Can a Medical Practice Be Responsible for an Employee’s Sexual Misconduct?

Concerns regarding sexual misconduct continue to receive increased attention within the healthcare industry.  The American College of Obstetricians and Gynecologists (ACOG) Committee Opinion pertaining to sexual misconduct notes, “It is difficult to estimate accurately the incidence of sexual misconduct.  Available data rely heavily on patient reporting, and it is estimated that less than 10% of patients subjected to sexual misconduct report their experience.”  Still, ACOG cites a report which found that “between 2003 and 2013, 1,039 physicians had at least one sexual misconduct-related report filed with the National Practitioner Data Bank by hospitals, state medical boards, or other eligible entities.”

In light of these statistics, practices might wonder whether they can be legally responsible for an employee's alleged sexual misconduct.  The legal landscape surrounding employer liability for employees’ sexual misconduct is evolving, and practices should consider the potential impact of these changes.

Understanding how practices might be responsible for an employee’s sexual misconduct requires revisiting a topic discussed in a recent issue of the MICA Insider: vicarious liability.

What is Vicarious Liability?

Medical practices can be held responsible for an employee’s actions through a legal concept known as vicarious liability.  In short, vicarious liability involves holding a third party responsible for someone else’s actions.  

Vicarious liability most commonly arises through an employer-employee relationship.  The basis for the employer’s vicarious liability in this context, is that employers have the right and ability to control their employees’ work.  As a result, employers are usually only responsible for employees’ actions that occur within the scope of the employment.  

Additionally, most courts only impose vicarious liability on an employer when the employee’s actions are motivated by a desire to serve the employer’s interests.  Under this traditional approach to vicarious liability, courts usually conclude that an employee’s sexual misconduct does not serve an employer’s interests.  Consequently, employers are not usually found vicariously liable for employees’ sexual misconduct under the traditional approach to vicarious liability.  However, this legal landscape is evolving.

How is the Legal Landscape Surrounding Vicarious Liability and Sexual Misconduct Evolving? 

Across the country, courts are gradually applying more expansive vicarious liability rules when sexual misconduct is involved.¹   Courts in twenty-six jurisdictions nationwide have allowed claims involving vicarious liability for sexual misconduct to proceed, even though these cases likely would have been dismissed under the traditional approach to vicarious liability.²

Arizona Case Law

In Arizona, for example, the Arizona Supreme Court in 1997 allowed to proceed a vicarious liability claim involving an employer’s liability for an employee who sexually assaulted another employee.  The court reasoned that the employer could reasonably have foreseen the sexual assault, because the assaults took place in the confines of the employee’s work, the employer was aware of the assaultive conduct, and the employer permitted the conduct to continue.

Later that same year, the 9th Circuit Court of Appeals relied on this Arizona case to conclude that a plaintiff who was sexually assaulted by a sheriff’s deputy could maintain a vicarious liability claim against the sheriff’s office.  

The Restatement of Torts

Building upon these Arizona cases and similar cases across the country,³ the legal book about negligence law that is used by courts nationwide recently recommended expanding vicarious liability in sexual misconduct cases.  This book, known as the Restatement of Torts, is often referenced by courts when deciding unsettled issues.  The Restatement is not binding law.  Instead, courts often cite the Restatement as providing the generally accepted rule based on cases nationwide.

In 2025, recommended changes to the portion of the Restatement pertaining to vicarious liability and sexual assault were approved.⁴   Importantly, the recommendations only address an employer’s liability for an employee’s sexual assault of a particularly vulnerable victim.⁵   The recommendations state that a judge or jury can find an employer vicariously liable for an employee’s sexual assault if:

(a) The nature or conditions of the employee’s employment creates a reasonably foreseeable risk of sexual assault;

(b) The victim is particularly vulnerable, by reason of age, mental capacity, disability, incarceration, detention, confinement, medical need, or other similar circumstance;

(c) The employer facilitates the sexual assault by providing the employee with substantial power, authority, or influence over the victim; and

(d) The sexual assault occurs when the employee is performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control.

Importantly, these recommendations are not legally binding.  Although many states and jurisdictions reference the Restatement for guidance and often adopt legal rules that align with the Restatement,⁶ no single jurisdiction has yet adopted a test that exactly mirrors these particular recommendations.⁷

At this time, it remains to be seen whether courts will adopt these recommendations or any version of these recommendations.  Thus, it is likely not yet worthwhile for medical practices to analyze the specific requirements of each element of the recommendations. Instead, the important takeaway is that courts and other legal authorities are trending toward expanding employers’ vicarious liability for employees’ sexual misconduct.

What Might Vicarious Liability Claims for an Employee’s Sexual Misconduct Look Like?

Based on cases nationwide, claims seeking to hold practices or physician groups liable for an employee’s sexual misconduct often include allegations similar to the following:

• • The employee deviated from the standard of care for a medical practitioner, individually and on behalf of the practice or group;
    
    
  • The practice or group knew, or should have known, of the employee’s conduct; and
    
    
  • The sexual misconduct occurred in the person's capacity as an employee or agent of the practice or group.

These claims illustrate some of the ways in which practices and physician groups might face liability for an employee’s sexual misconduct.  Importantly, these claims also highlight that employers might also face liability for the misconduct of independent contractors or agents. 

What Can Practices Do to Reduce the Risk of Vicarious Liability for Employees’ Sexual Misconduct?

Even without knowing the specific requirements, if any, that each state will adopt from the Restatement’s recommended changes, practices can still take steps to reduce the risk of potential liability for employees’ or independent contractors’ sexual misconduct.  Practices should consider the following strategies.

• • Implement thorough hiring procedures.  Conduct careful background checks and reference verifications.  Investigate any red flags and previous problematic behaviors.
    
    

  • Write and enforce strong reporting and chaperone policies.  Policies should clearly inform employees how to report concerning behavior.  Policies should be easy to understand, and employees should receive periodic training on the policies.  Practices seeking more information about chaperone policies can read this MICA article: The Use of Chaperones During Physical Exams.
    
    

  • Make reporting easy.  Ideally, practices should have multiple avenues for reporting concerning behavior.  The reporting process should be easy and not intimidating.
    
    

  • Investigate concerning behavior.  Many sexual misconduct cases involve a pattern of escalating behavior that went uninvestigated for years.  Practices should investigate any concerning behavior and reports received.
    
    

  • Educate patients.  Patients should know what to expect during an exam so they know when something abnormal occurs and can report it.

Overall, practices should recognize that they might be held legally responsible for the sexual misconduct of their employees or independent contractors.  Practices should thus take steps to reduce the likelihood of such misconduct—for their own safety and for the safety of their patients.

^{[1] Restatement (Third) of Torts § 11, p. 150 (Am. L. Inst., Tentative Draft No. 4, 2025).}

^{[2] Id.}

^{[3] See, e.g., L.B. V. United States, 515 P.3d 818, ¶26 (Mont. 2022) (stating that the Supreme Court of Montana would not automatically find that a police officer was acting outside the scope of his employment when he sexually assaulted a victim, and this is a question for the jury); Anderson v. Mandalay Corp., 358 P.3d 242, 247 (Nev. 2015) (explaining that an employee’s sexual assault is not automatically considered unforeseeable by the employer, and Nevada law allows juries to determine whether an employee’s conduct was reasonably foreseeable by the employer); M.J. v. Wisan, 371 P.3d 21, 33 (Utah 2016) (concluding that the proposition that an employee’s sexual misconduct cannot be the basis for vicarious liability is no longer viable in light of developing case law).}

^{[4] Id.}

^{[5] Id.}

^{[6] Espinoza v. Schulenburg, 212 Ariz. 215, 217, ¶7-9 (Ariz. 2006) (“Generally, however, absent law to the contrary, Arizona courts follow the Restatement . . . . We do so here.”)}

^{[7] Restatement (Third) of Torts § 11, p. 153.}