In a new twist to an all-too-common story, a female nurse has been accused of sexually assaulting her male patient while being intoxicated (she allegedly blew a .16, which is twice the legal limit for driving). According to court records, police reviewed video evidence that corroborated the patient's account of events.
Unfortunately for many patients who have been sexually assaulted by healthcare professionals while in their most vulnerable state, the current laws in Georgia make it very difficult to hold employers accountable for that behavior. The Georgia Supreme Court held inPalladino, decided in 2003, that unless an employer had prior knowledge of the employee's proclivity for the type of misconduct being alleged, the employer cannot be held responsible for the intentional tort of the employee. On one level that reasoning makes sense ? it would be unfair to hold an employer liable for something that an employee does out of the blue. On the other hand, however, it encourages an employer to take the "ignorance is bliss" approach with employees. If an employer is not diligent about documenting an employee's bad behavior, when an issue like this arises it is often difficult for a victim to prove the employer knew or should have known this behavior was foreseeable. In cases where an employer did not know about an employee's behavior, and the behavior is "outside the scope" of his employment, a victim's only recourse would be a lawsuit against the individual employee ? someone who likely has no assets. In essence, that leaves victims without recourse.
This same legal theory holds true for other professions, not just healthcare professionals. To find an employer liable, the victim must prove the employer knew or should have known about the potential for the employee's behavior, or the behavior must have occurred within the scope of the employee's employment. To understand how difficult this prong is to overcome ? in Palladino, a male nurse was accused of fondling a patient while preparing the patient's groin area for a procedure. The Court held that, even though touching the groin area was within the scope of employment, once the employee began fondling the groin for sexual gratification, his actions did not benefit his employer any longer, and he was outside the scope of his employment. Effectively, almost every intentional tort will be considered outside the scope of employment (except in cases like bar bouncers who injure a patron, or similar factual situations).
All of these cases are very fact specific, so if you or someone you know have been a victim of sexual assault or otherwise been harmed by someone while they are on duty, contact a skilled Georgia Sexual Assault Attorney as soon as possible to ensure important evidence is preserved, and your case is thoroughly evaluated. These cases turn on very specific facts, and you want an attorney who is familiar with the intricacies of these cases fighting for you.