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Legally Speaking: Hacienda, state need to get out their checkbooks

(KTAR News Photo)

The sexual assault of a 29-year-old incapacitated patient who gave birth at Hacienda HealthCare last December was not the first time she was raped while under Hacienda’s care, according to the notice of claim that was served upon the state of Arizona by the patient’s family asking for $45 million in damages.

The notice claims the state is responsible for “negligent, grossly negligent, and recklessly indifferent acts and omissions of the State and others for whom the State is responsible.” It goes on to state the injuries to the victim were “a result of the systemic and individual misconduct and mismanagement of the Hacienda ICF-ID, and virtually non-existent oversight of the part of the State.” This notice is the legally required document that puts the government defendant “on notice” that a lawsuit may be filed against it. It is required to be filed within 180 days of an injury.

There are two sides to this horrific case — the criminal and the civil. On the criminal side, Nathan Sutherland, a licensed nurse at Hacienda, was arrested and charged with sexual assault and vulnerable-adult abuse for allegedly raping the patient victim. Both charges are felonies that could result in significant prison time. Sutherland has pleaded not guilty. This notice does not directly involve him since he is not a government entity. This notice is on the civil side of the case.

The state had and continues to have the responsibility to take care of the victim in this case. This is clear under both state and federal law. As such, according to the notice, the state is responsible, or partly responsible, for Hacienda’s failure to adhere to industry standards, for allowing unsupervised and unattended male caretakers to treat the patient against the family’s wishes, and for failing to even NOTICE the pregnancy and provide adequate health care to the mother and the baby.

As if the pregnancy wasn’t grounds enough for a lawsuit and a hefty settlement amount, the notice discloses the pregnancy may not have been her first and, at a minimum, her body showed signs of previous and repeated sexual activity. There wasn’t just one instance of gross negligence, but several. This case just continues to get more disgusting.

As a side note, this could result in more charges for Sutherland, although it would be difficult to prove he was the perpetrator of additional assaults without DNA or video evidence.

An interesting point brought out in the notice is that the state has already admitted its fault through “admissions” made by Gov. Doug Ducey (the Twitter machine strikes again) and former Arizona Department of Economic Security director Tim Jeffries. These admissions address what the state did wrong. Granted, should this go to trial, there would be some motions about whether these constitute admissions but that is for a different story.

Should the state fail to settle with the plaintiffs and they choose to bring a lawsuit, they will need to prove the state had responsibility over Hacienda and the victim and that it failed to do what it was supposed to do, and that the failure led to the plaintiffs’ injuries. It likely will not be difficult to prove the state had at least some responsibility over the facility, nor will it be difficult to prove the sexual assault or the previous sexual activity. The difficulty may be trying to prove the state or Hacienda did something wrong.

Now, give me a minute to explain before you spit out your coffee.

Facilities like Hacienda and states that support or run them are often protected if they comply with “industry standards.” Complying with industry standards is the standard by which they are judged. So if the hiring procedures, security procedures and things done or not done by the doctors and other medical staff were reasonable and within standards, then Hacienda’s, and thus the state’s liability, may be reduced. Not eliminated, but possibly reduced.

In my opinion, #LegallySpeaking, the reality is this is the death toll for Hacienda and the way these facilities are run in our state. The state and all others involved, from the doctors to the board of directors, will need to get out their checkbooks. A jury would be so disgusted by the facts of the case and with all those involved that they probably couldn’t sign the verdict fast enough and add enough zeros to the judgment.

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