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Martinmaas v. Engelmann6/28/2000
action is the "negligence" of the doctor in rendering services to the patient. A majority of jurisdictions have determined that "sexual assault by a physician on a patient is generally not covered by malpractice insurance." See Princeton Ins. Co. v. Chunmuang, 698 A2d 9, 12-14 (NJ 1997). Further, the scope of medical malpractice coverage has been defined as "limited to the performing or rendering of 'professional' acts or services." See id. at 13 (quoting Marx v. Hartford Accident & Indemn. Co., 157 NW2d 870, 871-72 (Neb 1968)). Clearly, the intentional act of sexually assaulting a patient is devoid of any "performance of professional acts or services."
[ ] In American jurisprudence, there exists an abiding principle "'that common sense does not take flight when one enters a courtroom.'" See St. Paul Fire & Marine Ins. Co. v. Shernow, 610 A2d 1281, 1286 (Conn 1992) (Borden, J., dissenting) (quoting American Nat'l Fire Ins. Co. v. Schuss, 607 A2d 418 (Conn 1992)). This common sense should not be left at the door, even at this appellate level. Common sense tells me that sexual assault is an "intentional" tort. See., e.g., Paneson v. Zubillaga, 753 So2d 127, 129 (FlaDistCtApp 2000) (addressing doctor's unlawful and unpermitted sexual touching of patient as an intentional tort); Primeaux v. United States, 149 F3d 897, 903 (8thCir 1998) (Loken, J., dissenting) (noting that under the Federal Tort Claims Act ยง 2680(h), " ape and other sexual assaults are within the classes of intentional torts"); Fearing v. Bucher, 977 P2d 1163, 1166 (Or 1999) (discussing employer's vicarious liability for an employee's intentional tort of sexual assault); Howcroft v. Howcroft, 223 BR 845, 849 (NHBank 1998) (noting that sexual assault falls within traditional category of intentional tort); Moen v. Baransky, 1997 WL 666763, *1 (ConnSuperCt 1997) (addressing the elements of the "intentional tort of sexual assault"). Both these patients had pled an intentional tort claim, but dismissed those claims prior to trial.
[ ] In the case of St. Paul Insurance Co. of Illinois v. Cromeans, 771 FSupp 349 (NDAla 1991), the court was dealing again with a coverage issue involving sexual mistreatment of patients and held as follows:
ST. PAUL's professional liability policy issued to [Dr.] Joe G. Cromeans was intended by the insurer and the insured to cover the insured doctor for injuries he negligently or wantonly caused while medically treating or attempting to medically treat a patient for a medical ill but not for intentional actions taken by the insured doctor directed to or towards the patient to satisfy the doctor's sexual lust or to otherwise further his own prurient interests.
...
The Hirst court quoted an oft-used definition of "professional services" from Marx v. Hartford Accident and Indemnity Co., 157 NW2d 870 (Neb 1968).
The scope of "professional services" does not include all forms of a doctor's conduct simply because he is a doctor ... Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind ... In determining whether a particular act is of a professional nature or a "professional service" we must look not to the title or character of the party performing the act, but to the act itself. Id. at 353 (citing Hirst v. St. Paul Fire & Marine Ins. Co., 683 P2d 440 (IdahoCtApp 1984)) (emphasis added).
[ ] To consider Dr. Engelmann's sexual misconduct malpractice under the guise of negligence would amount to covering an intentional act in a lamb's coat so that the wolf has coverage. I submit that since the intent
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