Virginia Lawyers Weekly VA Lawyers Weekly
A man assaulted by another patient at a hospital waiting room is expected to take his case against the hospital to trial this week.
Gordey Denisenko blames Sentara Norfolk General Hospital for his injuries in 2015 at the hands of a man who had been involved in seven prior incidents of violent or abusive behavior at the hospital.
The hospital – since it knew of the other man’s propensity for violence – had a duty to protect Denisenko, his lawsuit alleged. Norfolk Circuit Judge Mary Jane Hall agreed as to that duty in a Sept. 28 opinion, overruling the hospital’s demurrer. A two-day trial was set to start Oct. 10.
Hall’s decision is Denisenko v. Sentara Hospitals (VLW 018-8-088).
Pattern of violence
While he is not a party to the lawsuit, Joseph Dauria plays a major role in the dispute. Dauria racked up a nearly five-year string of incidents at the hospital, including three alleged assaults, before his encounter with Denisenko.
One incident, in February of 2015, is almost identical to the attack on Denisenko, said Denisenko’s lawyer, Michael L. Goodove of Norfolk. In the February incident, Dauria assaulted another hospital patient who was sitting in the waiting room of the emergency department.
In other incidents, Dauria assaulted and battered a patron on the hospital premises, assaulted a hospital employee and attempted to force his way in after being escorted off the premises.
Sudden attack
Denisenko claims he became a victim on Oct. 9, 2015. The 84-year-old Denisenko was at the Norfolk hospital for a blood pressure issue, Goodove said.
Dauria arrived, registered as a patient, and was sent to the emergency department’s waiting room, the lawsuit said. Without provocation, Dauria “suddenly attacked” Denisenko, “striking him in the head and face,” according to the summary in Hall’s opinion.
“The attack happened within a few feet of a uniformed security officer, who immediately intervened,” Hall wrote.
No duty to control
The complaint alleged that “Sentara knew of Mr. Dauria’s propensities and had a duty either to control him or to protect Plaintiff from him,” Hall said.
Hall ruled in favor of the hospital on the first alleged duty. She said the hospital had no duty to control Dauria. However, the judge ruled that the hospital had a duty to protect Denisenko from foreseeable harm.
The allegations fell short on the duty to control because the hospital had not “taken charge” of Dauria, Hall said. “While Plaintiff alleges that Joseph Dauria had been admitted to Defendant’s emergency room as a registered patient and had been seen by the triage nurse, Joseph Dauria was still sitting in the waiting room when he attacked Plaintiff. He had not been seen by a doctor,” Hall said.
“The facts alleged here do not approach that required showing that Sentara had taken charge of Joseph Dauria on the night in question,” the judge said.
Foreseeability is standard
Unlike in the Sept. 27 decision from the Supreme Court of Virginia in Terry v. Irish Fleet Inc. (VLW 018-6-067) [see page one], Denisenko’s claims relied on a “special relationship” to establish a duty to protect from criminal assault. The Terry decision addressed a voluntarily assumed duty.
Hall rejected the hospital’s contention that a “special relationship” duty was impossible because of the lack of foreseeability of the attack on Denisenko.
The touchstone case in Denisenko was a 2001 Supreme Court ruling in Thompson v. Skate America Inc. The defendant skating rink had specific knowledge of a person’s propensity for violence and had intervened in the past to control that person’s behavior.
“The Court interprets Thompson as modifying the prior ‘imminent probability of harm’ requirement where sufficient facts show that an assault was foreseeable,” Hall wrote. Even though Denisenko’s allegations failed to establish an imminent probability of harm, the proper standard was foreseeability, Hall said.
The hospital argued “forcefully” that it could not simply ban Dauria from the premises. Federal law requires hospitals to see everyone who shows up at an emergency room seeking medical attention.
But Hall said she could not distinguish Thompson and ruled that Sentara had a duty to protect Denisenko, despite the absence of a specific threat to him.
Hall declined to address what action the hospital should have taken, leaving that for the jury.
“It is entirely possible that Sentara fully discharged its duty to protect those in the waiting room from potentially violent folks like Mr. Dauria by employing a policeman to stand in the waiting room and respond immediately to any trouble. That decision is not before the Court on demurrer,” Hall wrote.
Goodove pointed to the list of prior Dauria incidents as the foundation of his case.
“They knew who he was. They knew he was there. They had specific information about the prior incidents. They returned him to the waiting room for 42 minutes before he violently assaulted my client,” Goodove said.
Goodove said Oct. 3 that the hospital had made no offers, even after Hall’s decision.
The hospital is represented by A. William Charters of Norfolk. He was not available for comment.
