by Stanley J Spero, Esq., S J Spero & Associates, A law firm specializing in the representation of victims of professional exploitation and sexual abuse since 1983. on June 15, 2010
Preventing Public Access to the Courts
Many states have enacted anti-SLAPP statutes to provide a quick remedy for those citizens targeted by frivolous lawsuits based on their government petitioning activities. The “SLAPP” in anti-slapp stands for “strategic litigation against public participation.”
Anti-SLAPP statutes have been enacted to frustrate lawsuits (“SLAPP suits”) that are calculated to chill citizens’ lawful exercise of their right to petition the government for redress of grievances. SLAPP suits are, by definition, meritless suits brought not to win them, but to use the litigation to deter, intimidate or punish citizens who either will or have reported violations of law, written to government officials or testified] before governmental bodies.” The law firm of SJ Spero & Associates, P.C. once represented a patient who had been sexually abused by her personal physician. The patient sued for damages which included substantial emotional distress.
A monetary settlement was subsequently reached with the offending doctor. The settlement also required both parties to maintain confidentiality of their prior.
Long prior to the settlement itself, the medical licensing board opened disciplinary proceedings into the offending physician’s conduct. These proceedings, of which the doctor was well aware, began even before the underlying original medical malpractice litigation. The licensing board continued to investigate the doctor’s conduct, thereby placing his medical license in jeopardy.
During the ongoing disciplinary proceedings but subsequent to the patient’s settlement with the abuser, the victim was served with a subpoena compelling her to testify before the board. As her participation was involuntary, the victim clearly did not breach the settlement agreement with the doctor.
The doctor, however, sued the victim for breach of the earlier settlement agreement. Happily, the lawsuit was dismissed in 1999 pursuant to the Massachusetts Anti-SLAPP statute.
In dismissing the doctor’s litigation against the former patient, the Court determined that the purpose of the post-malpractice litigation was not to win it, but rather to intimidate the former patient into refusing to appear and testify before the disciplinary proceeding. In short, given the clear import of the settlement documentation, the uncontested fact that the former patient appeared before the licensing board at its request, and the board’s duty to collect information concerning settlement of medical malpractice actions, the court found that the offending physician failed to satisfy his burden of demonstrating that the patient’s exercise of her right to petition was “devoid of any reasonable factual support or arguable basis in law.”
The idea behind such statutes is to protect the right of citizens to petition their government, including the use of the courts, without fear of retribution by relatively powerful opponents whose interest may be jeopardized, financially or otherwise, by the petitioning activities. In appropriate circumstances, anti-SLAPP statutes can provide judicial protection to victims of abuse who are compelled to testify by governmental bodies.
In this case, our firm drafted settlement documents which provided proper protection to the former patient. The Anti-SLAPP remedy was available to stop the abusive lawsuit, and our firm was able to obtain court ordered attorneys fees for the victim.
by Stanley J Spero, Esq., S J Spero & Associates, A law firm specializing in the representation of victims of professional exploitation and sexual abuse since 1983. on May 7, 2010
When sexual abuse in psychotherapy occurs within an institutional setting…
When a patient is abused in a clinic, ward, hospital or group practice, the malpractice attorney faces unique issues. The individual perpetrator, the person who actually engages in sexual misconduct with a patient or client, is always potentially liable to his or her victim—at least in theory. Unfortunately, most insurance policies exclude or drastically limit coverage for negligent acts involving sexual behavior. However, there are cases that require insurance coverage for those boundary violations that are not sexual in nature.
Some perpetrators have significant assets in the form of real estate, savings accounts, stocks and bonds, etc. If a mental health care provider has an interest in such assets and the property is not protected from seizure by legal exemption, litigation against such a defendant may be worthwhile to undertake.
Regrettably, the victim of professional misconduct may have significant damages, but if the perpetrator is without valuable assets or sufficient insurance coverage, the losses may remain uncompensated. Of course, this circumstance does not prevent the victim from reporting the offender to licensing authorities or professional organizations.
When a patient or client is abused within an organizational setting, the institution itself or others within it may also be liable to the patient. If a hospital, clinic, partnership or group practice has breached one or more duties to a patient, the entity, which may have different or additional insurance coverage, may be held liable for the victim’s damages.
When can an institution be held liable for offensive conduct by one or more of its employees?
If a mental health care provider is hired by a corporation but the corporation fails to do “due diligence” in verifying the employee’s background, the organization may be sued if its dereliction is causally related to harm suffered by the victim. Or, if a clinician has a history of inappropriate contact with patients and the organization fails to properly supervise, discipline or terminate him or her, the employer may be held liable provided that the omission is causally related to the patient’s harm.
Other individuals within the institution may be liable besides the perpetrator. If a supervisor negligently hires, retains or fails to supervise the abuser, the supervisor may in some circumstances become liable to the patient. Supervisory negligence can implicate different and more extensive kinds of insurance coverage, providing a “deeper pocket” from which victims can receive compensation.
These theories of recovery are not without difficulty. Negligent hiring, retention and supervision are not always easy to prove. The organization may have “charitable immunity,” a doctrine which, depending on the jurisdiction, limits or prevents the amount of recovery. If the organization is government run, there may be an exemption from liability based on sovereign immunity or statutory limits on recovery.
At S.J. Spero & Associates, we are familiar with institutional liability issues. We explore all avenues of potential recovery for our clients.