Debating whether sexual abuse is health care
For the women who sued Dr. Broadbent, their case boiled down to a key question: Were the sexual assaults they say they experienced part of their health care? There was a lot hanging on the answer.
If their case was considered medical malpractice, they would be limited in how much money they could receive in damages for their pain and suffering. If a jury awarded them millions of dollars, a judge would be required by law to cut that down to $450,000. There’s no cap on these monetary awards for victims sexually assaulted in other settings.
They would also be required to go before a panel, which includes a doctor, a lawyer and a community member, that decides whether their claims have merit. This step, aimed at resolving disputes out of court, does not block anyone from suing afterward. But it does add cost and delay, and for sexual assault victims who’ve gone through this step, it has been another time they were required to describe their experiences and hope they were believed.
The shorter, 2-year filing deadline for medical malpractice cases can also be a particular challenge for those who have been sexually abused because research shows that it’s common to delay reporting such assaults.
Nationwide, these kinds of malpractice reforms were adopted in the 1970s amid concerns – largely driven by insurance companies – that the cost of health care was rising because of frivolous lawsuits and “runaway juries” doling out multimillion-dollar payouts.
Restricting the size of malpractice awards and imposing other limits, many argued, were effective ways to balance compensating injured patients with protecting everyone’s access to health care.
State laws are generally silent on whether sexual assault lawsuits should be covered by malpractice laws, leaving courts to grapple with that question and leading to different conclusions across the country. The Tribune and ProPublica identified at least six cases in which state appellate judges sharply distinguished between assault and health care in considering whether malpractice laws should apply to sexual assault–related cases.
An appellate court in Wisconsin, for example, ruled in 1993 that a physician having an erection and groping a patient was a purposeful harm, not medical malpractice.
Florida’s law is similar to Utah’s, defining allegations “arising” out of medical care as malpractice. While an earlier ruling did treat sexual assault in a health care setting as medical malpractice, appellate rulings in the last decade have moved away from that interpretation. In 2005, an appellate court affirmed a lower-court ruling that when a dentist “stopped providing dental treatment to the victim and began sexually assaulting her, his professional services ended.”
Similarly, a federal judge in Iowa in 1995 weighed in on the meaning of “arising” out of health care: “Rape is not patient care activity,” he wrote.
But Utah’s malpractice law is so broad that judges have been interpreting it as covering any act performed by a health care provider during medical care. The law was passed in 1976 and is popular with doctors and other health care providers, who have lobbied to keep it in place – and who use it to get lawsuits dismissed.
One precedent-setting case in Utah shows the law’s power to safeguard health care providers and was an important test of how Utah defines medical malpractice. Jacob Scott sued WinGate Wilderness Therapy after the teen broke his leg in 2015 when a hiking guide from the center allowed him to climb up and down a steep outcrop in Utah’s red rock desert.
His parents are both lawyers, and after they found that Utah had a 4-year deadline for filing a personal injury lawsuit, court records said, they decided to prioritize “getting Jacob better” for the first 2 years after the accident. But when Mr. Scott’s suit was filed, WinGate argued it was too late – based on the shorter, 2-year deadline for medical malpractice claims.
Mr. Scott’s attorneys scoffed. “Interacting with nature,” his attorneys argued, “is not health care even under the broadest interpretation of … the Utah Health Care Malpractice Act.”
A judge disagreed and threw out Mr. Scott’s case. The Utah Supreme Court unanimously upheld that ruling in 2021.
“We agree with WinGate,” the justices wrote, “that it was acting as a ‘health care provider’ and providing ‘health care’ when Jacob was hiking and rock climbing.”
Last summer, the women who had sued Dr. Broadbent and the two hospitals watched online as lawyers debated whether the abuse they allegedly suffered was health care.
At the hearing, attorneys for Dr. Broadbent and the hospitals argued that the women should have pursued a medical malpractice case, which required them to first notify Dr. Broadbent and the hospitals that they wanted to sue. They also argued to Judge Robert Lunnen that the case couldn’t move forward because the women hadn’t gone before a prelitigation panel.
Attorneys for Dr. Broadbent and the hospitals argued, one after the other, that the painful and traumatic exams the women described arose out of health care treatments.
“Accepting the allegations of the complaint as true – as we must for purposes of this proceeding – we have to assume that [Broadbent] did something that was medically unnecessary, medically inappropriate,” argued David Jordan, a lawyer for Intermountain Health.
“But it doesn’t change the fact that it’s an act performed to a patient, during the patient’s treatment,” he said. “Because that’s what the patient is doing in the doctor’s office. They’re there for treatment.”
The attorney team for the women pushed back. Terry Rooney argued that if Dr. Broadbent’s actions fell under medical malpractice laws, many women would be knocked out of the case because of the age of their claims, and those who remained would be limited in the amount of money in damages they could receive.
“That’s really what this is about,” he argued. “And so it’s troubling – quite frankly it’s shocking to me – that we’re debating heavily the question of whether sexual abuse is health care.”
The judge mulled the issue for months. Judge Lunnen wrote in a September ruling that if the allegations were true, Dr. Broadbent’s treatment of his patients was “insensitive, disrespectful and degrading.”
But Utah law is clear, he said. Malpractice law covers any act or treatment performed by any health care provider during the patient’s medical care. The women had all been seeking health care, Judge Lunnen wrote, and Dr. Broadbent was providing that when the alleged assaults happened.
Their lawsuit was dismissed.