There are many fears one may have when faced with the prospect of going under anesthesia for a medical procedure. Not likely among the many thoughts you may have, however, is that a medical professional would take advantage of you while in this vulnerable state. Even though this risk may not spring to mind, it certainly is not impossible. Indeed, in a recent decision, Goldstein, Garber & Salama, LLC v. JB, the Georgia Court of Appeals addressed what liability may exist for a dental practice following the sexual assault of a patient by one of the company’s employees.
The sexual assault at issue in this case occurred on September 16, 2009. On that day, the plaintiff, a patient at an Atlanta dental practice facility, was set to undergo a three-part dental procedure. During phase one, a post for a tooth implant was installed, which required that the plaintiff be administered anesthesia. Following the completion of this phase, the plaintiff was still in a heavily sedated state, which lasted for approximately the next two hours. During these two hours, prior to the beginning of the second stage, the plaintiff was left alone with one of the dental practice’s Certified Registered Nurse Anesthetists. The nurse, a male, made three lewd videos with the plaintiff. These recordings were discovered afterward when the nurse’s phone was discovered secretly recording employees in the office’s restroom. An examination of the phone revealed that the nurse had made a number of other videos with anesthetized patients. In a subsequent criminal prosecution, the nurse pled guilty to a number of charges related to these activities and was sentenced to life in prison.
The patient brought suit against the dental practice, alleging, inter alia, negligence per se and professional negligence. The case proceeded to a trial, at which expert evidence was presented to establish that the dental practice had violated certain statutory requirements for supervising nurse anesthetists and for monitoring patients under anesthesia. At the conclusion of the trial, the defendants moved for a directed verdict, which the trial court denied. The jury ultimately returned a favorable verdict for the plaintiff and awarded her $3.7 million. The dental practice appealed.
On appeal, the dental practice argued that the trial court improperly denied its motion for a directed verdict because the plaintiff failed to prove either negligence per se or professional negligence. Specifically, the practice argued that the plaintiff had failed to establish the proximate cause necessary for either theory of negligence. Furthermore, the practice argued that the negligence per se claim could not stand because the statutes at issue that were violated are not intended to prevent the type of harm incurred by the plaintiff, and, separately, the professional negligence claim could not stand because the conduct at issue did not involve the exercise of professional judgment or skill. A majority of the Georgia Court of Appeals disagreed, however, and affirmed the trial court’s ruling.
First, with respect to the proximate causation argument, it is a common proposition in torts that an intervening criminal act by a third party typically breaks the chain of causation between a defendant’s purported negligence and the harm occasioned by a plaintiff, for it is generally presumed that such criminal conduct by the third party is not foreseeable. See, e.g., Zaldivar v. Prickett, 297 Ga. 589, 601-02 (2015). However, “[i]f the character of the intervening act was such that its probable or natural consequences could reasonably have been . . . foreseen by the original wrong-doer, the causal connection is not broken.” Id. In the case at hand, the majority found that the type of harm inflicted on the anesthetized patient was not unforeseeable as a matter of law. Indeed, the evidence showed that the plaintiff had been given inordinate amounts of anesthesia—which was administered by a soon-to-be abuser—and the dentists did not undergo the training required of those who supervise nurse anesthetists. This left the plaintiff in a particularly vulnerable state, during which she could be harmed. Although the particular type of conduct at issue here may not have been readily foreseeable, it was nonetheless within the ambit of conduct that could be anticipated, especially if one considers the expert testimony proffered on behalf of the plaintiff, conveying that the requirements for monitoring anesthetized patients that were not adhered to in this instance were designed, at least in part, to prevent this variety of conduct. Accordingly, the sexual abuse was not “so unusual . . . that no reasonable jury could find” that the defendant need not have guarded against it. Med. Ctr. Hosp. Auth. v. Cavender, 331 Ga. App. 469, 475 (2015).
In addition, the majority rejected the defendant’s argument that the statute cited by the plaintiff for the purposes of establishing negligence per se was not designed to prevent the sexual abuse at issue here. The statute, O.C.G.A. § 43-11-21.1, provides standards for dentists when supervising a nurse anesthetist administering anesthesia. Among the standards outlined in this statute are those for the supervision of the nurse. The evidence adduced during trial showed that these standards were not followed and that the dentists were not equipped to recognize that the plaintiff had been over-sedated. Although the dissenting judges of the Court of Appeals argued that the risks that were meant to be protected by the statute were medical risks, the majority found no such limitation in either the statutory text or the legislative history. Instead, the majority reasoned that the statute was designed to also guard against foreseeable non-medical risks, including the risk of patient abuse.
Similarly, the majority summarily rejected the argument that this case falls beyond the ambit of professional negligence. Professional negligence “exists when the . . . claim addresses the propriety of a professional decision rather than the efficacy of conduct in . . . carrying out [the] decision.” King v. Dodge Cnty. Hosp. Auth., 274 Ga. App. 44, 45-46 (2005). In this action, the majority found that the evidence was focused on the propriety of the professional decision made by the dentist in performing the procedure, not on the efficacy of that conduct. Accordingly, the claim properly fell within the sphere of professional negligence. After addressing minor concerns related to evidentiary rulings and the waiver of the defendant’s apportionment argument, the Court of Appeals affirmed the trial court’s ruling.
As the Court’s divided opinion shows, establishing causation and, by extension, liability for a third party’s criminal conduct is often difficult. However, this challenge arises in a variety of areas, such as negligent security cases or weapon distributor litigation. Although establishing causation is not simple in these cases, it can be done, and one should not believe his options are limited to suing the criminal directly at fault. The guidance of counsel can be useful for those wondering whether a party may be liable in these circumstances, and those harmed by criminal acts should consider seeking the assistance of an attorney in order to determine whether liability may extend beyond the criminal actor. The Atlanta sexual assault attorneys at the Simon Law Firm have considerable experience in this area of the law, and they are ready to offer you assistance if you happen to be in this position. Feel free to contact us if you are interested in a free case evaluation to discuss the viability of your potential claim.