Federal Judge Awards $906,000 After Nurse Assaults Sedated Patient in Tripler Army Medical Center ICU

On the night of March 11, 2001, a 25-year-old Navy wife who had been admitted to the medical intensive care unit at Tripler Army Medical Center in Honolulu was sexually assaulted by the licensed practical nurse assigned to her. In August 2005, U.S. District Judge Susan Oki Mollway found the United States liable under the Federal Tort Claims Act for failing to protect her and awarded $906,000 to her and her husband after a six-day bench trial.

The patient had collapsed after a night out and arrived at the emergency room just before 3 a.m. with seizure-like activity, a blood alcohol level of 0.162 percent and a low score on the Glasgow Coma Scale. Staff were told someone might have slipped a date-rape drug into her drink, but no test for one was run. She was moved to the intensive care unit, intubated and given several sedatives. Over the next day she drifted in and out of consciousness.

That evening her husband, a Navy chief petty officer, wanted to stay at her bedside. The intern on duty told him she would be resting all night, and he went home. The nurse who would later assault her was in the room during that conversation. From 11 p.m. until 4 a.m. her door and blinds stayed closed. The supervising nurse had looked in at 11 and seen him rubbing lotion on the patient's legs, and she did not find the closed door unusual. At about 2 a.m. the nurse assaulted the patient. She was conscious but could not move or call out beyond a whisper. He later admitted sexual contact, pleaded guilty to one count of sexual abuse and was sentenced to six and a half years in federal prison.

The couple sued for medical negligence, negligent supervision and general negligence. The government argued that the assault-and-battery exception to the Tort Claims Act barred the case and that the hospital could not answer for one nurse's crime. Judge Mollway disagreed. Under Ninth Circuit law, a claim that the government negligently allowed an assault to happen can go forward. She found that Tripler owed a special duty to a sedated patient in its custody, that it already knew staff might assault patients (it had a chaperone policy and knew of an earlier assault in the same unit), and that nobody supervised the nurse or checked on the patient during the hours he was alone with her. She also criticized the defense's treatment of the couple as a 'blame the victim' approach.

Michael Livingston of Davis Levin Livingston tried the case with Mark Davis for the plaintiffs, and Assistant U.S. Attorney R. Michael Burke defended.

The court's award totaled $906,000. Of that, $816,000 went to the patient: $700,000 in general damages for the terror of the assault and for the years of depression and post-traumatic stress that followed, and $116,000 for future counseling outside the military health system, which she distrusted after being assaulted in a hospital. The judge awarded her husband $90,000 for loss of consortium, finding that a stable marriage had been badly strained by the assault.

After the ruling the government said the Army would review the decision and consider an appeal. We found no appellate decision.