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45. Is the patient likely to prevail?
A tort action was brought on the patient's behalf against the hospital. The hospital contends that the employee's actions were outside the scope of his employment.
A male employee who worked at a psychiatric hospital had sexual relations with a patient in her room at the hospital. The patient was severely mentally disabled, and although the patient did not initiate the encounter, she did not protest.
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Generally, there is no affirmative duty of a defendant to help or protect others. There are several exceptions to that rule, however, and one of them is situations where the defendant has a heightened level of control over the safety of individuals in its care. Classic examples of such situations are parents protecting children, innkeepers protecting guests, and prison wardens protecting inmates.
D is correct. This question presents an affirmative duty to protect: hospitals protecting severely mentally disabled patients. Thus, the psychiatric hospital owed a heightened duty of care, including to protect the patient, and it breached that duty in failing to protect the patient from the employee. This is the best answer because it addresses the special relationship and heightened duty owed to individuals in this situation.
A is incorrect. Normally, an employer is not liable for the intentional torts of an employee. There are exceptions to that rule, however, including situations in which the employee's position includes the use of force (such as a bodyguard) or when the employee's position affords him or her a particular opportunity to commit torts of the type committed. Here, however, the question does not specify that the plaintiff is relying on respondeat superior, and thus the hospital would not be immune even assuming that the actions were outside the scope of employment.
B is incorrect. Although a consensual encounter could negate a claim that the hospital negligently failed to protect the patient, the facts of this question do not establish that the patient consented: not protesting, especially when the individual is severely mentally disabled, does not establish consent. Further, the question suggests that the patient was not able to consent because she was severely mentally disabled. While mental incompetence may not remove all capacity for consent, the facts in this situation indicate that the patient was legally incapacitated and was either mentally incapable of consent or was susceptible to undue influence.
C is incorrect. This answer misstates the law by phrasing vicarious liability as strict liability. Merely because the employee worked for the hospital does not alone establish that the hospital is liable for the plaintiff's actions and, in particular, his intentional torts.