Sparks Regional Medical Center v. Smith

• Court: Arkansas Court of Appeals
• Writing for the Court: PITTMAN
• Citation: Sparks Regional Medical Center v. Smith, 976 S.W.2d 396, 63 Ark.App. 131 (Ark. App. 1998)
• Decision Date: 07 October 1998
• Docket Number: No. CA,CA
• Parties: , 14 IER Cases 1373 SPARKS REGIONAL MEDICAL CENTER, Appellant, v. Donna SMITH, Appellee. 97-1478.

Page 396

976 S.W.2d 396

63 Ark.App. 131, 14 IER Cases 1373

SPARKS REGIONAL MEDICAL CENTER, Appellant, v. Donna SMITH, Appellee.

No. CA 97-1478.

Court of Appeals of Arkansas Division II.

Oct. 7, 1998.

G. Alan Wooten, Kathryn Stock Campbell, Fort Smith, for Appellant.

Charles Karr, Fort Smith, for Appellee.

PITTMAN, Judge.

The appellee in this tort case, Donna Smith, sued the appellant, Sparks Regional Medical Center, alleging that, while she was a patient at Sparks on July 2, 1994, she was sexually assaulted by an employee assigned to bathe her. Appellee asserted that appellant had been negligent in hiring the employee, Jeff Chavez, because he previously had been discharged by another hospital for sexually harassing a patient. Appellee further asserted that appellant had been negligent in failing to properly supervise Mr. Chavez because appellant knew that Mr. Chavez had sexually harassed other patients while employed by appellant. The jury found in favor of appellee and awarded her damages in the amount of $80,000. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in denying its motions for directed verdict at the close of the trial and for judgment notwithstanding the verdict after the verdict was returned. Appellant argues that it was not responsible for the intentional criminal conduct of Mr. Chavez because Mr. Chavez was acting outside the scope of his employment when he sexually assaulted appellee. We affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Medlock v. Burden, 321 Ark. 269, 900 S.W.2d 552 (1995). Our standard in reviewing the sufficiency of the evidence is well settled: (1) the evidence is viewed in a light most favorable to the appellee; (2) the jury's finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is evidence of sufficient force and character to induce the mind of the fact finder past speculation and conjecture. Id. Similarly, where a motion for judgment notwithstanding the verdict is denied, we must also determine whether the verdict is supported by substantial evidence. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

Viewing the evidence, as we must, in the light most favorable to the appellee, the record reflects that, before he was hired by appellant, Mr. Chavez was discharged by St. Edward Mercy Medical Center for sexually abusing patients. Criminal charges were filed against him based on one of those incidents. After being terminated by St. Edward, Mr. Chavez applied in July 1993 for a position at the appellant hospital. He did not list St. Edward as a prior employer on his application, and, although a five-year gap in Mr. Chavez's employment history appeared on his application for employment with appellant, appellant neither investigated the matter nor performed a background check. Mr. Chavez was hired by appellant and, after beginning his employment, was seen by other employees of appellant who had worked with him at St. Edward and were aware of the incident resulting in his dismissal. In January 1994, a fellow employee reported that two female patients in the psychiatric ward informed him that Mr. Chavez had engaged in sexual contact and conversation with them in their rooms. Appellant placed Mr. Chavez on probation in a disciplinary-action report that stated:

Jeff, as you are aware, this is an extremely serious situation. This behavior would certainly result in immediate termination if verified by those patients involved. At this time, I am placing you on probation as there is still some variation in the report by the patients involved. Jeff, you must understand that any occurrence of this nature will result in immediate termination. I would advise you to consider very carefully the areas in which you agree to work--do not put yourself in a position that might result in a repeat of this.

Although Mr. Chavez was placed on disciplinary probation, his work activities at the hospital were not altered or restricted. Approximately six months later, on July 2, 1994, Mr. Chavez entered the hospital room of appellee, who was recovering from surgery to correct complications arising out of a heart catheterization. Mr. Chavez announced that he had been assigned to bathe appellee, and he did so against her express wishes and protestations. He pushed her gown up to her breasts, bathed only her vaginal area, and left her in a wet bed when he was finished. Appellee suffered extreme psychological trauma, anxiety, and distress as a result of the incident. Appellant concedes that Mr. Chavez's act was criminal and that it resulted in a conviction of first-degree sexual abuse.

Appellee proceeded below on the theories of...