For employers in the state, the lawsuits now being brought against St. Francis Hospital and Medical Center for the alleged actions of a former physician, should be a huge wake-up call that former employees can cause big headaches for their employers — even decades later. These cases — which are still at the earliest stages — arise from the actions of a former physician who had not even worked at the hospital for 15 years (and who died in 1998).
How can this be, you might ask, and why are these claims not automatically time-barred? The claims may arise, in part, due to a change to the statute of limitations in 2002 that addressed claims arising from sexual abuse of minors. For employers in the state who have had employees in the past engage in similar conduct, the case is a unfortunate reminder that long-forgotten claims could still resurface. Steps can be taken now to determine a company’s exposure to such claims and put in place processes to prevent such claims from occurring.
First, a caution: This post is admittedly long and the details of the cases are not for the squeamish. However, the background and length are needed to explain the issues that employers face. The Hartford Courant has a series of articles on the particulars, including the latest one today here.
As the Courant has summarized or indicated in various articles and on its website:
West Hartford, Connecticut police announced a few weeks ago that a homeowner renovating the basement found a large quantity – 50,000 35-mm slides and more than 100 8-mm video reels – of child pornography hidden in a secret storage area in the home. The house was was previously owned by Dr. George Reardon, a former chief of endocrinology at St. Francis Hospital and Medical Center in Hartford with a troubled history.
Dr. Reardon resigned in disgrace in 1993 as a series of witnesses testified before the state Medical Examining Board that he had photographed and molested them as children. Lawyers now contend that the Hospital failed to supervise Reardon.
St. Francis officials have said the hospital was under the impression that Reardon was conducting a legitimate practice and had no idea of any wrongdoing.
"The newest revelations are shocking and, as we’ve said before, our hearts go out to each and every victim," said Barry Feldman, general counsel and senior vice president at St. Francis.
St. Francis, which has offered to help the alleged victims get counseling, is hoping to reach a quick and fair conclusion to the legal actions in the Reardon matter, Feldman said.
Although a few past victims sued Reardon’s estate and won modest settlements after his death, the recently filed lawsuits [after the revelations of the child pornography stash] mark the first time St. Francis has been named in any legal action related to Reardon’s activity in the hospital.
So, if the claims are based on the actions of a doctor from the 1960s to 1993, aren’t they too old to be brought? After all, the "normal" statute of limitations on tort claims (that is. actions for negligence or some actions for personal injuries) is three years. Conn. Gen. Stat. Sec, 52-577.
However, one exception to this statute is that for claims based on the personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault, another much longer statute of limitations applies. In such cases, Conn. Gen. Stat. 52-577d, states that claims may be brought up until that person reaches age 48 — potentially extending the statute of limitations for up to four decades. (Technically, its 30 years from the time a person reaches the age of "majority" — which is age 18.)
Notably, this statute of limitations was increased in 2002 to age 48 (up from age 35 that had been in the statute), through the passage of Public Act 02-138. The act appears to take care of the retroactivity question as well, by noting that new statute is "Effective from passage and applicable to any cause of action arising from an incident committed prior to, on or after said date". Thus, claims that may have been untimely in 1995 or 2000, may now be timely.
Do the claims against St. Francis Hospital meet these criteria? That’s up to a judge or jury, ultimately. The legal claims and facts of each case are different enough that it’s impractical and irresponsible to paint such cases with the same brush. And considering the lawsuits have only been filed this month, it’s still much to early to tell what is going to happen to these claims. To its credit, St. Francis Hospital has been out front on these issues; its website, for example, contains a detailed statement from its President and CEO and notes that the hospital is already taking steps in response.
But for other employers in the state, these cases should be of concern. Publicity of lawsuits like these could lead to other lawsuits against other employers as well for actions of their former employees. Considering the turnover at many companies, many executives may not be aware that such claims might be lingering out there. A prudent executive or in-house counsel should start asking questions internally now to determine what, if any, exposure exists. Questions can be asked, such as:
Are we aware of any instances where one of our employees was accusing of abuse of a child?
If so, what claims have already been made and what is the potential remaining exposure to such claims?
What steps have we taken to preserve any records of such incidents so that we can defend ourselves if new claims surface in the years to come?
Is there any insurance that we have had or have that might cover such a claim?
Who, within the company, has the institutional knowledge to assist in any defense? If they’ve retired or move on, is there a way to contact these people?
Hospitals, schools, day-care centers are all potentially at higher risk for such claims given their employees’ significant contact with children. As such, the case is also another reminder that background checks on employees — to weed out potential problems before those people work for you — remain a good tool to use in the hiring process, which I’ve discussed before.
By analyzing past exposure and implementing good hiring practices now, employers can get a better grip on their potential exposure to such claims and be prepared if such claims do, unfortunately, arise.