Professional liability policies include a list of exclusions. It will not pay out for such exclusions.
One exclusion related to a contention of “Sexual Conduct.”
Exclusion: “Liability arising from any Claim that includes contentions or descriptions of Sexual Conduct by you or anyone for whom you may be legally responsible.”
That policy defines Sexual Conduct as:
“sexually suggestive contact or activity, engaging in or soliciting sexual relations, sexual abuse, sexual assault, sexual battery, sexual intimacy, sexual exploitation, sexual harassment, or any acts punishable as a sexually related crime.”
What if the physician is alleged to have sexually assaulted a patient during an authorized medical examination?
Well, the Indiana Supreme Court just ruled in Indiana Department of Insurance and Indiana Patient’s Compensation Fund, Appellants versus Jane Doe and John Doe I, individually and as next friends and legal guardians of John Doe II, and Jonathon Cavins and Board of Trustees of Anonymous Hospital. (Supreme Court Case No. 23S-CT-306).
The answer is that the carrier (in this case, the Patient Compensation Fund) may have to write a check.
Some background on Indiana’s professional liability payment statutes.
Indiana’s Medical Malpractice Act dates back to the mid-1970s and was enacted when Indiana had a physician elected as governor of the state…
Moreover, the Act requires that before a medical malpractice lawsuit can proceed to court, the case must first be reviewed by a panel of healthcare professionals.
- For claims arising before July 1, 2017, the Act imposed a total cap of $1.25 million on the combined damages for the injured patient, including both economic and non-economic damages.
- For claims occurring after July 1, 2017 and prior to July 1, 2019, the total cap was $1.65 million.
- For claims arising after July 1, 2019, the cap is $1.8 million.
Regarding insurance payment, the physician (or his carrier) makes the first dollar payment. The Patient’s Compensation Fund (PCF), a state-based entity, pays the remainder, if any.
- Participating physicians pay to the PCF
- Health care provider or the provider’s insurer pays first $400,000, increasing to $500,000 on July 1, 2019
So, if a physician has paid the annual surcharge into the PCF, and the settlement/judgment is say, $1.2M, that doctor (or his carrier) would pay the first $500k – assuming the medical event occurred after July 1, 2019. The PCF would pay the excess $700k. For a total of $1.2M. Those physicians who pay the surcharge into the PCF get the benefit of the cap on liability per injury.
Back to the case:
“In February 2019, twelve-year-old John Doe II (“Child”) visited Anonymous Hospital to see his longtime pediatrician, Dr. Jonathon Cavins, for a sports physical.1 Child arrived at the hospital with his father, mother, brother, and sister, but Child and Dr. Cavins were alone in the examination room during the appointment. Child completed a depression screening, and Dr. Cavins then stepped out of the room while Child took off his clothes and put on a gown for the examination. The examination included Dr. Cavins checking Child for a hernia and discharge from his penis, both of which required Dr. Cavins to touch Child’s genitals. During the examination, Dr. Cavins asked Child about sexual activity, and they discussed “things that could happen . . . if you were engaged in sex.” Dr. Cavins also asked Child whether he wanted to see a condom. Child declined, but Dr. Cavins took one out anyway and asked Child to feel it.
Dr. Cavins then began to stroke Child’s penis. Next, he placed the condom on Child’s penis and returned to stroking it. Dr. Cavins then explained how to remove and dispose of the condom. The exam ended, and Child returned to his family. After Child disclosed these events, his parents, John Doe I and Jane Doe, filed a medical malpractice action with the Indiana Department of Insurance (DOI) against Dr. Cavins as well as his employer, Anonymous Hospital, and its Board of Trustees. The complaint alleged that Dr. Cavins “engaged in inappropriate sexual conduct” with Child and included a claim against Anonymous Hospital and the Board of Trustees for negligently credentialing Dr. Cavins. About two years later, the Does and the Board of Trustees (“Hospital”) reached a confidential settlement agreement in which the Hospital agreed to pay a total of $400,000—its maximum liability for damages under the MMA [based on the date of the alleged injury – which was prior to more recent adjustment up to $500,000] See Ind. Code § 34-18-14- 3(b)(2). The agreement explained that it entitled the Does to seek excess compensation from the Indiana Patient’s Compensation Fund. But it also specified that if the Fund “successfully reject[ed]” the agreement, then it would “be null and void.”
Following the settlement, the Does petitioned for excess compensation from the Fund, and both Dr. Cavins and the Hospital intervened. The Does alleged that Child had “suffered from a sexual assault by” Dr. Cavins “during a routine physical examination that occurred” while Dr. Cavins was “providing medical care to” Child.”
After answering the petition, the [Department of Insurance}] and the Fund (collectively “Defendants”) moved for summary judgment, arguing that the Does’ claims fell outside the Medical Malpractice Act (MMA) because “sexual conduct cannot constitute a rendition of health care…
After a hearing, the trial court summarily denied the Defendants’ motion…
On interlocutory appeal, a divided panel of our Court of Appeals reversed in a published opinion, concluding the Defendants were entitled to summary judgment. Ind. Dep’t of Ins. v. Doe, 211 N.E.3d 1014, 1025 (Ind. Ct. App. 2023)….
The majority held … Dr. Cavins’s sexual misconduct did not constitute medical malpractice. Id. at 1018, 1021…
The Does and the Hospital petitioned for transfer, which we granted, vacating the Court of Appeals’ opinion. See Ind. Appellate Rule 58(A)”
How did the Indiana Supreme Court rule?
It stated that an allegation of sexual misconduct does not de jure rule out an allegation of medical malpractice, with an excess payment compensable by the Patient Compensation Fund. It depends on the details.
“[W]e conclude that claims premised on sexual assault by a physician during an authorized medical examination can fall within the MMA if the alleged misconduct stems from an inseparable part of the health care being rendered. Finally, because the designated evidence confirms that Dr. Cavins’s sexual misconduct stemmed from an inseparable part of an otherwise proper medical examination that required touching Child in sensitive areas, we hold that the Defendants have failed to show they are entitled to judgment as a matter of law. As a result, the Defendants are not entitled to summary judgment….
The Defendants argue that Dr. Cavins’s sexual assault fell “so far outside the scope of medicine” that it couldn’t possibly relate to health care. The Does, however, assert that Dr. Cavins “was authorized to touch” Child “by way of a hernia and discharge test” and the assault “arose out of this authorized conduct.” The Hospital similarly contends that Dr. Cavins’s actions were “sufficiently intertwined with legitimate medical care such that the claims against him fell within the purview of the MMA.” We ultimately agree with the Does and the Hospital….
From these relevant definitions, it follows that sexual assault is a “tort” constituting “malpractice” if it is based on “an act or treatment performed or furnished . . . by a health care provider for, to, or on behalf of a patient” during their “medical care, treatment, or confinement.” Id.; see also Popovich v. Danielson, 896 N.E.2d 1196, 1202 (Ind. Ct. App. 2008) (holding that a physician’s battery of a patient “while he was evaluating [her] injuries” fell within the MMA), trans. denied. Thus, the statutory text alone confirms that a patient’s claim of sexual assault by a physician during a medical examination can fall within the MMA.”
The Indiana Supreme Court noted that most claims of a physician sexually assaulting a patient will NOT be connected to the doctor-patient relationship or anything connected to the delivery of healthcare. But in the course of legitimately examining sensitive areas, there is a gray zone area of conduct that is arguably related to the delivery of healthcare. And Indiana is not an outlier state.
“The requisite connection is more likely to be present when, as here, a physician sexually assaults a patient during an authorized medical examination that calls for touching the patient in sensitive areas. In these circumstances, other states have concluded that the sexual misconduct can be an “inseparable part of the health care being rendered.” Hagan v. Antonio, 397 S.E.2d 810, 812 (Va. 1990). For example, the Virginia Supreme Court— applying nearly identical definitions of “malpractice,” “health care,” and “tort”—has held that a physician’s alleged sexual assault of a patient during a breast examination constituted malpractice. Id. at 811–12. The South Dakota Supreme Court has similarly held that improper sexual contact during a pelvic examination constituted malpractice. Martinmaas v. Engelmann, 612 N.W.2d 600, 603, 608 (S.D. 2000). The Wisconsin Supreme Court has likewise recognized that “there are medical reasons for a physician to touch a patient’s genitals in the course of a legitimate physical examination.” Doe 56 v. Mayo Clinic Health Sys.–Eau Claire Clinic, Inc., 880 N.W.2d 681, 691 n.13 (Wis. 2016). And Hawaii’s Intermediate Court of Appeals has concluded that a doctor’s finger penetrating a patient’s vagina or anus during a physical examination “can be a sexual assault that is classified as an inseparable part of examination or treatment.” Doe v. City & Cnty. of Honolulu, 6 P.3d 362, 373 (Haw. Ct. App. 2000) (quotations omitted). These decisions reflect the reality that not all allegations of sexual assault against physicians are alike.”
The Patient Compensation Fund noted that there were no prior cases of sexual assault being treated as falling under the Indiana MMA, and compensable. The Court said this case was different.
“In fact, every reported decision in Indiana involving sexual assault by a health care provider has involved misconduct entirely disconnected from authorized medical care or treatment. 4 See Collins, 552 N.E.2d at 509 (doctor, who had a nearly four-year sexual relationship with a patient, used medical instruments “after ordinary office hours” to cause a miscarriage during an examination that was purportedly to determine only “whether she was pregnant”); 5 Doe by Roe, 652 N.E.2d at 102, 104 (mental health counselor coerced a minor patient admitted for psychiatric treatment to engage in sexual intercourse); Murphy, 684 N.E.2d at 1186 (therapy technician molested an unconscious, restrained patient who had been in an automobile accident); Fairbanks Hosp., 895 N.E.2d at 734 (guidance counselor made several unwanted sexual advances toward a patient who was admitted for substance-abuse treatment); Doe, 194 N.E.3d at 1198–99 (registered nurse twice sexually assaulted an ICU patient who had suffered a stroke). The misconduct in each of these cases lacked a “causal connection” to the “patient-health care provider relationship,” Metz, 115 N.E.3d at 495 (quotation omitted), or to “curative or salutary conduct,” Gordon, 952 N.E.2d at 185 (quotation omitted), and did not implicate the professional standard of care, which is “the quintessence of a malpractice case,” Van Sice v. Sentany, 595 N.E.2d 264, 267 (Ind. Ct. App. 1992). Indeed, no case before now involved a sexual assault stemming from an inseparable part of the health care being rendered. As such, there has never been—as the dissent contends—a “bright-line rule” placing all sexual assaults categorically outside the MMA. Post, at 2….
And when a physician sexually assaults a patient during an authorized medical examination that calls for touching the patient in sensitive areas, the requisite connection to the patient-provider relationship may be present and the applicable standard of care may be implicated. So, recognizing that not all allegations of sexual assault against health care providers are alike, we conclude that claims premised on sexual assault by a physician during an authorized medical examination can fall within the MMA if the alleged misconduct stems from an inseparable part of the health care being rendered.”
The next question the court tackled was whether applying their broader ruling to the facts of THIS case whether a bona fide physical examination was taking place during the alleged sexual assault.
“Indeed, the Does alleged that Child “suffered from a sexual assault” while Dr. Cavins was conducting “a routine physical examination.” And the designated evidence reveals that Child was seeing Dr. Cavins on the day of the incident for a physical examination that included a hernia test, which involved Dr. Cavins touching Child’s genitals, as well as a discharge test, during which Dr. Cavins ran his fingers down the shaft of Child’s penis.
Though Child did not know the purpose of these tests, he was not upset by the administration of the hernia test because Dr. Cavins had performed it before. And uncontested expert evidence in the record confirms that a hernia test involves touching the testicles and a discharge test involves touching the penis. It was shortly after the hernia test that Dr. Cavins sexually assaulted Child by stroking his penis and putting a condom on it. Thus, the sexual assault occurred during an authorized physical examination that included tests requiring Dr. Cavins to touch Child’s genitalia. And so, on this record, Dr. Cavins’s misconduct was based on his “behavior or practices” while acting in his “professional capacity as a provider of medical services.” Doe, 194 N.E.3d at 1200….
That said, we acknowledge the Defendants designated an affidavit from a physician who provided his “professional opinion that the act of putting a condom on a pediatric patient, such as was described in this case, is not an act of health care and does not constitute the practice of medicine.” He reached the same opinion for “stroking a patient’s penis.” However, an act of misconduct need not itself be an “act of health care” to constitute malpractice, so long as it stems from an inseparable part of the health care being rendered during an authorized medical examination. Accordingly, the Defendants’ expert’s affidavit does not establish, as a matter of law, that there was no causal connection between the misconduct and the patient-provider relationship.
To summarize, the substance of the Does’ claims and the designated evidence establish that this is not a case where the sexual assault was “demonstrably unrelated to the promotion of the plaintiff’s health or an exercise of the provider’s professional expertise, skill, or judgment.” Gordon, 952 N.E.2d at 186. Rather, this is a case where a physician sexually assaulted a patient during an authorized medical examination that required the physician to touch the patient in sensitive areas. And, on these narrow facts, that sexual misconduct stemmed from an inseparable part of the health care being rendered. We therefore hold that the Defendants are not entitled to judgment as a matter of law.”
The case is not over. The plaintiffs survived a motion for summary judgment. Still, the Indiana Supreme Court ruled that if sexual misconduct stems from an inseparable part of the health care being rendered, an excess judgment/settlement can be eligible for compensation by the state’s Patient Compensation Fund under the Medical Malpractice Act.
What happened to Dr. Cavins?
In a parallel criminal case, it was alleged that between July of 2018 and February of 2019, he performed similar examinations on five boys (between the ages of 12 and 16). Per the appellate ruling:
“During the examinations, Cavins stroked the penises of all five boys and introduced condoms into their discussions, placing or attempting to place them on four of the boys’ penises. The State eventually charged Cavins with two counts of Level 4 felony child molesting, one count of Level 5 felony sexual misconduct with a minor, and two counts of Level 6 felony child seduction. A jury convicted Cavins as charged, and the trial court sentenced him to an aggregate term of twenty-three years of incarceration with four years suspended to probation….
Beginning in 2008, Cavins was a pediatrician practicing medicine at Witham Health Services in Lebanon, and the practice group to which Cavins belonged used the American Academy of Pediatrics (“AAP”) recommended practice to guide the physicians through the various health stages of children. Part of the AAP recommendation practice was to discuss various topics with adolescents twelve and older who were near to or entering puberty, which included drugs and alcohol, puberty, abuse, sexually-transmitted diseases, safe sex, and condoms. While it was acceptable by AAP standards to discuss condoms and even demonstrate the proper use of a condom on an object, such as a banana, there was no medical reason to ever put a condom on a patient during a medical examination nor to ever stroke a patient’s penis in order to induce an erection….
Cavins’s jury trial began on February 10, 2020, during which all five boys testified against him regarding his acts of stroking and placing or attempting to place condoms on their penises. Cavins testified on his own behalf regarding his medical examinations of the five boys and admitted that he had introduced condoms into his sexual-activity discussions. Cavins, however, denied ever putting a condom on any of the boys or stroking their penises and admitted that there would be no medical reason to do either act. The jury found Cavins guilty as charged.”
Cavins admitted there would be no medical justification for performing such acts – and he denied performing the acts. The jury found Cavins guilty as charged.
At the sentencing hearing on June 4, 2020, the trial court gave “considerable weight” to Cavins’s violation of his position of trust as the boys’ physician as an aggravating circumstance and found Cavins’s lack of criminal history to have minimal mitigating weight.
We’ve written about the benefit of having chaperones in the exam room to prevent being accused of sexual molestation. Well, you can still be accused. But a chaperone can provide an effective defense.
What do you think?
