Texas Appeals Court Finds Statute Only Imposes Liability On Employer
For Sexual Abuse Of Patient When Employer Has Knowledge Of Past Abuse Of
That Same Patient
A Texas appeals court found that a state mental health statute only
imposes liability on an employer for failure to take necessary action to
prevent or stop sexual exploitation of a patient when the employer knew
or had reason to know of the sexual exploitation of that same patient by
its employee. Thus, the appeals court found no liability under the
statute when the employer knew of previous sexual abuse with a different
On October 11, 1999, N.P. was admitted as a patient in the
psychiatric unit at Methodist Hospital where Mark Kennerson was employed
as a psychiatric technician. Another patient had alleged earlier that
she had consensual sex with Kennerson while in a �manic
Methodist undertook an investigation as a result of that allegation,
including interviewing Kennerson who denied involvement. No restrictions
were placed on Kennerson�s job duties or his access to female
patients and on October 22, 1999, Kennerson was assigned to monitor N.P.
for suicide watch. N.P alleged that Kennerson engaged in inappropriate
sexual contact with her that evening. Methodist again investigated and
ultimately fired Kennerson.
N.P. filed suit on October 22, 2002 alleging that under �
81.003(a) of the Tex. Civ. Prac. & Rem. Code Methodist was
liable for damages caused by its failure to take necessary action to
prevent or stop the sexual exploitation of her by its employee and
asserting common law causes of action.
The trial court granted partial summary judgment to Methodist on the
common law claims, finding N.P.�s suit time barred by the two-year
statute of limitations on such claims. The trial court also granted
summary judgment to Methodist on N.P.�s � 81.003 claims,
finding the statute inapplicable. N.P. appealed that ruling.
The Texas Court of Appeals, First District, affirmed. Methodist
argued that � 81.003 only imposes liability on a mental health
service provider employer when the mental health services
provider�s sexual exploitation of the patient bringing suit
continues after the employer knew or reasonably should have known of the
sexual exploitation of the same patient.
The appeals court, on an issue of first impression, found the statute
unambiguously refers to one patient only. In other words, there is no
liability where the employer knew of sexual abuse of a different patient
and there was no ongoing abuse of one single patient, the appeals court
said. According to the appeals court, �the Legislature
specifically created a cause of action for one patient who is a victim
of a pattern, practice or scheme of conduct constituting sexual
The appeals court next addressed N.P.�s argument that Methodist
was liable under the doctrine of respondeat superior. However, the
appeals court found that the statute �does not encompass vicarious
liability beyond any expressly created� in the text.
The appeals court thus affirmed the trial court�s grant of
summary judgment to Methodist.
v. The Methodist Hospital and The Methodist Health Care
System, NO. 01-04-00213-CV (Tex. Ct. App. Jan. 5,