Health Law & Business News

Clergy Sex Abuse Cases Supply Model for Doctor Assault Claims

Jan. 22, 2019, 10:00 AM

The Catholic Church’s settlements resolving accusations it ignored decades of sexual abuse by priests are now serving as a model for how health-care providers are tackling claims they failed to protect patients from doctors’ sexual assault.

Attorneys who represent sexual harassment and abuse victims told Bloomberg Law a practice used by several Catholic dioceses, through which they set up funds to be distributed to abuse victims by a neutral mediator or special master, translates well to the health-care setting.

The practice ensures victims receive fair compensation, Michael Barasch told Bloomberg Law. Barasch, a personal injury and medical malpractice lawyer with Barasch & McGarry in New York, represents claimants in several clergy abuse cases in New York and Pennsylvania..

Providers need a creative solution, like this one, to keep damages from exploding. Multiple lawsuits filed in Michigan, New York, and California against health-care providers “are just the tip of the iceberg,” Kelli Garcia told Bloomberg Law.

Garcia expects more cases, as women—emboldened by the #MeToo movement—are spurred to come forward with stories of abuse during medical examinations or treatments.

Garcia is the director of reproductive justice initiatives and senior counsel at the National Women’s Law Center in Washington, which provides resources to educate hospitals, physicians, and patients about patient sexual abuse.

Common Fund Settlements

Michigan State University already has taken an approach similar to that used by the Catholic dioceses to end claims female gymnasts training there were sexually abused during examinations by Dr. Larry Nassar, according to Barasch.

MSU set up a $500 million fund, made up of $425 million for identified victims plus $75 million to be held in trust for women who come forward in the future. An independent mediator is overseeing the money’s distribution.

The model may work well in other doctor abuse cases as well, Barasch said. Like clergy abuse victims, women sexually abused by their doctors would apply to the mediator or special master for damages.

Individual awards in the New York clergy abuse cases have ranged from $25,000 to $500,000 per person, depending on the type and duration of the abuse and the extent of the harm the victim suffered, Barasch said.

The mediators’ offers are designed to be “fair, consistent, and transparent,” he said.

Sensible Solution

The same type of settlement makes sense in patient sexual abuse cases, Gerry Filippatos said. Filippatos, of New York’s Phillips & Associates, represents individuals in workplace discrimination lawsuits, with an emphasis on gender discrimination and sexual harassment.

A system-wide resolution is sensible when the potential liability is very high, Filippatos said. The greater the exposure, the more likely the case will end in a settlement that applies to a large group of claimants, he said.

There is no telling how much a provider will have to pony up to settle a doctor abuse suit. A proposed $215 million settlement to pay hundreds of women allegedly abused by a University of Southern California doctor is too low, according to some attorneys.

Gloria Allred, who represents about 50 alleged victims of Dr. George Tyndall at USC, called the proposal “grossly inadequate” in a statement released shortly after it was made public in October 2018. One of her clients, Daniella Mohazab, said it made “a mockery” of the victims.

The proposal guarantees each woman would receive at least $2,500. Women willing to “provide further details about their experience” are eligible to receive up to $250,000, according to the proposal.

The USC and Michigan cases are the biggest so far. But there are other lawsuits wending their way through the courts, including one in New York state court in which 18 women accused Columbia University and related entities of failing to take action against physician Robert Hadden.

Hadden, they said, is a serial predator who exploited, abused, harassed, and molested an unknown number of women over 20 years. He has been convicted on criminal charges.

Another California federal court case says in a Jan. 7 amended complaint that Huntington Memorial Hospital allowed physician Patrick Sutton to continue practicing there after numerous patients complained about his inappropriate conduct.

More Than Money

Promises to take proactive steps to stop abuse should be a part of any case resolution, Garcia said. A settlement agreement should detail new procedures and policies, such as requiring a third party to be in the room and in a position to observe the doctor’s actions at all times, she said.

USC told Tyndall’s alleged victims it has made “sweeping changes” to its student health system. These include creating a new unit to take charge of its complaint monitoring and investigation system, a new online reporting system, and new pamphlets explaining to patients exactly what they can expect to take place during examinations.

Being proactive and offering to “do the right thing” before litigation get too advanced is a must for providers, Barasch said. Early settlements that work out fair solutions, as opposed to long, drawn-out court proceedings, may reduce costs and alleviate bad publicity, Filippatos said.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergtax.com

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