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R.W. v. Schrein11/1/2002
le for the trier of fact to separate legitimate medicine from a sexual assault, to determine which acts of the care provider were professional treatment and which were not, and then assess by which acts the plaintiffs' damages were caused. In any event, there is no fact question presented in the instant case as to which acts of Schrein caused appellants' damages, and none of those acts are within the scope of coverage of Schrein's liability insurance policy.
For the foregoing reasons, we reject appellants' contention that this court should follow the minority rule. Instead, we continue to adhere to the majority rule as indicated by our decisions in Marx v. Hartford Acc. Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968), and Iwanski v. Gomes, 259 Neb. 632, 611 N.W.2d 607 (2000). In the instant case, the substance of appellants' allegations is that Schrein's behavior went beyond the scope of legitimate medical treatment and that their damages result entirely from actions that were not legitimated by any appropriate medical purpose. Appellants did not establish any harm attributable to any failure to properly diagnose or treat a medical condition. Rather, their injuries and damages resulted solely from the affirmative acts of abuse and molestation committed by Schrein under the guise of medical examination and treatment. Consequently, the "act" that caused each of appellants' damages was not medical treatment and not a "professional service" within the meaning of the policy.
CONCLUSION
As previously indicated, the foregoing discussion is substituted for that section of our opinion in R.W. I in which we erred and which has been withdrawn. In all other respects, we continue to adhere to the reasoning and conclusions of R.W. I, as they pertain to appellants' remaining assignments of error on appeal and rehearing. For the reasons stated in R.W. I and this supplemental opinion, we affirm the judgment of the district court.
Motions for rehearing sustained.
Former opinion modified.
Wright and McCormack, JJ., not participating.
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