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13-P-1998 Appeals Court

JANE DOE & another1

 vs. BOSTON MEDICAL CENTER CORPORATION.

No. 13-P-1998.

Suffolk. May 6, 2015. - September 9, 2015.

Present: Rubin, Brown, & Maldonado, JJ.

Practice, Civil, Summary judgment. Negligence, Hospital, Duty 

to prevent harm, Foreseeability of harm.

Civil action commenced in the Superior Court Department on 

March 2, 2011. 

The case was heard by Heidi E. Brieger, J., on a motion for 

summary judgment.

Matthew W. Perkins for the plaintiffs.

Joseph A. King (Kevin M. Sullivan with him) for the 

defendant.

BROWN, J. The plaintiffs, Jane and John Doe, filed an 

amended complaint for negligent supervision and loss of 

consortium, arising out of an assault on Jane by Boston Medical 

Center Corporation (hospital) interpreter Thomas Consoli. A 

1 John Doe. The plaintiffs' names are pseudonyms.

 
2

Superior Court judge entered summary judgment in favor of the 

hospital. The plaintiffs appeal. We reverse.

1. Background. We summarize the relevant facts from the 

record in the light most favorable to the nonmoving party. 

See Foster v. Group Health Inc., 444 Mass. 668, 672 (2005). The 

facts as written are undisputed. In 2004, after obtaining a 

Criminal Offender Record Information (CORI) report from the 

Criminal History Systems Board, indicating no prior criminal 

convictions, the hospital hired Consoli as an interpreter. 

Shortly after being hired Consoli was oriented and informed of 

the hospital's policies. One such policy was that as an 

interpreter, Consoli was never to touch or be alone with any 

patients. This policy was self-regulated by Consoli, that is, 

the only person to insure that Consoli was never alone with a 

patient was himself.

On March 31, 2008, Jane, a Spanish-speaking immigrant from 

Guatemala who understands minimal English and has no formal 

education, was admitted to the hospital in connection with the 

impending labor and delivery of her first child. She was 

directed to a room and changed into a hospital gown. At or 

shortly after 3:05 P.M. Consoli entered Jane's hospital room and 

translated between Jane and Jane's doctor and nurse. After 

speaking with Jane, Consoli and the medical team went out of the 

room, leaving her door open. Consoli told the nurse that he was 
3

going to another assignment in triage, but when she departed, he 

remained outside Jane's room.

Soon after, Consoli reentered Jane's room, alone, and asked 

Jane where she felt pain. He told her that he was examining her 

for medical purposes, lifted her gown, and touched her abdomen 

and vagina, then left the room. The nurse returned and found 

Consoli outside Jane's room. She informed him that she would 

page interpreter services when the anesthesiologist arrived. 

Consoli left the area at about 3:15-3:20 P.M.

At about 3:20 P.M. that day, the hospital's director of 

patient advocacy was notified by another patient's primary care 

doctor that his patient had been sexually assaulted in the 

hospital that morning at around 9:15 A.M. by an interpreter in 

another part of the hospital. The hospital's department of 

public safety was notified immediately and an investigation was 

begun. Later that day, it was discovered that Consoli had been 

the patient's interpreter. The hospital placed Consoli on leave 

pending the outcome of the investigation and deactivated his 

electronic access to the hospital. He was subsequently 

terminated.2

2. Discussion. We review the grant of summary judgment de 

novo. Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 

2 Consoli was later convicted of indecent assault and 

battery and assault and battery for his actions. See 

Commonwealth v. Consoli, 82 Mass. App. Ct. 1109 (2012).

 
4

752, 756 (2010). The order will be affirmed if, when "viewing 

the evidence in the light most favorable to the nonmoving party, 

all material facts have been established and the moving party is 

entitled to a judgment as a matter of law." Augat, Inc.

v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing 

Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Mass.R.Civ.P. 

56(c), as amended, 436 Mass. 1404 (2002). 

In their complaint, the plaintiffs claimed that the 

hospital should be held liable for its negligent supervision of 

Consoli. Ordinarily, "summary judgment is not an appropriate 

means to resolve negligence cases, because usually the question 

of negligence is one of fact. . . . However, a judge may decide 

the issue as matter of law when no rational view of the evidence 

permits a finding of negligence." Roderick v. Brandy Hill Co., 

36 Mass. App. Ct. 948, 949 (1994). This is not such a case. 

"To prevail on a claim of negligence, 'a plaintiff must 

prove that the defendant owed the plaintiff a duty of reasonable 

care, that the defendant breached this duty, that damage 

resulted, and that there was a causal relation between the 

breach of the duty and the damage.'" Lev v. Beverly 

Enterprises-Massachusetts, Inc., 457 Mass. 234, 239-240 (2010), 

quoting from Jupin v. Kask, 447 Mass. 141, 146 (2006).

Hospitals are responsible for "exercising reasonable care to 

ensure that their employees do not cause foreseeable harm to a 
5

foreseeable class of plaintiffs." Roe No.1 v. Children's Hosp. 

Med. Center, 469 Mass. 710, 714 (2014). Such a duty arises when 

the hospital "employment facilitates the employee's causing harm 

to third parties." Lev, 457 Mass. at 244 (citation omitted). 

Employment is a special relationship giving rise to a duty of 

reasonable care to third parties "when the employment 

facilitates the employee's causing harm to third parties"; 

"[e]mployment facilitates harm to others when the employment 

provides the employee access to physical locations . . . or 

other means by which to cause harm that would otherwise not be 

available to the employee." Restatement (Third) of Torts: 

Liability for Physical and Emotional Harm § 41 & comment e, at 

67 (2012). Consoli's employment facilitated the sexual assault 

upon Jane as it gave him the means to access her room alone. 

Thus, the hospital had a duty to exercise reasonable care to 

protect Jane against foreseeable harm done by its employees. 

The motion judge ruled that "no rational view of the 

evidence permits a conclusion that [the hospital] could have 

foreseen Consoli's assault on Doe." This was in error. 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 
6

it. The hospital's policy regarding interpreters being alone 

with patients makes it clear that such harm was foreseeable. 

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. See and compare Mullins v. Pine Manor 

College, 389 Mass. 47, 56, 58 (1983).

Accordingly, we reverse the order allowing the motion for 

summary judgment and remand for further proceedings.

Judgment reversed.