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Medical Malpractice: Sedation, Sexual Assault and Surgical Centers
Protect your patients from caregiver abuse and the resultant lawsuits.
William Landess
Publish Date: March 31, 2015   |  Tags:   Medical Malpractice-Legal
avoid patient abuse AVOID ABUSE There are several things you can do to keep patient abuse out of your facility.

A 60-year-old Portland, Ore., woman is suing the GI clinic that performed her colonoscopy last April for unspecified damages, claiming that she was sexually assaulted while under anesthesia, a charge the clinic vehemently denies. According to the suit, 3 men were in the room during the colonoscopy — a physician, a medical assistant and a CRNA. A female RN treated the woman after the procedure. No criminal charges were filed in this case, as the accused retained lawyers and refused to speak to police, which has suspended its investigation, citing a lack of evidence (see "Patient Sues, Claims She Was Raped During Colonoscopy"). But as is often the case, an allegation of patient abuse has triggered a medical malpractice lawsuit. Regardless of the outcome — win, lose or settle — the facility loses every time.

Predatory behavior
Patient abuse means a healthcare professional breached his duty to prevent harm to patients. Any breach of that oath is medical malpractice. While these cases often bring criminal charges on the perpetrator, patients can and do sue facilities for negligence — and it can cost you millions.

Remember, being the caregiver is all about having control and wielding power, while being a patient is all about loss of control and feeling vulnerable. Patients trust you to take care of them. But what if one of your caregivers breaks that trust? Caregiver abuse happens more often than you might think.

Take the case in Texas, where a medical technician was recently sentenced to 2 ? years in prison after he was found guilty of sexually assaulting a patient as she was coming out of anesthesia (see "Surgical Tech at Military Center Faces Allegations of Fondling 3 Women"). According to reports, 3 women accused the tech of molesting them, although the court only found him guilty of touching 1 of the women inappropriately. Court documents reveal the man fondled her breasts and penetrated her with his fingers as she was being aroused from anesthesia after an outpatient procedure. The woman told the court she feared she had been raped when she returned home after the surgery and found blood in her underwear.

Time and opportunity
So what do these cases have in common? Besides the obvious abuse, there was opportunity for abuse. What creates this opportunity? Usually it's a lack of supervision that can give predators a chance to commit these crimes against vulnerable patients. These victims tend to be those who cannot physically defend themselves, lack the verbal abilities or mental capacity to understand abuse, and/or are sedated and unaware of what is happening.

For a predator, the unfiltered access to patients and medications can be attractive. But there are ways to help deter this from happening at your facility. Even if you're short-staffed or the job opening is for a low-paying position, be sure that you are completing thorough background checks for all of your staff members — especially anyone who comes in contact with patients. You should also rotate staff assignments frequently. It's easy to overlook the basics, but you could be putting your patients in danger.

Having a robust protocol and system of checks and balances also deters abuse. That means a system where you are continuously educating your staff to look for predatory behavior and holding them accountable for your patients' well-being. The specific protocol can depend on the facility and state, but it should empower staff to report any suspicious behavior to management.

If there is abuse, swift prosecution is paramount. It not only serves as a deterrent for others, but it also removes the perpetrators from your facility. While it varies, depending on your facility guidelines, at a minimum the immediate supervisor must be notified. Typically following that, other levels of management may get involved, including leaders from security and legal departments. Oftentimes state law or your facility guidelines will dictate that you must report the incident to the proper state entity (for example, a nurse would answer to the board of nursing). Your facility guidelines should also include whether to place the person on suspension, and when authorities need to get involved. Check your current policy to make sure you have a clear plan in place.

This issue clearly isn't going away, and while local, state and federal efforts need to be redoub-led, you can also help fight patient abuse. Education is vital and may be in fact the most useful tool. The more information disseminated to the public and your staff, the better. Don't let patient abuse occur on your watch.

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Examples of Caregiver Abuse

Patient abuse can take many forms. It includes any action or failure to act that causes unreasonable suffering, misery or harm to the patient, including physical and sexual assault, as well as withholding food, physical care or medical attention. Sadly, it seems like there is a new story about caregiver abuse almost every day.

A California woman received one of the largest awards ever — $65 million — from a hospital where she was allegedly sexually assaulted by a nursing assistant with a shady background. The nursing assistant went on the run and the hospital, which, despite receiving numerous reports of suspicious behavior, let the nurse continue working with patients, was held responsible.

  • An RN in San Diego was convicted of abusing an autistic patient after his mother used a hidden camera to catch the caregiver in the act. Her son, utterly defenseless, was not able to speak and tell his mother what was wrong. The nurse, whose license was revoked, is facing 8 years in prison.
  • An orthopedic surgeon was sentenced to 13 years in prison for drugging and assaulting 4 female patients (tinyurl.com/paam9mk).

— William W. Landess, CRNA, MS, JD

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