Sex with Patient Not within Therapist's "Scope of Employment"
In Scottsdale Ins. Co. v. Flowers (6th Cir. (Ky.) Jan. 16, 2008), the 6th Circuit considered whether a therapist was covered under a liability policy for damages arising from his sexual affair with a patient. The policy, issued to a mental health care facility, covered “those sums that the insured becomes legally obligated to pay as DAMAGES because of injury as a result of a WRONGFUL ACT.” The policy defined “wrongful act” as “an act, error, or omission in the furnishing of professional health care services,” and included as “insured” the facility’s “employees and volunteers, but only for acts within the scope of their employment by you.” At issue was whether the phrase “scope of employment” was ambiguous, and, if not, whether engaging in sexual activities with a patient is within a therapist's scope of employment.
Applying Kentucky law, the court concluded the phrase was not ambiguous. “Scope of employment,” the court reasoned, is a legal term of art. While an insured might legitimately contest its application to the particular facts of a case, this does not create an ambiguity.
Turning to the second issue, the court concluded that engaging in sexual activity with a patient is not within the scope of a therapist's employment. The court explained that the focus of the determination is on the employee’s motive. An employee acts within the scope of his employment when his “purpose, however misguided, is wholly or in part to further the master's business.” When the employee “acts from purely personal motives ... which [are] in no way connected with the employer's interests, he is considered in the ordinary case to have departed from his employment.”
The court relied on a case involving similar facts, Osbourne v. Payne, 31 S.W.3d 911 (Ky.2000), in which the Kentucky Supreme Court explained that “to be within the scope of its employment, the conduct must be of the same general nature as that authorized or incidental to the conduct authorized.” The insured attempted to distinguish this case because the complaint also alleged negligence, but the court rejected the argument, noting there was no evidence that the therapist had negligent sex with the claimant. Instead, the complaint alleged negligence because he engaged in sexual activity. “Engaging in sexual relations with a patient,” the court concluded, “is not motivated by a desire to serve the interests of the therapist's employer, but rather, is designed ‘to satisfy the employee's own sexual proclivities.’”
The court, however, left open the possibility that other allegations in the complaint might be covered by the policy. The complaint alleged that “Flowers ... had the obligation to treat and counsel Burke in a professional manner and he breached his professional and ethical duties to so treat her.” This language, the court concluded, encompassed the possibility that the therapist breached these duties by negligently treating her. The district court had not been asked to consider whether the counseling activities, as opposed to the affair, were within the scope of employment, and did not express an opinion on that question. The appeals court therefore declined to broaden the language of the district court's order.
