A judge has approved a $15 million settlement against a doctor in a
lawsuit by the parents of an incapacitated woman who was sexually
assaulted and gave birth at a Phoenix long-term care center
By JACQUES BILLEAUD
PHOENIX -- A judge has approved a $15 million settlement against a
doctor in a lawsuit by the parents of an incapacitated woman who was
sexually assaulted and later gave birth at a Phoenix long-term care
center, marking the last of several deals to resolve legal claims over
the rape.
The settlement made on behalf of Dr. Phillip Gear, who
cared for the woman for 26 years while she lived at Hacienda Healthcare,
was deemed reasonable last week by a judge. But the insurer for Gear,
who died late last year, said in court papers it has no obligation to
pay the amount, arguing the doctor’s policy didn’t cover claims arising
from a sexual act.
It is the biggest publicly known settlement reached over the attack
on the woman, who has been in a vegetative state since childhood and
gave birth in December 2018. Her parents sued the state of Arizona, Gear
and another doctor who cared for their daughter.
The state, which
contracts with companies like Hacienda to provide services to people
with developmental disabilities, settled last summer for $7.5 million.
Dr.
Thanh Nguyen, who cared for the woman in the months before the surprise
birth, and a medical group also resolved claims against them last
summer for an undisclosed amount. And Hacienda Healthcare agreed to
settle for an undisclosed amount before the woman’s parents filed their
lawsuit in late 2019.
In declaring the $15 million settlement
reasonable, Judge Theodore Campagnolo concluded Gear’s treatment of the
woman had fallen below the standard of care by failing to diagnose her
pregnancy and regularly examine her.
The
judge said requests by the woman’s mother to have only female employees
tend to her daughter weren’t followed. Campagnolo also said evidence
that the incapacitated woman was the victim of numerous sexual assaults was undisputed in the civil case.
Kevin
Barrett, an attorney who previously represented Gear in a lawsuit filed
against the doctor by his insurer, didn’t immediately return a call
late Tuesday morning seeking comment. Gear died on Dec. 20.
The
pregnancy was discovered when an employee at the long-term care
facility was changing the garments of the then-29-year-old victim and
noticed she was in the process of delivering a child. Employees told
police that they had no idea the woman was pregnant.
The birth
triggered reviews by state agencies, highlighted safety concerns for
patients who are severely disabled or incapacitated, and prompted the
resignation of Hacienda’s chief executive.
Police have said DNA
from Nathan Sutherland, a licensed practical nurse who worked at
Hacienda, matched a sample taken from the woman’s son.
Sutherland,
who was fired after his arrest and later gave up his nursing license,
has pleaded not guilty to charges of sexual assault and abuse of a
vulnerable adult. He wasn’t a target of the lawsuit.
The victim lived at Hacienda for 26 years, until the birth of her son, who is now being cared for by her parents.
The
woman has been in a vegetative state since she was a young child.
Campagnolo wrote the cause of her condition is unclear. When she was
around 2 years old, she suffered a near drowning that deprived her brain
of oxygen, though there also was testimony that she had congenital
issues, such as seizure disorders, from shortly after her birth, the
judge wrote.
Lawyers for the family have said Hacienda missed
signs that the woman was carrying a baby, such as her weight gain and
swollen belly, and that she delivered the boy without pain medications.
Their lawsuit also alleged the state did a poor job of monitoring
Hacienda’s operations.
Campagnolo said medical records showed Gear
didn’t conduct regular examinations of the woman for at least three
years before he was transferred in September 2018.
Even though the
woman’s mother had requested that her daughter be cared for by only
women, evidence shows Sutherland and other men had cared for her over
the years, Campagnolo wrote. The judge said the woman’s mother made the
requests after she was told her daughter may have been the victim of a
sexual assault in 2002.
Phoenix police have said health
authorities at the time found some Hacienda employees had used language
of a sexual nature when speaking to patients, but they were unable to
substantiate allegations of physical abuse. Police said there was
insufficient evidence to warrant a criminal complaint against employees.
Gear’s
insurer argued Gear wasn’t the woman’s primary care physician when she
gave birth and couldn’t be held responsible for sexual assault.
“The
former fact is accurate, and the second fact is arguable," Campagnolo
wrote. "However, Dr. Gear’s liability was not limited to one sexual
assault and the birth."
Campagnolo wrote Gear had known since 2002
that there were sexual abuse allegations that could have included the
patient in question.
“The fact that the internal investigation did
not find evidence of sexual assaults would not take Dr. Gear off the
hook,” Campagnolo wrote, adding that the doctor knew the woman’s mother
had requested only female caregivers.
Megan Rose, a spokeswoman for the Arizona Department of Administration, declined to comment on the state’s settlement.
Hacienda
spokesman David Leibowitz, Nguyen’s attorney Andrew Rosenzweig, and
Robin Burgess, an attorney representing Gear’s insurer, James River
Insurance Company, didn’t return calls seeking comment.
