Patient Receives $65 Million in Punitive Damages Following Hospital Assault

Posted January 18, 2012 in Labor and Employment by Anne Gallagher

A 34-year old California woman received one of the largest punitive damages awards ever – $65 million – after a jury ruled in her favor in the sexual harassment suit she brought against Encino-Tarzana Regional Hospital, alleging a sexual abuse incident while she was in the hospital.  After only about an hour of deliberations, the jury ruled in favor of Courtney Rosenberg and against the hospital, agreeing that she was abused by a male nursing assistant who had been previously reported to the hospital for engaging in similar dicey behavior. 

In discussing its deliberations, the jury foreman explained that jurors believed the hospital could have taken action sooner against the assailant following the complaints of other female patients.  The assailant — Ramon Rodas Gaspar — was profiled on the Fox television show America’s Most Wanted (AMW) in 2008 and 2009 and remains a fugitive. After posting bail following his arrest, Gaspar fled.

Rosenberg had surgery at the hospital in April 2006 to remove an ovarian cyst.  According to AMW’s file on Gaspar, he is a serial rapist who had used his position at the hospital to sexually abuse and molest at least 10 other women.    In the Rosenberg case, Gaspar purportedly insisted on “checking” her stitches and lifted her gown to look at her vagina.  He told Rosenberg that her panties were cute and that she was attractive.  Throughout the duration of her stay, Gaspar “examined” her with his bare hands including sexually molesting her before she left the hospital.  Rosenberg told AMW, “He went down without any gloves and started inspecting me and put his fingers inside of me… and then my mom walked in and, and stopped it.” 

As a result of the assault, Rosenberg was unable to work in her field as a marriage and family therapist intern.  She suffers from post-traumatic stress disorder, takes medication for depression, saw a psychiatrist and experiences panic attacks.

Lis Sharp

Chicago attorney Liz Sharp

According to employment lawyer Liz Sharp of The Law Offices of Elizabeth D. Sharp, this case is unusual in that the hospital purportedly had received prior reports of misconduct against Gaspar and appeared to continue to allow him to work with patients. “We expect nurses to be care givers, not assaulters,” she said. “Generally speaking, an employer is not held liable for the acts of their employees when they have taken reasonable [precautions] to prevent an action from recurring. Here, it looks like they knew of the prior reports and did nothing. Given the heinous nature of what occurred, I’m not surprised that the jury responded with such a large punitive damage award.”

In Illinois, where Sharp practices, the standard in sexual harassment claims is whether the employer responded with appropriate remedial action reasonably likely under the circumstances to prevent the conduct from recurring.

Sharp explains that employers should have written policies and procedures in place that include specifics such as:

 

  • The designated people to whom such reports can be made;
  • An offer to the claimant to make an informal or a formal investigation;
  • The specific steps for an informal or formal investigation
  • An assurance that no retaliation will come to a claimant and;
  • A warning that if harassment is found, an appropriate sanction including termination may result.

 

By failing to protect patients from Gaspar, knowing of his past behavior, the hospital opened itself to a lawsuit of this nature. “To protect against negligence liability, an employer should have strong and swift policies in place when this type of behavior occurs.  If something bad happens once and the procedures are in place, the employer might be able to protect themselves from liability.  If it happens twice and the procedures are not in place, well, look at what happened in this case.  It says it all,” says Sharp.

 

 

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