Ask the Expert

Supervisory Negligence Litigation in Context

M. Kent Anderson, JD, LLM
Harold J. Bursztajn, M.D.

M. Kent Anderson is Assistant U.S. Attorney for the Eastern District of Tennessee. Dr. Harold J. Bursztajn, Associate Clinical Professor and Co-Director, Program in Psychiatry and the Law, Harvard Medical School at the Massachusetts Mental Health Center, practices both as a clinician and as a forensic psychiatrist consulting locally and nationally to attorneys and institutions.

We hear more and more lately about employer liability for sexual misconduct or harassment. Is this a growing area of litigation nationwide?

Yes it is. As sexual misconduct and harassment on the job become pressing public concerns, remedies are being sought on a theory of vicarious liability, as with any other form of employee negligence. Here in Massachusetts, for example, a police department was found liable in August for responding inadequately to an officer's complaint of sexual harassment by her superior officer, thereby failing to protect the complaining officer from retaliation (Carney v. Town of Falmouth Police Department, et al., Docket No. 91-NEM-0149).

I understand that the two of you worked on a recent case alleging supervisory responsibility for sexual misconduct by a physician in a U.S. government hospital. Does this case provide any useful lessons for attorneys who are trying such cases?

The case you refer to is Scoggins v. U.S. (U.S. District Court for the Western District of Oklahoma, Docket No. CIV-93-1267-W, decided August 1, 1994, no notice of appeal filed to date, appealable until September 30, 1994 per F.R.A.P. Rule 4(a)(1)), where claims of both supervisory negligence and premises liability were made against the physician's employer, the U.S. government. At the request of defense attorney Kent Anderson, Dr. Bursztajn performed a Rule 35 (i.e., court-ordered) examination of the plaintiff as to the emotional injuries she claimed.

The judge ruled for the defendant on the following grounds: First, the government did not have supervisory responsibility for the physician's behavior toward the plaintiff because there was no physician/patient relationship between the plaintiff and this physician at the hospital in question, since the physician had treated the patient at a physically adjoining state-operated hospital. Second, the government did not breach its duty to provide reasonable protection for the plaintiff on its premises because the danger posed by the physician was not foreseeable to those in a position to prevent it.

What areas of expertise does an expert witness draw upon when testifying as to standards for supervisory negligence?

Besides having expertise in the relevant field of employee supervision (in this instance, clinical supervision in the health professions), it is helpful for the expert to review all of the material available through discovery. Often this material is presented in the form of depositions. In addition, interviews with the key parties can be helpful. An often overlooked source of data is to have the expert visit the site where the alleged events took place. An examination of the structure of the premises may reveal unexpected data useful either to the plaintiff or the defense.

What kinds of data are specifically relevant to the question of supervisory or employer liability?

A familiarity with organizational psychodynamics is essential in order to determine -- and explain why -- a particular supervisory response did or did not meet the industry or professional standard. Although written job descriptions and supervisory guidelines in writing are helpful, they do not take the place of careful data-gathering as to what, in practice, the role of a supervisor in a particular setting is -- or should be, given the demand characteristics of a particular job.

For example, at the Scoggins trial Dr. Bursztajn talked about the psychodyamics of the hospital emergency room, where a premium is placed on encouraging clinicians to act autonomously, so that in an emergency they can use their best judgment. In Scoggins the supervisor did not remember having been told about an allegation of sexual impropriety involving someone who was a patient not at the hospital where the supervisor had responsibility over the physician, but at an adjoining hospital. Clearly, to exert the degree of supervisory responsibility claimed by the plaintiff as her due would be intrusive and counter to the purposes of supervision in that setting. In other settings or under other circumstances, of course, the supervisor's lack of knowledge not only would not absolve the supervisor of responsibility, but might itself be evidence of negligence.

Does the extent of damages suffered by the plaintiff play any role in determining supervisory responsibility?

Not directly, since, in the words of the judge's ruling in Scoggins, "injury alone does not prove a breach of duty." However, the presence or absence of extensive damages often plays a major role in determining whether or not the case goes to trial and, if it does, in determining the award of damages. Moreover, when there is a question of supervisory responsibility, the defense is more likely to be given the benefit of the doubt when the damages are found to be limited.

What is the legal basis for claims of supervisory negligence against the U.S. government?

The Federal Tort Claims Act waives sovereign immunity for the U.S. government in cases of personal injury

...caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (Scoggins, supra, at 5-6)

Thus, in Andrews v. U.S., 732 F.2d 366 (4th Cir., 1984), a federal appeals court affirmed the judgment of the U.S. District Court in South Carolina that the Government was liable for damages caused by a U.S. Navy medical clinic's negligent supervision of a physician's assistant who seduced a naval officer's wife in the guise of treatment. The record showed that the supervising physician was informed of the physician's assistant's improper conduct prior to the acts that caused the damages suffered by the patient and her husband, but did not take the necessary steps to prevent those damaging acts. This negligence occurred while the supervisor was acting within the scope of his Government employment.

Similar reasoning has been used to decide claims of supervisory negligence brought against state and local governments or private businesses. In the often cited case of Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989), which involved sexual misconduct by a therapist employed in a county mental-health clinic, the Supreme Court of Utah reversed a jury's finding of supervisory negligence because the sexual misconduct did not fall within the time, place, nature, and purpose of the therapist's employment in the clinic. The court's ruling stated, however, that the county could be held liable if substantial evidence existed to support a theory of negligent supervision.

What further developments in this area do you see in the coming years?

Public concern with sexual misconduct by professionals, as well as sexual harassment in the workplace, will undoubtedly continue to grow in the foreseeable future. Even attorneys and law firms may not be immune, as the propriety of attorneys having sexual relationships with clients is increasingly being called into question. Some commentators would prohibit such relationships only in sensitive areas such as divorce cases, where heightened emotional vulnerability leaves the client open to undue influence and exploitation. Others think it unethical to bring sex into any lawyer-client relationship -- indeed, any fiduciary relationship. To the extent that these strictures are accepted by the legal profession and written into its ethical code, law firms stand to be held liable not only for sexual harassment of one employee by another, but for sexual exploitation of clients by employees of the firm. Indeed, if the experience of physicians and psychotherapists is any guide, attorneys may face claims of vicarious liability for the actions of other attorneys with whom they practice in partnership or even simply share an office. In this atmosphere, forensic psychiatric expertise can help distinguish real from spurious claims based on the doctrine of respondeat superior by examining closely the particular contexts in which supervisory responsibility is exercised.

Copyright on this material is retained by Harold J. Bursztajn, M.D. Permission is granted by Dr. Bursztajn to reprint this article in its entirety, including this copyright notice and the by-line, for educational purposes only. Expressed written consent from Dr. Bursztajn must be obtained before reproduction of this article for any other purpose.