Victoria

Does the arbitration provision in a health service agreement, which covers any claim “arising from rendition or failure to render services,” apply to a claim against the health care provider for negligent employment of an orderly accused of sexually assaulting a patient?

I.

Petitioner, Imelda Victoria, was admitted to a hospital owned by real party in interest, Kaiser Foundation Hospitals (hereafter Kaiser), for brain surgery in August of 1984. According to the allegations of petitioner’s complaint, she was repeatedly sexually assaulted, raped and sodomized during her recovery from the surgery by real party in interest, Haynes, a hospital orderly.

Petitioner sued both the alleged perpetrator and Kaiser. Her complaint stated two causes of action against Kaiser, one for the negligent infliction of emotional distress and the other for the negligent selection, employment, retention and supervision of the employee who committed the alleged assaults. 1 Specifically, petitioner contends that Kaiser knew that the employee had sexually assaulted female patients on at least two prior occasions.

*738 Kaiser answered the complaint and moved to stay the action and compel…

I respectfully dissent. Undoubtedly, the underlying conduct allegedly committed by Kaiser Foundation Hospitals’ (hereinafter Kaiser) employee is shocking and reprehensible. The causes of action we confront here, however, do not concern the employee’s liability, or whether Kaiser is liable under principles of vicarious liability for the alleged conduct of the employee. Instead, we are concerned only with whether Kaiser is liable for its own primary affirmative negligent conduct. As to those particular allegations we must determine not if plaintiff has a right to proceed, but rather in which forum she must prosecute her claims against Kaiser.

Plaintiff’s relevant causes of action against Kaiser claim that it breached its duty to her “by failing to exercise reasonable care in the selection, *748 employment, retention and supervision of [the employee] . . . [and that] Kaiser . . . knew or in the exercise of reasonable care should have known, that [the employee] . . . had a prior history of criminal conduct that made him unfit for employment in any position in which he would be in contact with patients, including the plaintiff.”

Further, she alleges that “Kaiser . . . knew that [the…

Thelen, Marrin, Johnson & Bridges, Curtis A. Cole and Mary A. Barnett for Real Parties in Interest.

OPINION

BIRD, C.J.

Does the arbitration provision in a health service agreement, which covers any claim "arising from rendition or failure to render services," apply to a claim against the health care provider for negligent employment of an orderly accused of sexually assaulting a patient?

Petitioner, Imelda Victoria, was admitted to a hospital owned by real party in interest, Kaiser Foundation Hospitals (hereafter Kaiser), for brain surgery in August of 1984. According to the allegations of petitioner's complaint, she was repeatedly sexually assaulted, raped and sodomized during her recovery from the surgery by real party in interest, Haynes, a hospital orderly.

Petitioner sued both the alleged perpetrator and Kaiser. Her complaint stated two causes of action against Kaiser, one for the negligent infliction of emotional distress and the other for the negligent selection, employment, retention and supervision of the employee who committed the alleged assaults. [1] Specifically, petitioner contends that Kaiser knew that the employee had sexually assaulted female patients on at…