QUESTION:
I was sent to see a pain doctor. He came into the exam room and told me I had to sit next to him. I didn’t want to but he insisted. During his questioning, he repeatedly put his hand on my leg. I dismissed it thinking he was just a touchy person, but later after he said he couldn’t treat me and I was about to leave he said he needed to listen to my heart. So I sat down again and he put the scope down my top while standing behind me. Then I got up to leave and he asked me if I had a husband or boyfriend. I answered yes a boyfriend, and then he took me by the shoulders and told me I need to tell my boyfriend to hug me every day and then he hugged me. Then went on to say that I need hugs from 6 different people every day then hugged me again and then got quiet and stared into my eyes and I thought is he going to kiss me? He then leaned in and I quickly turned my face and he kissed my cheek. I quickly got my stuff and left immediately and called my boyfriend screaming! Do I have a sexual battery case?
ANSWER:
A sexual battery claim is subject to if the sexual act was directly related to the manner in which professional health care services were rendered—e.g., fondling a patient’s genitalia during a gynecological exam. The tort of “sexual battery,” is predicated on an intent to cause a “sexually offensive contact” Though probably not necessary because the proscribed act is clearly an “intentional tort” the statute also expressly provides that the perpetrator “is liable” to the victim for punitive damages. “Malice” for punitive damages purposes means “conduct which is intended by the defendant to cause injury to the plaintiff OR despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” For this purpose, plaintiff need not prove “evil intent” or “sinister motive.” Rather, plaintiff need only establish by clear and convincing evidence that defendant intended the consequences which were substantially certain to occur from his or her wrongful conduct. In sexual harassment, assault, battery, or “medical malpractice” suits based on improper sexual contact, defendants may be inclined to seek discovery of plaintiff’s entire sexual history. But plaintiffs do not implicitly waive their privacy interests in past sexual practices simply by filing suit. Absent an explicit showing why probing into this area is directly relevant to plaintiff’s claim and essential to its “fair resolution,” such discovery is off limits. [Vinson v. Super.Ct. (Peralta Comm. College Dist.)]. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.
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