15 - Commentary on Lisa M. v. Henry Mayo Newhall Memorial Hospital

Summary

Lisa M. v. Henry Mayo Newhall Memorial Hospital exemplifies the reluctance of many courts to impose vicarious liability in cases of employee sexual abuse, treating cases of sexual abuse differently from other cases. The California Supreme Court in Lisa M. ruled against a pregnant patient who had been sexually molested by a hospital technician under the guise of performing an ultrasound examination. The court determined that the assault was “outside the scope of employment,” not fairly attributable to the employer, and the result only of “propinquity and lust.” The rewritten feminist opinion recharacterizes the assault as an outgrowth of employment, emphasizing that the employee exercised job-created control and power over plaintiff’s body. Because sexual assaults are not uncommon in the healthcare setting, the feminist opinion regards the assault as foreseeable and would allow a jury to determine whether vicarious liability is warranted because the assault was committed within the scope of employment. The accompanying commentary situates the case at the intersection of sexual violence and women’s health and examines how job-created power can make a patient vulnerable to harm by medical professionals.