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Hospital Escapes Claims Based on Surgeon’s Fondling of Patient

May 6, 2020, 1:26 PM

A Nebraska hospital won’t face a claim that it’s vicariously liable for a medical staff doctor’s alleged sexual abuse of an anesthetized patient, a federal court in the state said.

A.W.'s failure to allege that Mark Dietrich was acting within his capacity as an employee of Nebraska Medical Center when he allegedly fondled her vagina while performing knee surgery prevented her from moving forward on the vicarious liability claim, the U.S. District Court for the District of Nebraska said Tuesday.

Allegations that Dietrich’s conduct took place in a Nebraska Medical Center facility, that he had privileges at the facility, that he “targeted” and gained access to A.W. as a patient at the facility, and that Nebraska Medical Center made money from employing him weren’t sufficient to raise a claim that Dietrich’s inappropriate sexual touching took place within the scope of his employment, the court said.

Nebraska state courts have said that acts of sexual assault or harassment don’t fall within the scope of an employee’s employment, the court said.

The court also dismissed A.W.'s fraudulent concealment claim against the hospital. A.W. didn’t plead that Nebraska Medical Center had a duty to tell her about previous complaints about Dietrich’s alleged sexual misconduct, it said.

A.W. can proceed on claims that the hospital negligently supervised Dietrich and on battery and fraudulent concealment claims against him, the court said.

The court denied Dietrich’s motion to strike language in the complaint that referred to him as a “sexual predator,” accused him of “groping,” “fondling,” and “preying” upon A.W., and said Dietrich touched “the sexual and private parts of anesthetized patients for purposes of personal gratification.”

The complaint set out allegations that are essential to A.W.'s claim, the court said. It didn’t use “unnecessarily graphic descriptions,” “salacious language,” or accuse Dietrich of committing a crime, it said.

Judge Brian C. Buescher wrote the complaint.

Chaloupka Holyoke Snyder Chaloupka & Longoria PC and Inserra Kelley Sewell represent A.W.

Baird Holm LLP represents Nebraska Medical Center. Sodoro Mooney & Lenaghan represents Dietrich.

The case is A.W. v. Nebraska Med. Ctr., 2020 BL 167586, D. Neb., No. 8:19-cv-342, 5/5/20.

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

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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