Duties and responsibilities
Clinic held liable for a sexual assault
An article for physicians by CMPA General Counsel
Originally published December 2005 / Revised April 2008
Ontario court decides that a medical clinic is liable for sexual assault committed by a technologist, who was an employee of the medical clinic.
Of interest to physicians whose employees have direct patient contact
A young woman attended a private ultrasound clinic owned and operated by a radiologist. The clinic employed a qualified ultrasound technologist who tested and examined the patient. At that time the clinic was being renovated, which meant ultrasound patients had to change behind a curtain. The ultrasound technologist took advantage of this set-up to surreptitiously videotape the patient while she robed and disrobed. He also performed an unnecessary and inappropriate examination. The technologist, who was not assisted by the CMPA, was charged by police and convicted of criminal assault, sexual assault and mischief.
The patient then brought a civil action against the technologist and the clinic. At trial, both the technologist and the clinic, which was assisted by the CMPA because it met the guiding principles for assistance to clinics and facilities, were found liable for damages arising from negligence and the sexual assault. The clinic was also found vicariously liable for the sexual assault committed by the technologist. The CMPA supported an appeal of this decision.
The appeal focused primarily on the finding of vicarious liability. Counsel for the clinic argued that the existing cases, where vicarious liability for sexual assault had been imposed in non-medical situations, should not be extended to the medical context.
Vicarious liability is the legal principle that provides that an employer can be held financially responsible for the negligence of an employee. An employment relationship must have existed at the time of the incident, and the defendant employee must have been sued for work done within the scope of his or her employment.
The Ontario court held that the clinic was liable for the acts of the technologist-employee. It took the view that "the clinic's enterprise and empowerment of the employee materially increased the risk of sexual assault" and that "the business of the clinic and the authority given to [the technologist] by the clinic created a serious risk of sexual assault to patients."
The bottom line
The Ontario court's decision is important because it extends an employer's liability for the negligence of an employee to now include acts of sexual assault committed by an employee of a medical clinic.
When giving employees responsibility in working with patients, think about the potential risk to your patients of assault and take appropriate and reasonable steps to reduce that risk. Guidelines issued by licensing authorities and other professional organizations should be considered. In this case, the trial judge suggested steps that could also be considered to assist in minimizing the risk of sexual assault in similar settings: random spot checks, basic sensitivity training courses for staff, separate changing rooms, and the availability of a female staff member to accompany a female patient during part of an examination, upon request. Taking measures such as these could reduce a clinic's risk of exposure to liability by demonstrating that the clinic took reasonable steps to minimize the risk of harm to patients.