professional failure to recognize and manage sexual attraction and control sexual inhibitions in the examination room and it's a case that involves you know this this type of examination involves subtlety and substantial consent already the consent to go to an examination room to d wrote on dress and to consent to touching in the private areas involves substantial consent and as we address in our in our brief this is not the same type of case where someone goes i'm for you know i because there was not informed consent that individual could be deemed to have committed a battery in this situation the physician in question i don't think there's any suggestion unless you can tell me to the contrary that that that that he was performing a medical procedure that was built that i mean that was was that not purely an assault and battery yeah thank you the the question i think if i understand that you're addressing comes after this st inquiry as to whether or not the case as a threshold question arises out of assault and battery or out of  analogizing this case to the bennett the to its case we think it's the same and that was the case that involved sexual interaction providing alcohol and of the types of things that would be that could constitute an intentional sexual cripe tort but this court said no those actually arise out of negligence because the consent and i think the subtlety is very important here because again if i went into the examination room and i said i've got a problem up here and you said let me feel your breasts that would just be blatant but she consented to be on the examination table to get up on the table to one dress to be touched on her breast in her genitals and in that area and i'm in the air sounds to me like you would you could convert any battery case into a negligence case by saying that the batter was negligent in not controlling his emotions i have i have i have anger problems and i haven't i've been negligent not dealing with them so i if this person right this is not a battery claim this is this is a negligence thing i've never heard of that theory before i can understand that negligence can be negligent conduct by a psychotherapist for not taking care to prevent manipulating the emotions of the patient so that the patient consents to what would otherwise be forces right so i think there's two pieces to that what you're talking about the transference phenomenon and i understand that was an important piece of this course a decision in the benevides case going back to this you know this anger question i mean couldn't couldn't you say the same thing every doctor should use discretion and not i think as the as the us but it never briefed doesn't take professional discretion not to grope a patient it doesn't take professional discretion not to be angry at a patient cry but here it's different because it's there's a very close connection like physically very close like and i sat through the criminal trial in this in the underlying case and this was very important there were like videos talking about how close are the fingers and did they move an inch too far this way or an inch too far this way and did it cross the line and that's just completely different than saying well i didn't manage my emotions very well or or you know i  something that's not really connected but this doctor was tasked with touching this woman's genitals that was his professional job and the idea is he did it in a way that crossed the line and as with the psycho the psycho and that analytical kind of context of the you know when you're dealing with a psychologist or mental health provider and that transference phenomenon the the onus is on the provider to manage that in this case too because that transference works both ways there's transference and counter transference there's this idea that some patients may say oh i look up to you as the therapist and see you as my father  mother but it goes the other way too in the literature documents that that psychologists can transform their own feelings to to their patient and that's what happened in the benevides case and similarly in this  was consensual there wasn't a battery like the poor committed by the therapist in that case was negligence in not preventing this transference from which ultimately led to the patient's consent so there there was a consensual there was a consensual contact in that case here there's clearly a non conscript untacked there was a bat there was a battery here and you're saying because the that's that's a new idea what this court said in the benevides cases and i here's why i think it's analogous it says merely in reveals and i'm using the word heard here but merely reveals h confusion how about how to respond to the unsolicited sexual advances that was the language this court used in the benevides case it refer to those as unsolicited sexual advances and that person's confusion about how to respond and in this case i think she was in the same position otherwise she would have run out of the room or as i said in the brief maybe smacked the doctor but there was confusion because it was like oh yeah you are supposed to be touching me i don't think i've ever had that happen quite like that before and i'm a bit confused about it are there any cases that have extended benevides sort of rationale to the medical such muscle like this her attorney asking us to take some right i am asking you to take some new ground in so far as i haven't found that particular issue your honor and i think i again i think that there was ambiguity there was confusion in how to respond to something that was unsolicited and benevides and i think that's what happened here i think there was a transference phenomenon in that case and i think that was important to this court's decision and i think it's important here if i might move on from this question about appropriate policies and procedures to reduce the risk of malpractise and the risk of lawsuits arising out of any health or health related function and it's important for two reasons because it's distinguishing between medical malpractise and lawsuits arising out of any health related function and two to thirty three age clearly sees policies and procedures such as supervision and training and then the vetting is another case that says the same thing and they sensibly said it's an extra put in extra cobley woven in the performance of medical functions this was a duty to report sexual abuse but had nothing to do with the i mean at in that case the plaintiff it allege that defendants in the physician employer were negligent by failing to supervise and report a situation involving abuse to do something about reported abuse and and as it relates to community health center here that's the same thing that was reports of this and a failure from them to do something about it and if it's the betting of you know bringing somebody who has a history of sexual  misbehavior in the medical context if betting that and then also supervising that and your other health care providers in that context ensure that doesn't happen isn't an extract the strictly linked to the actual provision of the health care i don't i don't know what it is and we know that it's related because that's what happened we know that it's a related function because in an examination room with a nother medical provider and we alleged you know negligence against nurse martin to so which is kind of the rd prong of this but but in this medical examination room with a doctor and then her nurse leaving and not paying attention if if if the supervision of that isn't an extra strict oblique links to what happened in that room and the fact that it didn't get caught or addressed in that moment i don't know what would be because it is it is that negligence here that that negligence arises out of the assault and battery and therefore why should our so so the share case you're right about that when i'm arguing under two hundred and thirty three is that if if the court determines no this does not arise out of negligence it arises out of salt and battery and therefore it is barred at least under the intentional tort exception to thirty three dollars subsection e cards back some of that and the sheer analysis doesn't include that that's part two and that's what this court did in the franklin case but the whole st part of the franklin case is this court says yeah this arises out of battery instead of negligence but that inquiry doesn't stop there once we've determined that a case arise battery otherwise the exception under two hundred and thirty three dollars doesn't even make sense because it talks about cases arising out of assault and battery and so like i thought it read i thought that exception that exception to the perhaps exception to the exemption was designed to get at that informed consent i mean in which what you had was the provision of medical care but you didn't have informed d consent nd nd sir cuoco be more to sue go to twenty two s three d ninety nine you know they assert that two hundred and thirty three a a product provides immunity only for medical malpractise claims the court says no it doesn't it doesn't say that that's one type of it but that's not the language that's used there specifically and we would say that not nurse martinez her negligence is independent negligence that that would fall under the two hundred and thirty three  though it's all in battery is also involved but we think negligence in that context means you know assault and battery arising out of medical malpractise medical negligence overarching kind of situation family practitioner or if for example she wasn't even a patient and just happened to be there but she was charged for this she when she scheduled the appointment she was charged for it it got processed through insurance she went into examination room there was a nurse present the doctor was there it was wearing gloves and in fact did do a number of things connected to the examination their medical records that would support that and that would require him to examine and touch her breasts and examine and touch her genitals allegedly the result or battery or claims that arise out of the software battery and because the public self help that the health service accepts them to thirty three is did not expand the united states waiver savored sovereign immunity to apply to claims of sexual thirty three in the franklin case i think that's really the key case to look at and franklin explained the following explained at the time these immunity statutes had been acted and provided immunity for public health service employees and other so what that meant was in those kinds of cases public health service doctors could still be held personally liable for those kinds of torts so as franken explains what congress did was try to fix that problem and it did so by expanding the waiver of the united states are immunity to those particular kinds of claims which is to say medical batteries or medical services are provided without conse medical surgical and dental kinds of functions not you know the kind of claims that plaintiffs are bringing here with it it was wrecked the training or in the seeing of somebody is in the room with a doctor and the term related i think you know has to be understood in the context that it's provided in the plain language of the statutes related in the sense that if it's a medical malpractise claim and i think that's an additional point we said as you can affirm the gist missal this case on the ground that as plaintiffs actually admitted in their brief to thirty three dollars e only waves the united states sovereign immunity for medical malpractise claims and they don't have any medical malpractise claims here or any others i'm sorry so this doesn't happen very often that that's all that proves you didn't i didn't the fact that they don't cite a case doesn't foreclose their claim and they claim certainly seems to be based on the statutory language well again i think you have it i'm sorry i think our point our point about no case is that they also have no theory i write a proper malpractise claim the plaintiff made the concession that you're describing but the language of the statute is that the assault exemption from liability  eight shall not apply to assault or battery arising out of ice in that means hard caused by negligence in the performance of medical surgical dental related functions and boy that and i don't see why that doesn't apply to the nurses failure to stay in the room explain that i think that language is so again that i'm sorry if i repeating myself but our  this i'm not sure it would be medical malpractise but regardless of whether it's it's some definition of medical practice why does it not fit the language of the statute which is should be where we start so again your honor i think we've laid out what our view of the language of sachin is you focus on the term medical surgical dental functions and those are those all that medical malpractise and and thirty three is very similar to the language in two thousand three hundred and thirty eight that's the basic waiver of sovereign immunity for four suits against public health service employees and against deemed community health service employees and that language was put into the statute because because this immunity was provided because congress found that public health service employees didn't make enough money to be able to afford to purchase malpractise insurance for themselves and so there is a big problem there they want to congress want to encourage people to practice in the profession and work for the public health service so it through this provision authorized a waiver of sovereign immunity for the united states and provision of immunity for the doctors for and for medical malpractise action so politics let me ask you a question just on sure that anderson and what you're saying as far as nurse marking is not staying in the which may well have stopped the use but she didn't stand there and you're saying that her leaving the room was not negligence and performance of a medical function because saying in  way to look at the statute we agree with that we also think as as explained sort of another way to say about the same thing is that the statute only waives sovereign immunity from for medical malpractise and that what she did was  have done there's no sense in which there's no proof that would be considered medical malpractise underwire of wyoming law or any other state's law so we really have two points that i think are very similar on that case was based on the transference phenomena and importantly that that phenomenon occurs the court said only in psychotherapy and in the plaintiff this morning counsel has i think an incorrect misunderstanding of what transference is person and that's what the psychiatry is supposed to handle plainness theory is completely different but of says that well that should also apply here where there's a a trust relationship and that's not what  gynaecologists in a said that would not count that would not authorize you know would constitute medical malpractise and it's and also made the point that well if you know there are lots of other professions that  have trust relationships with clients that for example if a lawyer had to commit sexual assault on a client that would be obviously a breach of professional ethics but it wouldn't be it wouldn't be legal the plaintiff has with with respect to the other the other claims for negligent hiring training and supervision we think all arise out of the assault then sure makes clear and franklin agrees that a plaintiff can status and doesn't have doesn't wyoming law imposes a duty on landlords to take reasonable steps to protect tenants where there is based on past experience some possibility of cr that's correct your honor i think the most important thing about that is that that's why i'm in statute one dash thirty nine dash one of six and that statute only only in imposes duties on hospitals with respect of their own employees only for medical malpractise claims well the premises liability claims obviously not a medical malpractise claim and there i think that step that piece has to be read in light of the wyoming statute which creates this duty to begin with and that statute applies brief which they claim imposes a duty on hospitals to protect patients from just anybody but the problem that theory doesn't work either for a couple of reasons st of  that means that it's not limited to medical malpractise nurse munting as thank you there's martina's yep thank you thank you counsel case the submitted counts are excused