The extraordinary news of a lawsuit filed this week in Los Angeles alleging that a major university looked the other way as a school doctor abused students, some of them Olympic-level athletes, is a stern but necessary reminder of the role our courts play in holding abusers to account.
According to detailed reporting by ESPN “officials at Michigan State University missed early warning signs about… the school doctor and former USA Gymnastics team physician accused in recent months of multiple sex crimes.”
According to ESPN, citing legal proceedings, the team doctor conducted what he called “inter-vaginal adjustments” on an 18-year-old athlete who had come to him for treatment of back pain. Over time the ‘treatments’ became more and more intrusive to a point where few reasonable people reading the descriptions of them could characterize them as anything other than sexual assault.
The university’s reaction to all of this was equally unacceptable. Over time the young woman at the center of the current lawsuit contacted three different athletic trainers – employees of the school. The first one dismissed her concerns citing the doctor’s prestige. As she continued to express skepticism “to the highest-ranking employees within MSU’s training staff, in or around 2000, the Plaintiff was intimidated, coerced and threatened by high-ranking MSU training staff and told that she was not sexually abused… and not to make such obligations.” ESPN also outlines a number of equally shocking allegations against the doctor, many of them stretching back nearly 20 years and some involving children. According to ESPN more than 50 women have filed sexual abuse complaints against the doctor.
What we have here, based on the media reports, are clear cases of both medical malpractice and sexual assault by the doctor and of negligence by the university. As a pamphlet prepared by some of my Oregon legal colleagues at VictimsofCrime.org outlines, civil law defines negligence as “the failure to use such care as a reasonably prudent person would use under similar circumstances.” Examples specifically include the failure of an employer or institution to dismiss perpetrators. Allegations that Michigan State University failed to inform USA Gymnastics (for whom the defendant was team doctor) that it was investigating allegations of sexual abuse against the doctor are also especially troubling and, again, are evidence of an employer failing to act properly.
A case like the one in Michigan therefore creates liability both for the university, which failed both as an employer and in its duty to maintain a safe environment for its students, and individual liability for the managers who failed to act when legitimate concerns were raised about a colleague’s conduct. The university in particular has a special relationship with its students that involves an affirmative duty to protect them from someone like this doctor. The fact that, according to the suit, the university looked the other way even after legitimate concerns were raised is an especially glaring failure on the part of an institution that we all expect to hold itself to especially high standards. All of this is above and beyond any medical malpractice issues which the defendant must confront as a result of his status as a physician. Oregon law also allows claims for the intentional or reckless infliction of emotional distress, a standard which cases like the one outlined here clearly meet.
Because the case we are analyzing here concerns sexual assault, it is also important to address privacy issues. Though the victim in this particular case has come forward publically, many people in her position are reluctant to take the same public stance. Indeed, where sexual assault is concerned many perpetrators count on victims’ shame to protect themselves from responsibility for their actions. Oregon civil law, however, offers “several methods that may be available to protect victims’ privacy, including the use of pseudonyms, protective orders and sealed documents. Each of these techniques allows victims to pursue civil justice without subjecting them to further harm,” according to the civil law pamphlet compiled by VictimsofCrime.org (see link below).
As a Portland attorney practicing in both Oregon and Washington I am proud to be able to help individuals and families who have been the victims of sexual assault, medical malpractice and negligence be it on the part of employers, schools or reckless fellow citizens. Our civil courts are a powerful tool through which Oregonians can hold irresponsible people and institutions to account when their actions cause harm.
VictimsofCrime.org: Civil Justice for Victims of Crime in Oregon