In Florida, a patient who is sexually assaulted by a doctor or hospital employee is not required to sue the healthcare provider under traditional theories of medical malpractice, unlike a patient otherwise injured by a careless doctor, nurse, or other healthcare provider. A female patient, “Jane Doe,” recently sued St. Joseph’s Hospital in Tampa, Florida, claiming that she was sexually assaulted by a mental health technician employed by the hospital while she was an admitted patient in the hospital’s mental health care facility. The sexual assaults occurred in her room. She further claims that when she reported the incident to hospital officials, they tried to intimidate her and failed to investigate the allegation.¹
St. Joseph’s sought to have her case dismissed because she did not follow Florida’s complex pre-suit screening requirements as set forth in Statute 766. of Florida’s medical malpractice statutes. Thankfully, the trial court agreed with her and denied the Hospital’s motion for summary judgment. Of course, the hospital appealed.
In order to have the denial overturned, they have to prove three jurisdictional conditions:
- that the trial court judge departed from the essential requirements of the law,
- resulting in material injury for the remainder of the trial,
- that cannot be corrected on post-judgment appeal.²
On appeal, in reviewing the trial court’s order, the appellate judges found that the issues of noncompliance with Florida’s medical malpractice are not the kind that can be remedied after a judgment as they are designed to avoid filing medical malpractice lawsuits in the first place. Here, St. Joseph’s argued in its appeal that the trial judge “departed from the essential requirements of law” by determining that the allegations in Ms. Doe’s complaint of sexual assault did not amount to medical negligence.
Florida law defines “medical negligence” as “medical malpractice, whether grounded in tort or in contract,” as a claim, “arising out of the rendering of, or the failure to render, medical care or services.”³ Therefore, the question is really whether or not Jane Doe’s sexual assault by a hospital employee arose out of any medical, dental, or surgical diagnosis, treatment, or care.4 The court agreed that her assault was not related to her medical care and therefore did not have to be prosecuted under the medical malpractice statute.5
In my career as a medical malpractice lawyer in Florida, I have investigated dozens of claims of sexual assault by healthcare providers, and the victims have been both young and old, women and men. In every case, it seems almost impossible to believe that a doctor, nurse, technician, or other healthcare provider could take advantage of a sick, disabled, or even unconscious patient. However, it has happened and will happen again.
Contacting a Florida Sexual Assault Attorney
If you have been victimized by a healthcare provider, in a hospital or nursing home, contact our Miami medical malpractice law firm today for a free initial consultation regarding your legal rights. It is common for victims of sexual assault and rape to feel guilty–as though what happened to them is their fault. Taking a stand against your assailant can be both empowering and liberating. We help our clients regain control of their lives; we assist and guide them through the legal process so that they are not victimized again by aggressive insurance defense lawyers. We help them find the appropriate doctors and therapists to provide mental and emotional support through their recovery and through the stresses of a lawsuit and potential jury trial. We seek to protect their dignity and hold those who are to blame accountable for their actions. Call us today for a confidential consultation with an experienced medical malpractice attorney. We are available 24/7, by telephone at 305-441-0440, or toll-free at, 1-866-597-4529, and via email at email@example.com, FACETIME, or SKYPE.
1ST. JOSEPH’S HOSPITAL, INC., Petitioner, v. JANE DOE, Respondent. 2nd District. Case No. 2D16-2122. Opinion filed January 13, 2017.
2Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995).
3Florida Statutes Section 766.202(7).
4Fassy, 884 So. 2d at 364 (alteration in original) (quoting J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 945, 947 (Fla. 1994))
5Jane Doe also sued the hospital for failing to comply with the risk management requirements for medical care. These allegations would have to have been filed in compliance with the medical malpractice statute, had the injury occurred due to medical negligence. Since the court ruled that her allegations of sexual assault are do not meet the definition of “adverse incident” and are not medical care; it granted, the dismissal as to this count as moot.