Actions for Sexual Assault Incidental to Medical Treatment Placed Outside the Scope of Medical Liability

Ex parte Vanderwall, — So.3d — 2015 WL 5725153 (Ala. 2015)

Ex parte Vanderwall, — So.3d — 2015 WL 5725153 (Ala. 2015), is a new important decision that defined “medical malpractice” to identify suits adjudicated under special defendant-friendly rules. As I explained hereherehereherehereherehere, and in a foundational article on the subject, categorizing a suit as sounding in “medical malpractice”—as opposed to “ordinary negligence,” “assault” or “battery”—determines whether the plaintiff must satisfy rigid limitations and repose provisions, comply with special requirements with regard to expert testimony, face the difficult burden of proving the defendant’s deviation from professional customs, and, in the end, suffice herself with the compensation amount limited by the statutory cap on damages.

In Vanderwall, this categorization determined whether a patient could use past instances of sexual misconduct incidental to medical treatment to prove that the therapist responsible for that misconduct sexually assaulted her as well. Such evidence is generally admissible as modus operandi (under Federal Rule of Evidence 404(b)(2) and its state equivalents) or for any other relevant purpose (under Federal Rule of Evidence 415 and its state equivalents).

Alabama law, however, has made an exception to this general admissibility rule. This exception protects defendants in medical malpractice actions by making their prior professional misconduct inadmissible and not discoverable. Specifically, it prohibits “conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission” that constitutes medical malpractice. The Alabama Medical Liability Act, Ala. Code 1975 § 6–5–551.

There is a potential clash between this evidentiary privilege and the Healthcare Quality Improvement Act of 1986 (HCQIA). The HCQIA requires that any payment made pursuant to a verdict or a settlement in a medical malpractice case be reported to the National Practitioner Data Bank. 42 U.S.C.A. § 11131. The HCQIA also provides that “With respect to a medical malpractice action, a hospital which does not request information respecting a physician or practitioner … is presumed to have knowledge of any information reported under this subchapter to the Secretary with respect to the physician or practitioner.” 42 U.S.C.A. § 11135(b). This constructive notice is of paramount importance. When a hospital fails to obtain negative information about a physician to whom it grants attending privileges, it exposes itself to liability for negligent credentialing: see here. The Alabama privilege may obstruct the implementation of the federal constructive notice, and when it does so it will be overridden by federal law. Pierce County v. Guillen, 537 U.S. 129, 146-47 (2003); Brown v. Western Ry. Co. of Ala., 338 U.S. 294, 296 (1949) (holding in relation to state procedures that a “federal right cannot be defeated by the forms of local practice”).

In the case at bar, the plaintiff made no negligent-credentialing allegations against the clinic that employed the therapist. Instead, she sued the therapist for wrongdoings incident to her treatment, which she properly described as sexual assault. The patient then sought discovery of the information pertaining to the therapist’s sexual misconduct with other patients. In response, the therapist invoked the evidentiary privilege pursuant to the Alabama Medical Liability Act.

The Alabama Supreme Court held that the therapist was not protected by the privilege. The privilege, it explained, only applies in actions for “medical malpractice,” which do not include suits that seek remedies for sexual assault on a patient. This ruling overturned the Court’s prior precedent that gave an exceedingly broad interpretation to what constitutes an action for “medical malpractice.” The Court noted in that connection that “Stare decisis is a golden rule, not an iron rule.”

One should be careful not to interpret this new decision as allowing plaintiffs to avoid the application of restrictive medical-malpractice rules by casting their complaints against providers of medical care into the language of “ordinary negligence” or “assault.” Alabama law does not allow it: see Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (applying medical malpractice rules to a suit involving a nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery). The Vanderwall precedent will only apply to patients who sue medical care providers for sexual misconduct. As such, it constitutes a welcome development that takes doctrine in the right direction.