In 2001 Houston Doctor Jeffrey Klem allegedly molested two young femalepatients. Recently Dr. Klem was sentenced to five years deferred adjudicationafter a The Harris County District Attorneys office agreed to a plea bargainwhereby the charges against Klem were reduced to Injury to a Child.AdditionallyKlem must write a letter of apology to the two girls and pay a rather smallfine.
You may be wondering why I am talking about a criminal case on a personalinjury blog. In the spirit of educating the public on some of the more complexaspects of civil law I feel this story illustrates an example where many may feelthat the punishment in criminal court was not severe enough. Often times whenthe victims of an assault are not satisfied with the outcome in criminal courtthey turn to civil court as another option.
In a case such as this determining the basis of the civil suit is a trickybalancing act that most non-attorneys have a hard time making sense of. On onehand you have the obvious option of suing the doctor himself as anindividual for the assault. This would be an easy argument to make especiallygiven the outcome of the criminal case but the possibility of recovering anydamages (making any money for the victim) rests entirely on whether or not thedoctor has any non-judgment proof assets. Effectively some assets such as thedoctors home and other similar personal property are what we consider to bejudgment proof; which means that you cannot sue them and expectthem to pay you with those assets. In other words if all a doctor owns is amillion dollar house and has $10000 in his checking account you would only beable to collect from his $10000. Most people consider doctors to be well paidand have a hard time imagining that a doctor does not have appreciable assetsbut you would be surprised. Many doctors spend a disproportionate amount oftheir income on purchasing a home as it is a safe harbor for their wealth andthey are left with little liquid assets. Not to mention this particular doctorhas probably spent a significant amount of his personal income on defending hiscriminal case.
On the flip side you can sue the doctor citing that the alleged sexualassault is a form of medical malpractice but there are two problems to thisapproach.
1) If the damages are high in value (meaning that you are suing for a highdollar amount) then the damages may be capped due to the tort reform measuresadopted by The State of Texas in the 90s which would seriously affect yourchances of getting a fair recovery.
2) The other problem with this approach is that an assault is a deliberatetort. As such most medical malpractice insurance policies will not cover theevent. This is the equivalent of the difference between when a car insurancecompany chooses to cover the damages when one of their insured accidentallyhurts someone with their car vs. NOT covering the damages when their insureddeliberately uses their car as a weapon to hurt someone.
A third option for a civil suit would be the possibility of suing thecorporate entity that the doctor is a part of for negligent hiring or someother similar cause of action. This of course rests on the possibility thatthe company is set up in such a way that the doctor is more or less anemployee.
Naturally there could be a forth option and a fifth option so on and soforth. The best option would be decided by the plaintiffs attorney once they doa little investigative work and get a feel for the situation. This quiteclearly illustrates the point that in order to have any type of success withsuch a case you need an attorney that has the experience to guide your casedown the proper path and to avoid the common pitfalls.
Its my understanding that the family of one of the girls who was assaultedis filing a civil suit against the doctor in one from or another. I wish themand their attorney the best of luck in this case.
