15.8 2. Patient Security

• Jurisdiction: New York

2. Patient Security

A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety.³²³ This does not, however, render a hospital an insurer or require it to keep each patient under constant surveillance.³²⁴

Indeed, the courts regularly dismiss claims against hospitals arising from sexual abuse of patients by employees in the absence of evidence that the employer was or should have been aware of employee’s propensity for sexual misconduct.³²⁵

In N.X., the plaintiff was sexually abused by a surgical resident while she was still under the effects of anesthesia after undergoing vaginal surgery. The resident had no history of this type of conduct and he arrived in the recovery roomed identified and dressed as a hospital resident. Nevertheless, he assaulted the patient in close proximity to three recovery room nurses, who denied witnessing the event. The Court of Appeals thus held that there was a question of fact as to whether the nurses actually observed or unreasonably ignored events immediately preceding the misconduct which indicated a risk of imminent harm to plaintiff, triggering the need for protective action.³²⁶ The Court was careful to emphasize the fact-specific nature of its ruling, and that it was not imposing a “gatekeeping” function upon nurses to stop and question physicians, ascertain reasons for their presence, or to stand guard and monitor their interactions with patients.³²⁷

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Notes:

^[323] . N.X. v. Cabrini Medical Center, 97 N.Y.2d 247, 739 N.Y.S.2d 348 (2002); Killeen v. State of N.Y., 66 N.Y.2d 850, 498 N.Y.S.2d 358 (1985); Morris v. Lenox Hill Hosp., 232 A.D.2d 184, 647 N.Y.S.2d 753 (1st Dep’t 1996), aff’d, 90 N.Y.2d 953, 665 N.Y.S.2d 399 (1997); Clinton v. City of N.Y., 140 A.D.2d 404, 528 N.Y.S.2d 108 (2d Dep’t 1988).

^[324] . Killeen, 66 N.Y.2d at 851–52, citing Hirsh v. State of N.Y., 8 N.Y.2d 125, 202 N.Y.S.2d 296 (1960).

^[325] . See Judith M. v. Sisters of Charity Hosp., 249 A.D.2d 890, 671 N.Y.S.2d 400 (4th Dep’t 1998), aff’d, 93 N.Y.2d 932, 693 N.Y.S.2d 67 (1999); Cornell v. State of N.Y., 60 A.D.2d 714, 401 N.Y.S.2d 107 (3d Dep’t 1977), aff’d, 46 N.Y.2d 1032, 416 N.Y.S.2d 542 (1979); Mataxas v. North Shore Univ. Hosp., 211 A.D.2d 762, 621 N.Y.S.2d 683 (2d Dep’t 1995); Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401, 611 N.Y.S.2d 615 (2d Dep’t 1994); Whidbee v. State of N.Y., 176 A.D.2d 798, 575 N.Y.S.2d 127...