Class Actions for Sexual Assault?

Class Actions for Sexual Assault?

Class actions are typically reserved for cases in which everyone has the same or similar injuries. The legal name for this concept is “commonality” and it is required under the federal rules of civil procedure**.

In recent months we have seen several instances of physicians who represent sports team or Olympians be accused of multiple instances of sexual abuse.  Although handling these cases together certainly may make sense from an efficiency standpoint, each victim probably has different injuries.

Some victims develop PTSD, some require extensive therapy, some may be unable to work while a few may be so badly affected that they take their own life. Clearly one size doesn’t fit all.

A recent case in West Virginia, demonstrates that sometimes a class action is acceptable. Dr. Stephen Matulis was convicted of first degree sexual abuse for abusing a patient while under anesthesia. Since then, a number of civil suits have been filed.

During Matulis’ criminal trial, prosecutors introduced testimony of a surgical technician who said he observed Matulis insert his fingers into a woman’s vagina while she was unconscious and undergoing a colonoscopy. He said he wasn’t sure about reporting the behavior at first and wasn’t sure if this was something a doctor might due during the procedure.

As the case unfolded, several patients filed suit. None could be sure what happened as they were unconscious.

Ultimately he was convicted at trial of one count and sentenced to 1 to 5 years in prison. While the sentence may seem light to some, prosecutors didn’t have many witnesses as all the patients were unconscious at the time of the alleged assaults. (We say “alleged” because he was only convicted of one count.)

The criminal prosecution wasn’t the end of the case, however. Matulis had performed hundreds of colonoscopies on female patients and many of those patients suffered severe anxiety wondering if they had been molested.

As we often say in this blog, suing the offender typically doesn’t bring much relief. Even if a jury awards a million dollar verdict, collecting from a convicted criminal serving a prison sentence is almost impossible.

Ultimately the court approved a class action against the hospital, Charleston Area Medical Center. The patients say that the hospital failed to properly supervise Matulis and respond to other complaints of sexual harassment.

Just before Christmas 2020, a West Virginia judge approved a $23.1 million class action settlement brought on behalf of Matulis female patients. The settlement equates to approximately $6,000 per patient.

Any former patient can opt out of the settlement and pursue their own individual case, however, proving what happened will be very difficult. Under these circumstances, we agree that a class action was not only the best way but probably the only way of prosecuting the claims of his many patients.

Several hospital employees are pursuing their own individual sexual harassment cases against Matulis and the hospital. Although the hospital cooperated and ultimately offered its entire insurance policy to the patients, it says it will fight the employee cases.

We wonder how these cases can go on for so long before someone investigates or reports the illegal conduct. Surely the surgical tech who blew the whistle wasn’t the only one how observed something was wrong.

In fact, at the trial others claimed he inappropriately “cleaned up” and wiped patients’ vaginal area after their colonoscopy. Someone said he grabbed a patient’s breast.

No one likes to rock the boat at work. By remaining silent, however, monsters like Doctor Larry Nassar, the serial rapist who formerly was a team physician for U.S. Gymnastics and Michigan State University. Just like in Matulis’ case, reports and rumors were apparently ignored.

We have also found that state medical boards (usually the majority of whom are doctors) are slow to take action. In Matulis’ case there was almost a two year delay between the accusations and action by the West Virginia Medical Board and ironically, Matulis was allowed to “not renew” his license.

In our opinion, far too many hospitals and medical boards do more to protect doctors instead of patients. When they do act, it is often to “rehabilitate” the offender instead of protecting his or her patients.

My Doctor Sexually Abused Me, What Can I Do?

No patient should ever experience any form of sexual abuse or sexual impropriety by a physician. Patients rely on their doctor to for their physical well-being. Unfortunately, in this case, until Matulis was indicted, most victims didn’t even know they were victims.

If you are the victim of sexual misconduct by a physician, contact a lawyer that handles sexual abuse cases. Medical boards know they can’t easily sweep cases under the rug when a good lawyer is involved.  Depending on your comfort level, your lawyer can help you report the offender to both the police and state licensing agencies. If the physician has hospital privileges, he or she can also be reported to the hospital. The goals are to get justice for you and to stop any further abuse.

Doctors and often the hospitals and clinics that employ them can be sued and held responsible for monetary damages.

Are you a victim of sexual misconduct by a doctor? We can help. Contact us online, by email [hidden email] or by phone at 877.858.8018. All inquiries are kept confidential and protected by the attorney – client privilege. Most victims of sexual assault are women. If you feel more comfortable with a lawyer of a particular gender, just let us know.

The author of this post, Attorney Brian Mahany, is a former police officer, prosecutor, member of the Family Violence Project and volunteer at the Sexual Assault Crisis and Support Center.

**Federal Rules of Civil Procedure Rule 23 says in relevant part,

“One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

… (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

[Photo credit: Photo by Mary Oloumi]

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