Medical Malpractice in the Dentist Office

A doctor was recently sentenced to life in prison plus an additional 25 years for the sexual assault of 19 of his female patients, two of whom were only 15 years old at the time of the assault. He was a nurse anesthetist that worked for a dental practice in Cobb County, Georgia. He performed the assaults on the unconscious woman after he sedated them in preparation for dental surgery. Each of the assaults was videotaped by the perpetrator for his personal use.

Following his criminal conviction, the victims filed lawsuits spanning the gambit of intentional torts: assault, battery, and invasion of privacy. Our Illinois attorneys are very experienced in each of these types of lawsuits. Although it is not an issue here, it is important to note the fact that an individual has escaped criminal liability does not preclude a victim’s ability to recover monetary damages through a civil lawsuit.

In this particular case, the victims will almost certainly be successful in their civil suits filed against the anesthetist. Because these are intentional torts there is an element of intent. For an intentional tort claim to be successful, it must be established that the defendant had the intent to commit the specific act perpetrated. This will certainly be established here as sexual assault virtually always satisfies the intent element.

In addition to filing suit against the anesthetist, every victim also filed suit against the dental practice that employed him for negligence. While the victims would presumably like to sue the dental practice for intentional torts, there is no evidence that they intended the sexual assaults to occur, or even knew that such illicit activities were occurring. In fact, it was another employee of the dental practice that first notified the police of a video camera she found set up in the women’s bathroom. As a result, it is anticipated the victims will file negligence suits against the dental practice.

The four elements of a negligence suit will likely be satisfied: duty, breach, cause, and injury. It would be very difficult for the dental practice to convincingly argue that they didn’t breach their duty to protect their patients, especially when they were anesthetized. They may make a colorable argument that the causation element is lacking, but because of the repeated and heinous nature of the assaults, a jury is not likely to accept it. Although the victims may be successful with the lawsuit, this does not ensure recovery of the damages.

Typically, damage awards will be covered by a business’s insurance policy. However, recovery will be problematic here due to the nature of the torts. Most companies purchase what is known as a Comprehensive General Liability policy. These policies cover an array of claims, but they also contain a variety of exclusions which preclude coverage. The two exclusions that will be problematic for the victims to satisfy are the Intentional Injury and Work-Related exclusions.

Therefore, if the dental practice is found to be liable for the actions of the anesthetist because he was their employee, their insurer will be able to deny coverage. Case law establishes that sexual assault is both an intentional injury and not related to any profession. As a result, both exclusions will preclude coverage on behalf of their insurance company.

Unfortunately, the amount of damages the victims can obtain, regardless of the jury’s determined award, is limited to the assets of the anesthetist and possibly the dental practice. This reality is not meant to discourage the pursuance of civil suits. Any type of civil wrong should be punished, but it is important to be practical and realistic when approaching any legal matter. The experienced Illinois attorneys are very capable of handling lawsuits such as these.

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