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Medical malpractice asserted against doctor for sex assaults

It is fairly well-settled in Louisiana that a doctor who sexually assaults his patients under the guise of treatment will be liable for patient injuries that are inflicted. This almost always comes up in the context of a male doctor treating female patients. When the doctor makes sexual contact during a medical session with the patient, virtually all courts have declared this to be medical malpractice.

In one case now gaining attention in another state, criminal charges are pending against an ear, nose and throat specialist who is accused of sexually assaulting at least five of his patients. Several other patients are suing the man in civil court but are not involved in the criminal case. In the civil court claims, criminal terms such as rape, sexual assault, and sexual battery are not being used; instead, the cases are based on medical negligence and medical malpractice.

That is because the doctor's medical malpractice insurance policy generally will not cover criminal matters involving intentional criminal acts such as rape. Therefore, the attorneys pursuing a civil monetary recovery for a plaintiff in a sexual abuse case will carefully use the appropriate language that is consistent with civil tort law and insurance coverage principles. In addition, most of the civil suits for money damages include hospitals as defendants.

Where the doctor treated the patient at a hospital at least part of the time, and where he is on the staff of the hospital where he has seen the patient, there is enough connection with the institution for it to be listed as a defendant on an agency theory. The medical malpractice of the doctor, when performed in the pursuit of the hospital's business, will generally impute liability to the hospital in an agent-principal relationship. Under Louisiana law and the law of all other states, if the women can prove the allegations by a preponderance of the evidence, they will likely be entitled to collect monetary damages against one or more of the defendants in the civil claims.

Source: pe.com, "TEMECULA: Doctor charged with sexual assault sued by more patients", Alex Groves, April 5, 2016

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