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Ben Glass
Ben Glass
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Is Sexual Assault Medical Malpractice?

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In a watershed decision for Virginia, the Supreme Court has ruled that when a patient claims that she was sexually assaulted at a nursing home, the nursing home may not hide behind Virginia’s medical malpractice laws and it’s artificial limits and restrictive rules.

Woodbine Nursing home in Alexandria, Virginia was sued by the estate of a resident. The resident, now deceased, was sexually assaulted four days after she was admitted.

According to the Supreme Court opinion her attacker was never identified. The representative sued Woodbine for negligence, sexual assault and battery.

Woodbine contended that it could only be sued for “medical malpractice malpractice,” not general negligence because, it claimed, it was a health care provider providing “professional services.”

This would have meant that the plaintiff would have to use expert testimony to prove that Woodbine was not
only negligent, but was guilty of “violating standards of care” (which is required in malpractice

Since the plaintiff did not have experts to testify that Woodbine was guilty of “medical
malpractice” the case was dismissed.

The Supreme Court ruled that Woodbine had many obligations to the plaintiff, and that while
some were certainly “medical,” when the alleged negligent act does not involve medical care or a
medical procedure, general rules of negligence apply. The Court said that in agreeing to care for its
residents a nursing home takes on obligations that do not implicate the malpractice law.

This decision is a watershed in decision that makes clear that nursing homes in Virginia are not necessarily protected by Virginia’s cap on malpractice damages when the specific “wrong” alleged does not arise out of medical care. This is a commonsense approach to handling the claims of the thousands of patients each year who suffer injuries due to assaults in nursing homes each year.

The case is Bennie G. Alcoy, administrator. v. Valley Nursing Homes, Inc, Supreme Court
of Virginia,
decided June 8, 2006)