Regulars on this blog are familiar with the doctrine of res ipsa loquitur (or “the thing speaks for itself”). One twisted case near Phoenix, Arizona would certainly seem to fit that definition after a patient in a vegetative state gave birth. AZ Family reported that he victim is a member of the San Carlos Apache Tribe who nearly drowned 10 years ago. Police or the company may seek DNA samples from all male employees at Hacienda HealthCare. In this case, a positive match would by definition confirm rape given the non-consensual context.
The police served a warrant for the DNA samples. The eventual criminal charge would include a likely assortment of charges including aggravated rape. The Arizona law covers any individual who knowingly, intentionally, or recklessly acted to insult, provoke, injure or otherwise cause physical harm to another person and they engage in one or more of various conditions including serious injury or physically restrain or impair the victim’s ability to resist the assault. While the person was previously in a vegetative state, the rapist used that pre-existing condition to commit the rape. Moreover, there is a condition covering entry into a private residence with the intent to assault someone. There are also crimes of abusing vulnerable or disabled individuals. The result hopefully will be a long time in jail for the culprit.
On its website, Hacienda HealthCare says it provides care for “medically fragile and chronically ill infants, children, teens, and young adults as well as those with intellectual and developmental disabilities”.
Obviously, there is also huge potential civil liability for assault, battery, negligence, and infliction of emotional distress, including claims against the facility.
Adding to the negligence is the fact that the facility staff did not even know the woman was pregnant until she was giving birth.
A warrant for DNA for any and all males could be a matter for a legal challenge. We have seen such warrants used in England and other countries for rapists in geographic areas. In the United States, there is supposed to be individualized probable cause. This however is a much more confined group with an obvious tie to the victim and scene of the crime during the critical period. Ultimately, the police may be fine to risk challenge to simply see who refuses the test.
The company could also demand the samples as a condition of employment for public safety purposes. That would lead to other challenges but again could, in the process, reduce the list of suspects.
The company could argue that the criminal act of an employee is a superseding intervening act that cuts off its liability as a matter of proximate cause. However, there remains the negligence in hiring, supervision, and other steps that allowed such a horrific situation to develop. The company now requires that no male employee can be alone in a room with a female patient without having a female employee present.