New York Employment Attorney Blog
Sexual harassment is not limited to employer/employee relationships and interactions between co-workers. A recent report in the Atlanta Journal-Constitution (“AJC”) looks into allegations of sexual misconduct by doctors against patients and finds that it is a pervasive problem. Employment statutes, such as Title VII of the Civil Rights Act of 1964, treat sexual harassment in the workplace as a form of unlawful sex discrimination, but these laws do not apply to the doctor/patient relationship. Doctors are bound by ethical rules enforced by state medical boards, whose authority includes license suspension and termination. The AJC’s report, however, finds that a significant number of doctors have retained their licenses even after multiple complaints. In the court system, patients may be able to seek relief through certain tort claims.
A patient may be able to assert a civil claim against a doctor for assault and battery. Although these two terms are often used interchangeably, there is an important distinction between them in civil tort cases. “Assault” generally involves a threat delivered with the intent to place a person in reasonable fear of imminent injury or other harm. A plaintiff does not have to prove physical harm, or even physical contact, if they can establish by a preponderance of the evidence that the defendant intended to place them in fear of such harm. This often requires proof of some overt action by the defendant, such as moving toward the plaintiff in a way that a reasonable person would interpret as an imminent threat. An attempt by a doctor to commit sexual assault against a patient could support a civil assault claim.
The tort of “battery” requires proof of physical contact that caused injury or offense. This does not necessarily mean physical injury. In cases of sexual assault by a doctor against a patient, the offense caused by non-consensual sexual contact should support a battery claim.
Assault and battery are also considered criminal offenses, but the standards of proof are very different. In 2009, a New York court considered a plaintiff’s claim in a civil action for battery that the doctrine of res judicata prevented the defendant from contesting liability after his conviction of attempted assault. The court ruled against the plaintiff, finding that the elements of the criminal offense of attempted assault were significantly different from those of a civil battery claim. Sessa v. Seddio, 2009 NY Slip Op 52545 (Dec. 14, 2009).
New York courts have considered other common law doctrines, in addition to assault and battery, in connection with claims of sexual abuse by medical professionals. New York used to allow civil claims for “seduction,” meaning the use of false promises to induce someone into sexual activity. Laws commonly known as “heart balm laws” abolished these types of claims. See, e.g. Askew v. Askew, 22 Cal. App. 4th 942 (1994).
While “seduction” claims are no longer allowable, New York courts have continued to apply added scrutiny to claims against doctors. This is largely based on “a public policy to protect a patient from…deliberate and malicious abuse of power and breach of trust.” Roy v. Hartogs, 81 Misc.2d 350, 354 (N.Y. Civ. Ct., N.Y. Co. 1975). Medical facilities and other medical professionals may also be subject to vicarious liability if a plaintiff can show that they had actual knowledge of the abuse and failed to act. See NX v. Cabrini Med. Ctr., 765 N.E.2d 844 (N.Y. 2002).
Phillips & Associates’ sexual harassment attorneys fight for the rights of New York City residents in claims of sexual harassment and other unlawful employment practices under city, state, and federal laws. To schedule a free and confidential consultation with an experienced and knowledgeable advocate, contact us today online or at (212) 248-7431.
More Blog Posts:
Lawsuit Filed in New York State Court Alleges Sexual Harassment, Retaliation Against Medical Practice, New York Employment Attorney Blog, May 22, 2015
Researchers Routinely Face Sexual Harassment While Doing Fieldwork, According to Study, New York Employment Attorney Blog, September 10, 2014
New York Lawsuit Alleged Ongoing Sexual Harassment by Staten Island Doctor, New York Employment Attorney Blog, January 31, 2013