Opinion
C.A. No.: 01C-04-142-FSS.
Submitted: September 29, 2003.
Decided: December 29, 2003. Bench Trial: September 29, 2003.
ORDER VERDICT AFTER BENCH TRIAL
This civil case stems from a sexual assault committed against Plaintiff by her doctor. Defendant was prosecuted criminally and convicted not only for molesting Plaintiff, but also for molesting another patient in 1999. Defendant's misconduct toward Plaintiff basically involved his grabbing at her breast, trying to put his mouth on it under her blouse, and at the same time trying to slide his hand under her shorts. The battery was preceded by what may have been inappropriate questioning and discussion about Plaintiff's sex life.
Despite the fact that he was a first-offender, elderly and in poor health, the court sentenced Defendant to prison. Defendant's other victim, whom he mistreated much like Plaintiff, did not file a separate, civil suit. Plaintiff did. Defendant's employer defaulted. Meanwhile, Defendant, who had counsel for the criminal trial, represented himself here. He answered the complaint, but failed to participate in pre-trial proceedings. Mostly, he blamed his defaults on his health. He did participate in the bench trial held on September 29, 2003. This is the court's verdict.
Defendant still maintains his innocence. After his conviction at a full-blown, criminal jury trial where he was found guilty beyond a reasonable doubt, Defendant is now precluded from challenging the facts in the indictment. They form the factual basis for liability in Plaintiff's civil complaint. So, as a matter of law, Defendant's civil liability, in effect, was conclusively established at his criminal trial. Moreover, having heard the evidence at both trials, the court is satisfied that Plaintiff has proved Defendant liable by a preponderance of the evidence, the civil liability standard. Accordingly, this decision primarily addresses Plaintiff's damages.
Miller v. Falconetti, 1993 WL 603298, at *1 (Del.Super.) (citing Lomax v. Nationwide Mutual Insurance Company, 776 F. Supp. 870, 874 (D. Del. 1991)) (requirements for issue preclusion are: issues in present and prior cases identical, issue raised and fully litigated in prior case, issue material and relevant to disposition of prior action, and determination of issue in prior action necessary and essential to resulting judgment). See also Acierno v. New Castle County, 679 A.2d 455, 459 (Del. 1996) (citations omitted) ("where a question of fact essential to the judgment is litigated and determined by a valid and final judgment the determination is conclusive between the same parties in a subsequent case on a different cause of action").
Andrews Miller Associates, Inc. v. Forest Grove, Inc., 1994 WL 380996, at *1 (Del.Super.) (burden of proof in civil cases is by preponderance of the evidence).
Plaintiff is entitled to an amount that will compensate herreasonably for the emotional harm caused by Defendant that she sustained and will suffer in the future. Beyond the feelings of betrayal, embarrassment, humiliation and anxiety readily associated with this sort of misconduct by a health care provider, Plaintiff feels anger and remorse because she did not physically retaliate when Defendant put his hand on her. Plaintiff punishes herself for not resorting to self-help, of which she feels she was capable, when Defendant attacked her. Remorse and self-punishment are uncalled for, but they are common reactions of people who have been through what Plaintiff experienced.
Brett v. Berkowitz, 706 A.2d 509, 513 (Del. 1998) (plaintiff can recover damages for intentional infliction of emotional distress, even in absence of accompanying bodily harm, if severe emotional distress caused by extreme and outrageous conduct).
Without minimizing the wrongfulness of Defendant's conduct, the damage award must be tempered to some extent. First, the damage award in this civil case is intended to compensate Plaintiff for her loss, not to punish Defendant. As mentioned, Defendant was prosecuted criminally. Not only was he punished by imprisonment, he will never again practice medicine and he, too, has been subjected to embarrassment and humiliation. The measure of Plaintiff's civil claim is the damages proximately caused to her by Defendant's wrongful conduct. Those damages must reflect the actual harm Defendant's intentional misconduct caused Plaintiff.
Plaintiff presented her psychologist's uncontested deposition. She first consulted the psychologist in 2001, approximately two years after the incident. Based on Plaintiff's reported concerns, he diagnosed her with post-traumatic stress disorder and major, clinical depression, attributable to the incident. The psychologist catalogued a host of problems associated with the diagnosed disorders. He opined that Plaintiff showed improvement through medication and counseling over a few months. While the psychologist would not offer a firm statement that Plaintiff's conditions will be permanent, he thought "it's very likely that she'll have some long lasting effects from this."
The psychologist's testimony was helpful, but it was undermined by the subjective information on which it relied. For example, consistent with the facts alleged in the complaint, the psychologist repeatedly refers to the incident as a "rape." And, the psychologist refers to Plaintiff as a "rape survivor." Defendant was not prosecuted for rape, and as the court recalls the testimony without benefit of transcript, Defendant's misconduct amounted to sexual assault. The psychologist's mis-characterization of the incident raises concern about whether the psychologist views the distinction between rape and sexual assault as clinically insignificant, or whether he was mis-informed about precisely what Plaintiff experienced. If the answer is the latter, it calls the psychologist's entire opinion into question.
Also, the psychologist saw Plaintiff's depression as a new condition. He was unaware that Plaintiff was widowed in 1996, three years before the incident. Similarly, Plaintiff testified that the incident caused serious problems, such as reclusiveness, which she did not mention to the psychologist. The burden is on Plaintiff to make the basis of her psychological expert's opinion clear, which it is not.
Again, the court is not minimizing Defendant's misbehavior. The court saw it as bad enough to justify imprisonment. Plaintiff proved that Defendant's misconduct caused damages, for which she is entitled to compensation. But although it happened while Defendant was in a position of trust and Plaintiff was vulnerable, it involved a single, quick incident that did not happen during her actual examination, when Plaintiff was most vulnerable. The examination was over. Plaintiffhad dressed and she was not in the examination room when Defendant misbehaved. Meanwhile, the incident caused no physical harm. Plaintiff is a working mother, and the record shows that she is not especially fragile. Although Plaintiff was hurt by Defendant, the court cannot credit all the damages Plaintiff attributes to Defendant. The court cannot find from the evidence presented that Plaintiff is as devastated as she claims.
Based on the record, generally, and the foregoing reasons, specifically, the court FINDS for Plaintiff and against all Defendants, jointly and severally. Upon submission after approval as to form, the court will enter a final judgement order in the amount of $8,500, plus her psychologist's bills and costs.