Employee Bad Acts

Typically speaking, under the law, when a hospital employee is committing these so-called “bad acts,” that employee is not acting in the course of employment because he or she is inarguably going beyond the job description. However, these bad acts are being committed while under cover of the course of employment. While these acts could ultimately be determined to be a “superseding intervening” cause for which the hospital and/or medical institution bears no responsibility, there are circumstances where the medical employer can be held liable for money damages in a civil action. So how should the plaintiff's attorney proceed against a hospital and/or medical institution when seeking to hold it civilly liable for the bad acts of its employees?

A Notorious Case

Much of society is aware of the so-called “Angel of Death” case involving serial killer Charles Cullen. A nurse, Cullen ultimately admitted to killing at least 40 patients in his care, but he was suspected of murdering hundreds. A criminal court handed down six life sentences to Cullen in 2006 after he admitted poisoning to death at least 40 people in New Jersey and Pennsylvania over the course of his 16-year nursing career.

The facts of the civil case revealed that when Cullen was hired at Saint Luke's University Hospital in Bethlehem, PA, he had already been fired or forced to resign from five other hospitals. Incredibly, none of this was in his file with the state nursing board. During the course of Cullen's employment, St. Luke's staff and management began suspecting unusual behavior on his part. The hospital asked him to resign on the promise that it would give him “neutral references.” (Years later, Cullen admitted to killing five patients at St. Luke's Hospital.)

Cullen was then hired as a critical care nurse at New Jersey's Somerset Medical Center, where he administered lethal injections to 13 patients over 13 months. Cullen's actions went undetected until a Roman Catholic priest died unexpectedly overnight while recovering from pneumonia. The hospital then discovered that the priest had high levels of the heart drug digoxin in his blood when he died. It was the second unexplained overdose in two weeks, and the death set in motion the events leading up to Cullen's arrest.

After Cullen was convicted, his victims' families brought civil suits to recover damages for the deaths of their loved ones. Understanding that Cullen was penniless and would be unable to pay any ultimate jury award, they sued both Cullen and his employer, Pennsylvania's St. Luke's University Hospital.

One would think that Mr. Cullen's startling background of being fired from five hospitals previous to his employment at St. Luke's would have formed the basis for strong civil lawsuits. Restatement (Second) of Torts Section 447 entitled “Negligence of Intervening Acts” provides that although an intervening act of a third person is negligent in itself or is done in a negligent manner, it does not make it a superseding cause of harm to another person even if the actor's negligent conduct is a substantial factor, if: 1) the actor at the time of his negligent conduct should have realized that a third person might so act; or 2) a reasonable person knowing the situation when the act of the third person was committed would not regard it as highly extraordinary that the person had so acted; or 3) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent. But the Cullen civil damages case did not turn out as one might expect.

The Outcome

On June 30, 2009, Lehigh County Trial Judge Edward D. Reibman, after extensive discovery conducted over a long period of time, granted the hospital's Motion for Summary Judgment and dismissed all claims against it. In an unpublished decision, the Superior Court of Pennsylvania (the appellate court) upheld the trial court's 2010 decision, and the case against the hospital came to an official end. Although the jury awarded the families $95 million against Mr. Cullen himself, nothing, of course, was ever collected.

The Court's Reasoning

It is important to note the basis for the grant of the Motion for Summary Judgment to St. Luke's Hospital. The court there did not find that the plaintiff could not state a cause of action against the hospital for negligence. The elements of the civil claim against the hospital were the same as for any other negligence claim: 1) Duty; 2) Breach of duty; 3) Causation; and 4) Damages. The court dismissed the lawsuit because it found that the plaintiff could not establish medical causation. Rather, the trial court accepted the Hospital's argument that even if it could be established that a breach of a duty of care on behalf of the hospital resulted in Cullen's improper administration of medicines, the lack of medical testimony with respect to causation of the patients' deaths would render it impossible for a fact finder to rationally conclude that Cullen's actions caused harm to the decedents.

If a jury reached such a result based on the evidence the plaintiffs were prepared to present, it would be based only on speculation. So, despite the admissions against Cullen garnered from the criminal convictions, the court would not apply those admissions to the hospital for purposes of finding causation. (After winning on appeal, St. Luke's then claimed that the families sued the hospital despite having no direct knowledge or evidence that Cullen played a role in the deaths. The hospital sued the families and their attorneys in 2011 under the Dragonetti Act, a Pennsylvania law that allows defendants to counter-sue following unsuccessful litigation if they can prove the original plaintiff's suit was frivolous. The hospital sought to recover more than $560,000 in legal costs and at least $50,000 in punitive damages. The case went to verdict and the jury ruled in favor of the families and against St. Luke's.) Essentially, while it was apparent to all involved with the case that Cullen had killed the patients, the plaintiffs could not overcome the legal obstacle of causation to meet their burden of proof.

Next month we will discuss causes of action that may be available against health care facilities when employee “bad actors” commit crimes or torts that harm patients.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, PC, in Newtown, PA.

Intuitively, one can appreciate that if an individual is otherwise inclined to harm another through bad behavior, having the cover of a job as a medical professional or medical support staff member seems like an ideal opportunity to commit the perfect crime. After all, those working in a hospital or other medical setting enjoy the implied trust that comes with a job as a medical professional or quasi medical professional. In addition, the bad actor in the medical setting is exposed to patients with explicit and sometimes severe vulnerabilities, providing ready-made victims.

Bad Acts

Bad acts can range from using the position to steal and then sell prescription medicine, to sexual assault, to unwarranted medical procedures causing physical and financial harm to the patient, and even to murder.

Typically speaking, under the law, when a hospital employee is committing these so-called “bad acts,” that employee is not acting in the course of employment because he or she is inarguably going beyond the job description. However, these bad acts are being committed while under cover of the course of employment. While these acts could ultimately be determined to be a “superseding intervening” cause for which the hospital and/or medical institution bears no responsibility, there are circumstances where the medical employer can be held liable for money damages in a civil action. So how should the plaintiff's attorney proceed against a hospital and/or medical institution when seeking to hold it civilly liable for the bad acts of its employees?

A Notorious Case

Much of society is aware of the so-called “Angel of Death” case involving serial killer Charles Cullen. A nurse, Cullen ultimately admitted to killing at least 40 patients in his care, but he was suspected of murdering hundreds. A criminal court handed down six life sentences to Cullen in 2006 after he admitted poisoning to death at least 40 people in New Jersey and Pennsylvania over the course of his 16-year nursing career.

The facts of the civil case revealed that when Cullen was hired at Saint Luke's University Hospital in Bethlehem, PA, he had already been fired or forced to resign from five other hospitals. Incredibly, none of this was in his file with the state nursing board. During the course of Cullen's employment, St. Luke's staff and management began suspecting unusual behavior on his part. The hospital asked him to resign on the promise that it would give him “neutral references.” (Years later, Cullen admitted to killing five patients at St. Luke's Hospital.)

Cullen was then hired as a critical care nurse at New Jersey's Somerset Medical Center, where he administered lethal injections to 13 patients over 13 months. Cullen's actions went undetected until a Roman Catholic priest died unexpectedly overnight while recovering from pneumonia. The hospital then discovered that the priest had high levels of the heart drug digoxin in his blood when he died. It was the second unexplained overdose in two weeks, and the death set in motion the events leading up to Cullen's arrest.

After Cullen was convicted, his victims' families brought civil suits to recover damages for the deaths of their loved ones. Understanding that Cullen was penniless and would be unable to pay any ultimate jury award, they sued both Cullen and his employer, Pennsylvania's St. Luke's University Hospital.

One would think that Mr. Cullen's startling background of being fired from five hospitals previous to his employment at St. Luke's would have formed the basis for strong civil lawsuits. Restatement (Second) of Torts Section 447 entitled “Negligence of Intervening Acts” provides that although an intervening act of a third person is negligent in itself or is done in a negligent manner, it does not make it a superseding cause of harm to another person even if the actor's negligent conduct is a substantial factor, if: 1) the actor at the time of his negligent conduct should have realized that a third person might so act; or 2) a reasonable person knowing the situation when the act of the third person was committed would not regard it as highly extraordinary that the person had so acted; or 3) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent. But the Cullen civil damages case did not turn out as one might expect.

The Outcome

On June 30, 2009, Lehigh County Trial Judge Edward D. Reibman, after extensive discovery conducted over a long period of time, granted the hospital's Motion for Summary Judgment and dismissed all claims against it. In an unpublished decision, the Superior Court of Pennsylvania (the appellate court) upheld the trial court's 2010 decision, and the case against the hospital came to an official end. Although the jury awarded the families $95 million against Mr. Cullen himself, nothing, of course, was ever collected.

The Court's Reasoning

It is important to note the basis for the grant of the Motion for Summary Judgment to St. Luke's Hospital. The court there did not find that the plaintiff could not state a cause of action against the hospital for negligence. The elements of the civil claim against the hospital were the same as for any other negligence claim: 1) Duty; 2) Breach of duty; 3) Causation; and 4) Damages. The court dismissed the lawsuit because it found that the plaintiff could not establish medical causation. Rather, the trial court accepted the Hospital's argument that even if it could be established that a breach of a duty of care on behalf of the hospital resulted in Cullen's improper administration of medicines, the lack of medical testimony with respect to causation of the patients' deaths would render it impossible for a fact finder to rationally conclude that Cullen's actions caused harm to the decedents.

If a jury reached such a result based on the evidence the plaintiffs were prepared to present, it would be based only on speculation. So, despite the admissions against Cullen garnered from the criminal convictions, the court would not apply those admissions to the hospital for purposes of finding causation. (After winning on appeal, St. Luke's then claimed that the families sued the hospital despite having no direct knowledge or evidence that Cullen played a role in the deaths. The hospital sued the families and their attorneys in 2011 under the Dragonetti Act, a Pennsylvania law that allows defendants to counter-sue following unsuccessful litigation if they can prove the original plaintiff's suit was frivolous. The hospital sought to recover more than $560,000 in legal costs and at least $50,000 in punitive damages. The case went to verdict and the jury ruled in favor of the families and against St. Luke's.) Essentially, while it was apparent to all involved with the case that Cullen had killed the patients, the plaintiffs could not overcome the legal obstacle of causation to meet their burden of proof.

Next month we will discuss causes of action that may be available against health care facilities when employee “bad actors” commit crimes or torts that harm patients.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, PC, in Newtown, PA.