Immunity law works against victim of alleged rape in hospital

Slip and fall at a hospital in Texas and you might expect to be compensated for your injuries. Get raped by a doc- tor while sedated at the county hospital one night, and you get nothing.

Nothing for the trauma. Nothing for the days you’re too depressed to work. Nothing for the lifetime of therapy bills.

That’s the lesson a young mother learned Friday afternoon as a Harris County civil judge ruled that neither the hospital, Ben Taub, nor the doctor’s employer at the time, Baylor College of Medicine, could be held liable for the as- sault Laura says she endured while hospitalized for an acute asthma attack in 2013.

The decision came quietly, expectedly in a brief hearing in which no one — not the plaintiff’s attorney, not the judge, not even Ebon Swofford, the attorney who succeeded in defending Ben Taub parent Harris Health — seemed to take much pleasure in doing their jobs.

“It was a hard argument to make,” Swofford, an assistant county attorney, acknowledged to me afterward.

But she did her job well. She followed the law. She got the desired result for her client.

Is it the desired outcome for any decent Texan with a lick of common sense? I don’t think so.

I started writing about Laura’s case in October of last year, after Houston police charged Dr. Shafeeq Sheikh with sexual assault, citing DNA evidence, surveillance video and scanner records showing Sheikh used his hospital ID card 12 times to access Laura’s floor the night of the alleged attack.

Laura says the doctor came into her darkened hospital room several times, at first fondling her and then raping her in the bed when she was too sedated to fight back. She says she repeatedly pressed the call button for help, but her attorney says it was unplugged, apparently by Sheikh.

Laura sued the doctor, Ben Taub and Baylor for, among

other things, negligence.

The doctor, who has maintained his innocence, awaits a criminal trial. His state medical license was suspended in 2015, and he was quickly fired by Houston Methodist Hospital, where he had spent the past year as an internist. Cloak of immunity

But he got off the hook on the civil side because of a provision in the 2003 tort reform bill that allows doctors working in government institutions to be considered public servants.

Baylor, a private hospital, is considered a governmental entity because it staffs Ben Taub, a public, county-run hospital.

Before 2003, a doctor at a government hospital could be held liable for his or her actions, said veteran Houston personal injury attorney Jim Perdue Jr. After 2003, that doctor is swaddled in the government’s cloak of immunity.

In Laura’s case, that cloak protected an alleged rapist.

“This is absolutely the prime example of the worst outcome they could have never foreseen,” Perdue says.

Soon after the lawsuit was filed, Baylor cited a provision in the “tort claims” chapter of the Civil Practice and Remedies Code that says if a governmental unit and its employee are both sued, the employee shall “immediately” be dismissed from the lawsuit.

Sheikh was dismissed. And that left only the hospitals to sue. And they were immune. Uphill battle

Mark Weycer, Laura’s attorney, knew he was signing up for an uphill battle at best, a fool’s errand at worst.

Texas is a limitedgovernment liability state, meaning government entities enjoy almost absolute immunity from tort claims.

There are narrow exceptions, including the waiver Weycer argued for in cases in which the injury is caused by the use of tangible property. Weycer argued the call-button qualified, but the county attorney maintained it did not because it didn’t directly cause the alleged assault.

“It’s harsh, and I know it’s very restrictive,” Judge Larry Weiman said as he ruled for the hospitals.

He said the law, as it stands, was on their side. But he suggested the unique facts of the case might be enough to prompt higher courts to reconsider current interpretation of the law on appeal.

“Maybe they’ll carve out some exemption because the nature of this particular tort is very offensive and shocking and horrific to everyone,” Weiman said.

At this point, though, Laura’s attorney isn’t sure he’ll appeal. It likely would prove another futile exercise, he said. Tort reform needed

The change, it seems, needs to come at the legislative level. The former lawmaker who sponsored the tort reform legislation that paved the way for this outcome, state Rep. Joe Nixon, told me he never intended to give immunity to a doctor accused of rape.

I would hope not. But now we need some brave lawmaker to step forward and undo the error, or at least carve out an exception in heinous cases such as Laura’s. While they’re at it, lawmakers also should revisit that confusing, arbitrary tangible property provision.

As it stands, the law is about protecting big governmental institutions but not individual victims like Laura.

“It’s scary,” her attorney said. “When a person is traumatized and injured as much as she was, she should be entitled to compensation.” Sobering news

He intends to talk to legislators about changing the law and hopes the case made people aware of the problem and started a conversation.

“Hopefully it shocks the conscience of enough people to make some phone calls,” he said.

As he walked down the hall to the elevator, he checked his texts for Laura’s response to the news. He had prepared her, but it wasn’t easy telling her she’d officially lost. She responded by thanking him for all he’d done.

And she signed off with crying emojis.