Matthew W. Perkins for the plaintiffs.
Joseph A. King (Kevin M. Sullivan with him) for the defendant.
JUDGES: Present: Rubin, Brown, & Maldonado, JJ.
PRIOR-HISTORY: Suffolk. 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.
HEADNOTES-1 Practice, Civil, Summary judgment. Negligence, Hospital, Duty to prevent harm, Foreseeability of harm.
In an action against a hospital for negligent supervision and loss of consortium arising out of an assault on an unattended, minimally clothed patient by a hospital interpreter, at a time when the door to the patient's room was unlocked, open, and unmonitored, and unauthorized hospital employees had access to it, the judge erred in granting summary judgment to the hospital, where, given that the hospital's policy regarding interpreters being alone with patients made it clear that such harm was foreseeable, the question whether the hospital met its duty of reasonable care remained a genuine issue of material fact for the jury to decide.
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 Superior Court judge entered summary judgment in favor of the hospital. The plaintiffs appeal. We reverse.
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, 830 N.E.2d 1061 (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 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 ...