An Idaho Supreme court ruled that a mental health counselor for a hospital employee counseling service had a duty to disclose client's history of deviant sexual behavior. The court further held that there were genuine issues of fact as to the hospital's liability for a young patient's sexual abuse at the hands of this employee, as such abuse might have been prevented had the employee's proclivities been revealed and effectively dealt with.
Fred Garcia was hired by an Idaho medical center as a respiratory therapist in 1987. His hiring application had revealed nothing out of the ordinary.
Shortly after his employment began, however, he was reprimanded for encouraging underage employees to go out drinking with him.
Garcia voluntarily sought out the services of the hospital's counseling program as he felt he was "too preoccupied with sex." The staff of this program were directly employed by the hospital.
Garcia confided to his counselor that he had been terminated from his previous employment at another hospital for molesting a young patient 3 years before.
The counseling service advised nobody of this admission.
A year later, 13-year old "John Doe" became a patient at the hospital. During the course of his 6 week admission, Doe became friendly with Garcia who was his respiratory therapist. This "friendship" continued even after Doe's discharge.
About a year later the hospital fired Garcia as he had continued to go out drinking with underage hospital employees. Shortly after this, Garcia began sexually molesting Doe, whom he had maintained contact with.
Doe brought suit against Garcia and the hospital claiming the hospital negligent in not being thorough enough in its hiring investigative practices. Doe also asserted that the hospital's counseling program had failed in their duty to warn others of Garcia's history and propensities.
The court agreed that the counseling service had this duty and was negligent in its failure to exercise it. It ruled that while counseling is designed around confidentiality, it is well settled that this must be waived if someone was in danger.
WHAT DOE MEANS
Duty to protect is expanded to Employee Assistance Program (EAP) counselors.
Given Garcia's close proximity and interaction with many under age co-workers and dependent patients, such danger was all too apparent and probable.
In deciding whether the hospital was also negligent in not being more exhaustive in its hiring investigation and in allowing the friendship between Garcia and Doe to develop and continue, the court held that more factual information was needed. Accordingly, these issues were sent back to the lower court for further proceedings.
