A maternity patient at Boston Medical Center who was sexually assaulted by a non-clinical employee that was alone with her in violation of institutional policy could bring a negligent supervision action against the hospital, the Appeals Court has ruled.

A Superior Court judge had dismissed the claim on summary judgment, finding that “no reasonable view of the evidence” would enable a jury to conclude that the assault was foreseeable, given that the employee, interpreter Thomas Consoli, had a clean Criminal Offender Record Information report when he was hired and had been made aware of the hospital’s policies.

But the Appeals Court reversed.

“The question should not have been whether Consoli’s specific assault was foreseeable based on his prior conduct, but rather whether an assault on an unattended, minimally clothed patient was foreseeable when her room door was unlocked, open, and unmonitored, and unauthorized hospital employees had access to it,” wrote Judge Frederick L. Brown, sitting as a justice on recall. “Accordingly, we reverse the order allowing the [hospital’s] motion for summary judgment and remand for further proceedings.”

The 6-page decision is Doe, et al. v. Boston Medical Center Corporation, Lawyers Weekly No. 11-133-15.

Important recognition

Plaintiff’s counsel Matthew W. Perkins of LeComte, Emanuelson & Doyle in Quincy said the decision was important because it recognizes that a hospital has an obligation to protect patients from foreseeable harm in all circumstances and must take positive steps to ensure patient safety.

“A health care provider cannot leave it to its employees to self-police their behavior,” said Perkins, referring to the plaintiff’s allegations that while the hospital had a policy against interpreters being alone with patients, the hospital provided no specific monitoring or supervision to make sure the policy was being followed.

Perkins also said this case shows the importance of plaintiffs’ attorneys focusing on the facts and theory that support their claim rather than litigating the case premised on the other side’s theory.

“In this case, the law governing a hospital’s liability for sexual assaults on patients initially was not in [our] favor,” he said. “We developed a theory that focused on the foreseeable harm to the plaintiff rather than the foreseeability of the perpetrator’s actions by examining all the circumstances leading up to the assault.”

Mark F. Itzkowitz, a Boston trial lawyer who frequently represents plaintiffs in negligent security cases, called the decision a message to trial judges to think more expansively.

“The problem with the ruling at the trial court level in this case was that the judge limited her perception of the problem to a very narrow type of liability case without being willing to consider broader implications,” he said. “The Appeals Court decision basically says, ‘No, if you’re responsible for putting someone in a vulnerable situation, exposing them to harm from a number of sources, you have to fix the situation and prevent the harm.’”

William D. Kickham of Westwood, who also handles negligent security cases, said the case highlights the need for hospitals to reassess their risk management procedures and incorporate appropriate oversight controls to ensure employees such as Consoli are monitored by security personnel.

“It’s completely irresponsible for an employer such as a hospital simply to tell an employee not to have any physical contact with a patient and not to be alone in a room with a patient and then expect 100 percent of those employees to abide by the policy,” he said. “Had [the Superior Court decision] been upheld, it would have created enormous, expanded risk for hospital patients, nursing home patients and similar persons at risk. It would have been extremely troubling.”

The hospital’s attorney, Joseph A. King of Murphy & Riley in Boston, did not comment beyond noting that his client is “considering its options” regarding an appeal. However Martin C. Foster, a Cambridge attorney who defends hospitals in negligence cases, said the court “nicely and efficiently” identified a means of concluding that the assault in this case was a foreseeable event.

At the same time, said the Foster & Eldridge partner, people shouldn’t interpret the ruling as calling into question hospital security practices in general.

For example, in this case, the behavior of the perpetrator — who was later convicted of assaulting the plaintiff — was uncovered because a different patient’s physician reported that an interpreter had assaulted his patient earlier that day in another part of the hospital. That physician reported the earlier assault to hospital leadership, which sparked an investigation and led to the discovery of the assault on the plaintiff.

“That’s a good culture,” said Foster. “In some other places you might see where information about assaults isn’t transmitted to the appropriate individuals in the institution and no action is taken. … But here’s a hospital where the culture is such that if something happens, we’ll report it and act on it.”

Still, said Foster, the court was ultimately sending a message that there is a need for safeguards as to when and how non-clinical employees can have access to patients.

“The question then becomes what types of safeguards are reasonable and feasible,” he said. “I think that’s going to be a question of fact that a jury will have to determine and I think they’re going to need to do it with the assistance of experts.”

Sexual assault

Boston Medical Center hired Consoli as an interpreter in 2004 after obtaining a CORI report that indicated no prior criminal convictions.

After being hired, the hospital apparently put Consoli through a staff orientation and informed him of its policies, including a policy that as an interpreter, he was never to touch or be alone with any patient.

The policy was allegedly self-regulated. In other words, the only person to insure that Consoli was never alone with a patient would be himself.

On March 31, 2008, the plaintiff, a Guatemalan immigrant who understood minimal English and lacked formal education, was admitted to the hospital in connection with labor and the delivery of her first child.

After the plaintiff was admitted, she was directed to a room, where she changed into a hospital gown.

Shortly after 3 p.m., Consoli entered the plaintiff’s room to translate for her in a conversation with her doctor and nurse.

After the conversation, Consoli and the medical team left the room, leaving the door open. Consoli apparently told the nurse he was headed for another assignment in triage, but when the nurse left, he remained outside the room.

Shortly afterward, Consoli re-entered the plaintiff’s room and asked her where she felt pain. He then apparently told her he was examining her for medical purposes, lifted her gown, touched her abdomen and her vagina and left the room.

The nurse returned to find Consoli outside the plaintiff’s room and told him she’d page interpreter services when the plaintiff’s anesthesiologist arrived, which was apparently the next time she’d need him. Consoli then left the area; it was approximately 3:15 p.m. at that time.

Several minutes later, the hospital’s director of patient advocacy learned from a different patient’s primary care doctor that his patient had been sexually assaulted around 9:15 a.m. that morning by an interpreter at a different location in the hospital.

The hospital’s department of public safety immediately began an investigation and learned that Consoli had been that patient’s interpreter as well.

Consoli was placed on leave pending the outcome of the investigation. The hospital also deactivated his electronic access to the hospital. He was ultimately terminated and later convicted on charges of assault and battery with respect to one patient and indecent assault and battery with respect to the other.

The plaintiff and her husband sued the hospital in Superior Court alleging negligent supervision and loss of consortium. But Judge Heidi E. Brieger granted the hospital’s motion for summary judgment, finding that based on evidence presented as to Consoli’s prior conduct no reasonable jury could conclude that the assault was foreseeable to the hospital.

The plaintiffs appealed.

Misplaced focus

The Appeals Court noted that in dismissing the case Brieger focused primarily on what was foreseeable to the hospital based on what it reasonably knew about Consoli’s prior conduct.

“This was in error,” said Brown, stating that the judge should have broadened her focus to the foreseeability of an assault under the general circumstances surrounding the plaintiff.

Specifically, Brown said, the trial court’s analysis should have expanded its focus to the foreseeability of an assault on an unattended, mostly unclad patient in an unlocked, open, unmonitored room that unauthorized hospital employees could access.

“The hospital’s policy regarding interpreters being alone with patients makes it clear that such harm was foreseeable,” said Brown. “Thus, the question whether the hospital met its duty of reasonable care still remains a genuine issue of material fact for the jury to decide.”

The Appeals Court therefore ordered that summary judgment for the hospital be reversed.

THE ISSUE Could a hospital maternity patient who was sexually assaulted by a non-clinical employee who was alone with her in violation of institutional policy bring a negligence action against the hospital?

DECISION Yes (Supreme Judicial Court)

LAWYERS Matthew W. Perkins of LeComte, Emanuelson & Doyle in Quincy(plaintiff); Joseph A. King of Murphy & Riley in Boston (defendant)