the file a case on or call the docket for today tuesday november sixteenth two thousand and ten is agenda number fifteen case number one zero nine seven three eight kristen kaufman versus roger schroeder m d n a jersey community this is an action which calls upon this court to interpret a statute that has heretofore not been interpreted by this court and for that reason it's a case of case and be on a lot case as well as relying on appellate court decisions which interpreted similar language appearing in another statute in this case  trial court and the appellate court ruled that there was a one year statute of limitations pursuing to two the toward immunities act that barred the claims of the plaintiffs against the defendant community hospital we respectfully request that this court reverse the decision of the trial court and the  court because the trial court and the appellate court mistakenly fail to consider that the plaintiff's injuries in this case in fact did  arise out of patient care and that being the case it is subsection v of section one hundred one of the toward immunities act that applies and not subsection a subsection be prescribed a two year statute of limitations for actions against a public entity for damages for injury or death whether by tort breach  your honor i think that you have to look at the context of the treatment and not separate out each element of what the doctor did under the os the c s of legitimate patient  care the patient went to her o b g y n who she had treated with for a couple of years prior to the incident in question she was pregnant she had a urinary tract infection it was proper for her to go to her o b g y n it was proper for the o b g y n to attempt to treat that medical condition he legitimately hospitalized her and during the course of the hospitalization he undertook to perform an examination clearly up to this point all of that constitutes patient care he sedated her we'll edge that he's sedated her for an improper purpose we've not developed to the discovery in the case but potentially there was another purpose for sedating her we don't know at this point but as a part of the plan that he had to seduce her or to molest her he took advantage of her under this occasion and committed the deviant sex act does it matter whether this case  ordinary negligence or medical malpractise in order to rise i think not your honor if you look at this court's prior decisions in our lock in brecker one of those where the allegations were concerning fraud or a hospital failing to notify the patient that the patient received hepatitis tainted blood for a period of eleven years this court said it matters not what you call the action how you characterize the action what matters is that it arose throughout the course of the patient care and the same reasoning and of nutritional supplements with the wrong supplement and in that case this court said again it matters not whether we're viewing this case as medical malpractise or whether we're viewing it as ordinary vendor negligence what we are to concern ourselves with is whether that misconduct and that injury arose out of patient care of counsel how do you  intentional and the other part is sexual certainly this court and the appellate courts have previously ruled that intentional conduct can be conduct arising out of patient care and i in one of the cases performing unnecessary eye surgery that's an intentional act yet it still comes under the statute you know to one to arising out of patient care but now medically necessary to perform the history of the choice that medically necessary or not there was a there's the rectory his hysterectomy reform and therefore whether or not it's medically necessary or not it's different that when we my question isn't as detailed as that would what the opposing counsel is basically saying is that if this there would be found by this court to be patient here because it a rolls out of at the time of patient care wouldn't everything come out of that no matter what a doctor did not ask the doctor has someone admitted to the hospital they're there at the emergency rome and florence and there you know they're filling out their paperwork and the doc the doctor who admitted the person comes in and does the same touching that they did here in that time that would have to be because the patient has been admitted to the hospital for presumably some type of p well your honor keeps referring to it as patient care i don't characterize it that way i characterize it as an act of arising out of patient care i don't think there is the danger of opening a floodgate of litigation for every doctor that improperly touches a patient and the example comes to mind it woman goes to her physician's office for whatever purpose he locks the door and rapes her i don't contend that that is a sexual assault arising out of patient care in this case however what we have is a series of events that were legitimate patient care which placed this plaintiff's in a very vulnerable position and she had no reason to suspect or be on guard or ward against any advances because everything the doctor was doing up to a point was patient care  let's say in the example that your honor just gave me that may not be far enough but for example as i think was the case in one of the cases cited by the defendant the florida case the patient goes to  a osteopath for complaints of headache and vertigo and he tells her put on a gown and lay face down on the table she has no reason to suspect that that is not a part of proper care in the course of his examination of her back then he violently thrust his hand into her genitals and her rectal area back in my estimation would be an injury arising out  patient care there goes our problem and the reason i'm so interested in you addressed in that question which will certainly come up is that you really do we have the benefit of  opinions that are based on only the facts of the particular case and presumably we don't even take cases in which that's the reason that we took so i'm i'm just trying to i think it's an important question that if the determination of this court would be that you know an intentional act in this case an intentional sexual act by a doctor is a rising out of patient care will that it's important to me that you have a chance and that's why well i think the cases are helpful because they talk about the act being causally connected to the medical care and in the example i gave where the woman merely enters the doctor's office and he attacks her and rapes her is that cosily related to some treatment she was receiving at the time i think not also helpful  here so i mean i think it's hard to picture a and i understand that the problem that if your honor is opposing my response to that is that this court would have to look at where the intentional act was in extra completely as justice bruckner this court stated that patient care and i'm not maintaining that the sexual touching his patient here however what with this court said was the entire scope of the medical care and treatment has to be viewed in that's that's the measure of what needs to be looked at here not what the doctors motive was and is as the defendant suggests the court should look  at it but you know take it in context of the entire medical care and whether what the physician did was a natural consequence of his placing in such a vulnerable position that the actions that he did in getting her to the point where he could sexually abuse her were patient care do that in a hospital setting so i would say that yes that that was patient care and then the next question is do we have to look at the doctor's motive in doing that yes yes yes once again what what i think this court you know needs to look at is whether whatever injury is alleged to be a fraud or battery  or medical malpractise whether that arises out of patient care and in this instance we maintain that the injuries and the damages did arise out of the patient care good action in may please the court my name is judy brostrom i look we think sure the community hospital district in this case the only issue before this court is whether the act of sexually assaulting a patient by a physician in a hospital that arises out of patient care which would subject this to the two year statue of limitations as opposed to the one year statute of limitations under the tort immunity court held that the sexual assault on the patient did not constitute patient care and that the patients it would raise as a result of this sexual assault did not a rise out of patient care and therefore the case was dismissed based on the one use tax for limitations for the one provides that actions against public entities must be brought within one year that search was amended in two thousand and three in june two thousand and three the statute was amended to carve out a did not arise out of patient care that the patient claimed injuries did not arise out of patient care the court of appeals looked at this court's precedent in brocker and mccullough and his counsel say that this is a case of first impression before this court no court has has actually looked at a one a one b of a tort immunity act in looking at the cases of broker in more cola the supreme court cases this court held that the arising out of patient care language on three to twelve thirteen dash to twelve all there had to be some calls a relationship between the injury and the care and treatment of the patient the court also held that that would cover anything injuries that have their origin or were incidental to the patient's care and treatment exception to this however was that if the only connection between the patient's treatment and the injury it patient would not have been at the place where the injury occurred but for the treatment that that would not be considered an injury arising out of patient care nation and examination that is under this is serious sedation i think it's a nice way of saying she was given a drug to knock her out so that she could be sexually assaulted the examination i think counseling it net of touching her improperly to not constitute an examination the injuries that she's alleged as a result of this improper act this criminal act it's an emotional distress she was in the hospital for treatment she's pregnant she's in the hospital for treatment every year a tract infection there's no allegations at all in this complaint that her x rays were done improperly her going to her urine tests were done improperly her medications were provided improperly when we immigration is is that as a result of this unnecessary s versus bucker the only way that this court could find that these acts of sexual assault on this patient constituted an injury arising out  mouth thirteen to twelve is for actions against doctors and hospitals and nurses and in essence because the act of determining making a judgment in determining whether to put a lens in somebody's following performing medical treatment on a patient and the action was against a physician well a hospital that was why they held that but it grows out of patient care because it was the court has some questions some line drawing questions of plaintiff's counsel the question about somebody going to a doctor's office and getting their blood pressure taken and then being raped i don't know that does not arise out of patient care that is a section intentional sexual assault above for that patien being out of a doctor's office getting her blood pressure taken she was sexually assaulted and those are the same that the same is the instance in the kaufman case but for her being present in the hospital for actual medical care and treatment she was knocked out with a drug and intentionally such lists altered by her physician and that takes that particular porque injuries out of the statute and we're talking about drawing issue i guess is possible there could be a count against a physician or medical malpractise that is separate than a count against a physician for sexual assault in which case the sexual assault would not arise out of patient care if there were other allegations potentially those could arise out of patient i don't think you can have a sexual assault without intending to commit a sexual assault i think you can how about battery on a patient and that could be characterized as an injury arising out of patient care that did not result in sexual assault you can statute against a public entity for injuries arising out of patient care the answer is no because these injuries that she suffered did not arise out of patient care pay rise they rose out of criminal sexual allegation is it was an unnecessary so the sion unnecessary examination whatever that is but it comes to us i'm pleading issue so let's take the sexual contact conduct out unnecessary sedation unnecessary examination as that allege and they will be eight one hundred one be claimed i don't think you can take that contract out of this petition your honor i just want to know what the answer would be to that question because can you can you really separate all the allegations out and say because of the sexual conduct is there destroys all the rest of the allegations and we have to look at all the allegations in the complaint in those counts for three ten that's i guess that's  injuries that are alleged and like i said the examination the understory sedation i think those are a nice way of saying drowning somebody in sexually assaulting them the counts against the hospital specifically allege that the plaintiff's injuries arise out of medical treatment she received from jersey community hospital and i can point to  nine in count four for example and i think if you look in the next couple of counts there is a similar allegation not that the injuries arose from the sexual assault but from the from the entire medical care there there are a couple of points that i wanted to make here this is not but for causation dr schroeder was not a neutral force but for causation would be a situation where a woman goes to the  hospital and of a wall collapses on her here we have dr schroeder and the hospital for providing the forum for dr schroeder to to do what it is he would do to his female patien as well that the plaintiffs has alleged emotional distress at that as a result of the care she received which how can you say what his damages flow from is that the actual act is the fact that he was vulnerable and taken advantage of is that the fact that he was sedated is probably very difficult to to accurately assess what the origin of the emotional damages are i think it encompasses the entire treatment and the answer to your question just as current as to whether a sexual assault  can ever be deemed patient care i believe that was the question you posed i think the answer to that is yes and there are cases where for example a sex therapist or a psychologist counseling a married couple decides that he will attempt to cure the wife for jedi by describing a course of treatment whereby he has sexual relations with her so that then she is more sexually active with her husband that can be viewed as medical malpractise it can be viewed as mis placement of the transference phenomenon it can be viewed as battery lack of informed consent or sexual assault so it's difficult to separate out in each case what active it is when there are a series of acts that cause the patient damages duty this court said that that duty and breach flowed from the care that the patient received here the same analogy can be made did not dr schroeder a duty not to sexually assault his naked female patients did not the hospital have a duty to provide a female chaperone in a room when a male doctor is examining a naked female patient did not the hospital have a duty if as we have alleged on information and belief they had knowledge that dr schroeder was un t to be examining female patients do not those duties and the breaches of those duties flow from the patient care and as to whether you but for as there being no causal connection to in this instance of patient care just the mere happenstance of someone walking into a dentist's office or walking into a hospital and slipping and falling on a substance on the floor that is how i view the but for causation and and we have so much more in this case as to the question about the intentional conduct miller betokened was a second district case where a psychiatrist revealed confidential communications of the wife to the life's husband after the treatment concluded and the court found that that was an intentional preach of of confidence and intentional act  nonetheless the court held that that breach of confidence subjected or or came within the purview of two one two where there was a two year statute of limitations and not breach of contract with a longer statute and not violate the mental health confidentiality act so in that case then i submit in this case the court does not have to to look at whether the act is intentional or not because clearly based upon the case law even intentional acts can be those arising out of patient care thank you so much for your time and patience your honour's thank you his number one zero nine seven three eight kristen far from a person's jersey community hospital