Chris told the Minneapolis police officer that she hadn’t been able to eat lunch with the other patients earlier that day.
“I don’t think I could, really,” she told police. “He was sitting in there.”
Chris’ memory was hazy, but what she told the nurses earlier that afternoon had brought police to the hospital. They already arrested the man from the room just around the corner from hers. Now, it was her turn to talk.
“Maybe he was just mixed up and didn’t know what he was doing,” she told police. “I didn’t say no.”
“That doesn’t matter,” the officer replied.
“I said ‘what are you doing?’ ” she explained to the officer.
“It doesn’t matter. ‘No’ has nothing to do with it,” he said. “That’s saying ‘no.’ ”
Chris, then 54, and the then-40 -year-old man, were both patients in Station 30, a locked psychiatric unit at University Medical Center, Fairview-Riverside. Chris was admitted a week earlier to undergo electroconvulsive therapy, a last resort to treat her severe depression. The therapy distorted her memories and left her physically and mentally exhausted, she said in a deposition.
The man, a convict and crack cocaine addict suffering a relapse, was voluntarily admitted to Station 30 a few days earlier when he had become suicidal. Both Chris and the man told police they barely knew each other. Though the man initially denied it, both told police they had been in Chris’ room the previous night. The man later pleaded with police that security camera footage from the hallway would show Chris slipping into his room and inviting him back to hers.
Chris said it was rape.
The cameras, hospital staff told police, simply monitored the halls. They recorded nothing.
The details that emerged in the case prompted Chris to sue the hospital in a case that would be decided in October 2009, three years later.
In his small St. Paul office, Michael Douglas, a personal injury lawyer with a law degree from Marquette University, opened his e-mail and found Chris’ story. It was the second time in a month he’d been contacted by a client alleging she had been raped in a psychiatric ward at Fairview.
“I thought, holy cow! There’s something really wrong going on there,” Douglas said.
Before she was admitted to the hospital, Chris had told her psychologist, Lynda Borchers, that she was interested in running a small business. Now Chris’s father, Don, was tending to her daily needs “because she could not remember what she was to do and when,” Borchers said in a court document.
Chris hired a different St. Paul lawyer when she was released from Fairview in June 2006, but after several months with the lawyer, she hadn’t been satisfied with progress on the case. The legal battle also took its toll on Chris, who became fearful of human contact and sunk into a deeper depression, Borchers said in the document.
Chris signed over power of attorney to Don and to her son, Jake. She and her family would spend the next two and a half years working with Douglas on the case.
In April of 2007, Chris offered to settle privately with Fairview Health Services for$750,000 for a number of grievances she said stemmed from the alleged rape.
According to Borchers, Chris lost 25 pounds in the six months following the incident and experienced physical pain, flashbacks and post-traumatic stress disorder. She also suffered relapses in the treatment of her depression, Brochers said in the document.
When Chris returned to Fairview after the incident, she spent the night on a couch near a nurse’s station because she was afraid to go back to a hospital bed away from a nurse’s supervision.
“I can’t go back there,” Chris later said of the hospital in a deposition. “It’s engraved in my mind.”
Fairview rejected the settlement, calling upon a 2006 Minnesota Department of Health investigation that found the allegation inconclusive. The hospital had not breached its duty in caring for Chris as a vulnerable adult, the investigation ruled.
The report cleared Fairview of any mandate to revise its policies in Station 30.
Chris and Douglas undertook the ensuing legal battle on the grounds of negligence, alleging that Fairview had failed to prevent a foreseeable incident.
They argued that “the lack of security at Fairview and the practice of combining vulnerable female patients with dangerous male convicts created a dangerous condition” that led to the incident.
On top of security and policy concerns at the hospital, the rape kit had indicated “forceful,” nonconsensual sex, and the alleged rapist had attempted to wash his clothes when he heard the allegations against him, according to a police report. The man was convicted of aggravated robbery in Pennsylvania and possession of crack cocaine in Pennsylvania and Florida. Douglas further alleged that the man hadn’t been adequately supervised.
Chris said electroconvulsive therapy, which she had undergone the day before the alleged assault, left her feeling groggy and distorted her perception of events. During her hospitalization she was further numbed by a cocktail of medications, and ECT and her medications made it impossible for her to consent to sex, Borchers said in the document.
Fairview countered that the man was ultimately never charged for sexual assault in the incident at Fairview and that the hospital had no duty to investigate his criminal history or reason to believe he was a threat to other patients. Chris had reported the rape the following afternoon, but only after she had undergone another round of ECT.
According to police, Chris also showered in the morning, potentially destroying evidence.
“Fairview does not dispute that it owes certain duties to its patients, although such duties do not extend to unforeseeable threats of harm, like the alleged assault at issue here,” its lawyers wrote in a legal motion. “The bottom line is that Fairview cannot be held responsible for this encounter — regardless of whether it was consensual or not — because the alleged assault was not reasonably foreseeable.”
To prove negligence on Fairview’s part, Douglas enlisted private security consultant Richard Sem, whose résumé boasted an 11-year stint as director of security at Waste Management and numerous security reviews of hospitals and psychiatric facilities.
Relying on the alleged rapist’s own police interrogation, Sem concluded that the regular interval between scheduled bed checks gave patients an expected window of “almost 30 minutes to cause harm before the next check.”
Sem said in an affidavit that the hospital should have had a stricter policy for “identifying and placing enhanced security measures upon … patients who could be a threat to other patients.”
“This rape could, more likely than not, have been prevented,” Sem wrote in the affidavit.
Fairview skewered Sem as unqualified and excoriated his testimony as purely speculative. Fairview rejected Sem’s affidavit because the case involved a secured psychiatric facility, which they claimed he couldn’t reasonably evaluate.
Hennepin County Judge Gary Larson agreed that the case required someone with “medical expertise in the diagnosis, monitoring and treatment of mood-disordered individuals,” and sided with Fairview before the case was ever tried before a jury.
The Minnesota Department of Health has investigated University Medical Center, Fairview-Riverside twice in 2009 for potential missteps in supervision that may have led to sexual misconduct between inpatient minors. Neither of these alleged incidents occurred in Station 30.
The department ultimately couldn’t substantiate claims made in the complaints and ruled that supervision wasn’t a factor.
In its investigation of Chris’ case, the Department of Health examined only Fairview’s actions under federal regulations and
policy under its participation in Medicare. The department left the issue of sexual contact between patients and the patients’ ability to give consent for sex to the hospital and police.
“Is it a crime to have sex depending upon who you are? That certainly would have been handled by the police department, not by us,” said Kris Lohrke, who co-conducted the investigation into Chris’ case.
Officially, the hospital issued all patients in Station 30 a handbook explaining that they were not allowed to visit other patient’s rooms or have sexual contact with others.
In a legal deposition taken in February of 2009, Patricia Murphy, program director of adult mental health at Fairview, said staff at the Station 30 nurse’s station had no direct line of sight to the end of the 100-foot hall where Chris was housed at the time of the incident. The closed-circuit cameras, she said, went unwatched when staff were called away or became distracted. She also testified that the hospital had no official policy for staff in Station 30 to monitor the cameras.
Murphy said patients were unable to lock their own doors, and Nanete Grady, a former Fairview employee, said hospital staff were aware of past instances of patients entering other patients’ rooms against hospital policy.
Incoming patients were interviewed and asked if they had criminal histories or chemical dependencies, but t hey were not screened based on this information, Murphy said.
“It’s not a prison environment,” Fairview Director of Security Linda Fite said in a December 2008 deposition.
Station 30’s closed-circuit cameras were outfitted with a recording system in 2007, Fite said.
Murphy said remodeling would make Section 30 safer by placing the nurse’s station in the center of the unit. She said changes in policy or layout could be made in response to incidents occurring in the hospital but said the remodeling and other changes were not a reaction to Chris’ case.
In response to the case, Fairview officials offered no comment on any of its security or staffing policies, past or present.
On Wednesday, Fairview officially filed to make Chris legally responsible for repaying the hospital more than $4,000 for documents and court filing fees they incurred in their defense.
Chris’ family says it will appeal the judge’s decision in favor of Fairview and hopes to have the case tried before a jury.
“She should have a day in court,” said Jake, Chris’ son. “Let a jury, let some human beings decide this thing. Let some people hear the facts.”
Douglas said that Chris would have a “very strong” case on appeal, but her family is searching for a new lawyer because Douglas decided in March that if Chris’ suit were unsuccessful he would quit his practice.
The case is the last in a string of “shoo-in ” suits that Douglas said have been dismissed in surprise decisions. The cases made his practice unsustainable and fruitless, he said.
“When people are walking into my office, and I’m telling them I can get them justice, and I’m made into a liar by someone else, a judge throws the case out — that’s kind of disheartening,” Douglas said.
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