A recent spate of allegations of sexual assaults by patients and staff upon mental patients has led to several lawsuits against hospitals. Research in this area has uncovered what appears to be a common but largely unacknowledged problem in mental hospital administration: hospitals sometimes fail to protect their mental patients from sexual attack. A study funded by the National Institute of Mental Health and conducted by the Institute for the Study of Sexual Assault, will provide some descriptive parameters of the problem, but the lawsuits themselves are already indicating directions for patient safety and hospital liability which can inform mental hospital staff and administration in preventing and dealing with complaints about sexual assaults within their facilities.

The major challenge facing the American health care system today is to devise a strategy for achieving three primary objectives simultaneously: (1) high quality, or excellence in standards of care, (2) balance, or equitable access to that quality care, and (3) some reasonable semblance of cost control in providing that quality care to everyone. Following World War II, the weight of government was thrown solidly behind the access and quality portions of the equation, first with the enactment of the Hill-Burton capital financing program and its accompanying community service obligations, and accelerating in the midsixties through creation of Medicare, Medicaid, and other financing and delivery programs entitling categories of individuals to health care benefits.

When a medical malpractice injury occurs in a hospital, the hospital is often sued under the theory that it is vicariously liable for the actions of its employees, through the doctrine of respondeat superior. Depending on the facts of the case and the laws of the state, however, the hospital may also be directly liable to the patient. Establishing the direct liability of the hospital where the facts will not support a vicarious claim may ensure for the plaintiff an adequate “deep pocket” in cases where the physician is inadequately insured. In addition, direct liability carries a longer statute of limitations.

Imposing liability on hospitals, whether vicarious or direct, encourages hospitals to oversee physicians’ competence.

Over the past two decades, discussion has increased among health care professionals about joint or collaborative practice. In 1971, the American Nurses” Association (ANA) and the American Medical Association (AMA) established the National Joint Practice Commission to examine and make recommendations regarding the roles of physicians and nurses in the provision of quality health care. The Commission, comprised of three nurses and three physicians appointed respectively by the ANA and the AMA, defined joint practice as “nurses and physicians collaborating together as colleagues to provide patient care”. The purpose of this broad definition was to include all collaborating registered nurses, not only nurse practitioners.