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Legal Speak

Failure to Supervise

Published May 11, 2011 9:56 AM by Tony DeWitt

From Seattle comes a cautionary tale of why it is necessary to take swift action when any allegation of a sexual nature is lodged against an employee.  Richard Garcia, a respiratory therapist, was charged with sexual abuse of a patient and pleaded guilty, receiving a six month jail sentence in the process.  His employer has not been so fortunate.

Garcia admitted sexually abusing a wheelchair-bound patient at Harborview Medical Center in Seattle when he worked as a therapist.  The patient's attorneys learned in their investigation that the facility had a similar complaint of sexual misconduct against the therapist four years prior to this incident, and have sued for negligence and failure to supervise and/or discharge the therapist.

Sexual abuse of a patient is "outside the scope and course" of a therapist's job description, just as it would be for any nurse or other health care worker.  So, in most states, the only way the hospital is on the hook for the intentional criminal acts of another is if there is either a special relationship or if the hospital was negligent in supervising the employee.

Media reports have not suggested whether the incident four years prior to the abuse of the patient was ever substantiated.  However, the fact that there was an investigation and the therapist was retained after that investigation provides ample fodder for the plaintiffs in the lawsuit.  They will likely be able to suggest that the investigation was poorly handled and that had it been properly handled, their client would not have been abused.

Any time there is an allegation of a sexual nature that discloses impropriety, the only safe course of action for an employer is immediate termination and immediate reporting to the State Board.  Doing otherwise is a good way to get sued.  Just ask Harborview.

posted by Tony DeWitt
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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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