nurse became so involved in the thrill of resuscitating patients that she began poisoning children with a muscle relaxant to create resuscitation opportunities, not all of which were successful. Rather than investigating the unexpected increase in deaths, the hospital and physician committees covered up the evidence pointing to murder and offered the nurse a good recommendation if she would resign. She continued to poison children in her subsequent job but was found out and convicted of murder. Through its participation in the cover- up, the hospital and physicians increased their liability for the nurse’s actions while she was in their employ and may have assumed liability for the murders she committed later because the job was obtained with their false recommendation. They may have also committed crimes themselves by not reporting suspicious deaths and injuries under both the child abuse reporting laws and murder laws.