Copithorne v. FRAMINGHAM UNION HOSPITAL.

Hennessey, C.J.

The plaintiff brought an action in the Superior Court seeking damages for physical and emotional injuries suffered when her physician, Murray H. Helfant, drugged and raped her.1 Her complaint included one count against Helfant and another against the hospital where she was employed as a technologist and Helfant was a visiting staff physician. Copithome alleged that the hospital was negligent in continuing Helfant’s staff privileges after it knew or should have known that he “posed a risk of harm to women.” The sole issue before us is the propriety of the grant of summary judgment in favor of the hospital. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). Because we conclude that a jury reasonably could find that the hospital’s negligence proximately caused Copithome’s injuries, we reverse and remand this case to the Superior Court.

For purposes of our review of the grant of summary judgment in favor of the hospital, we assume the truth of the facts set forth in Copithome’s affidavits or otherwise asserted in answers to interrogatories. See, e.g., Coveney v. President of the College of the Holy Cross, 388 Mass. 16, 17 (1983), and case cited. We summarize the facts so shown. At the time of the incident, Helfant was a practicing neurosurgeon and a visiting staff member of the hospital. He was not a hospital employee, but had been affiliated with the hospital for about seventeen years, having been reappointed to the visiting staff each year since his initial appointment. Copithome was a hospital employee. In the course of her employment, she injured her back, and, aware of Helfant’s reputation within the hospital as a good neurosurgeon and a specialist in back injuries, she sought his professional assistance. In the course of treating her, Helfant made a house call to Copithome’s apartment, where he com*862mitted the dragging and rape for which he was convicted and which caused the injuries for which Copithome seeks compensation.

For purposes of his consideration of the hospital’s motion for summary judgment, the judge below assumed, without deciding, that the hospital had been negligent in retaining Helfant on its staff. We think that a jury reasonably could find that the hospital owed a duty of care to Copithome, as an employee who, in deciding to enter a doctor-patient relationship with Helfant, reasonably relied on Helfant’s good standing and reputation within the hospital community, and that the hospital violated this duty by failing to take sufficient action in response to previous allegations of Helfant’s wrongdoing.

We therefore turn to the proximate cause issue on which the judge based his ruling. The judge ruled that, as a matter of law, the hospital’s negligence could not be the proximate cause of Copithome’s injuries because “[t]he independent misdeeds of Helfant, who was not at the time acting on the Hospital’s behalf, broke the causal chain. Moreover . . . the Hospital could not reasonably foresee that he would rape someone off the Hospital premises. Even if it could, we cannot say that the withdrawal of Hospital privileges would have prevented the rape.” If any one of these rulings was correct, then the judge properly granted the hospital’s motion for summary judgment. We think, however, that all the rulings were erroneous.

The first two rulings really advance only a single proposition, and the issue as to each is the foreseeability of Helfant’s act. The intervening criminal act of a third party is a superseding cause which breaks the chain of proximate causation only where the original wrongdoer reasonably could not have foreseen such act. See, e.g., Mullins v. Pine Manor College, 389 Mass. 47, 62-63 (1983), and cases cited. Therefore, our consideration of the propriety of these rulings reduces to a single inquiry into the foreseeability of Helfant’s act.

Copithome asserted that, at the time of the incident, the hospital had received actual notice of at least two previous incidents involving allegations that Helfant had sexually assaulted hospital patients. The first was reported to the hospital *863by one Kathleen. Kathleen met with James W. Walckner, the hospital’s executive vice president, and Dr. John Byrne, its chief of surgery, and also submitted a handwritten memorandum detailing her allegations. She informed the hospital that she had been admitted to the hospital for severe back pain and referred to Dr. Helfant for treatment. While she was in the hospital, Helfant more than once came in late at night, sat at her bedside, and engaged in “close physical contact with [her], consisting primarily of stroking [her] face, neck and chest .... The contact carried sexual innuendo[e]s and was entirely unauthorized.” After she was discharged from the hospital, she went to Helfant’s office, where Helfant asked that she enter his examining room, remove her clothing, and don a patient gown. After examining her back, he turned off the lights, removed her patient gown, and caressed.her body. On another occasion, she was at home when she developed severe muscle spasms. Her roommate called Helfant, who came to the apartment and examined Kathleen’s back. Indicating that her muscles were still tense, he injected her with ten milligrams of the drug Valium.2 He then turned off the lights in her bedroom, sat down on her bed, partially undressed her, and proceeded to caress her body. The next day, Kathleen’s roommate told her that, after leaving Kathleen’s bedroom, Helfant tried to seduce the roommate, who asked him to leave.

In her memorandum to Walckner and Dr. Byrne, Kathleen indicated that she had not resisted Helfant’s advances, and that she had mixed feelings about her experiences with him. Although she did not want to bring legal charges against Helfant, she wanted to be assigned to a different neurosurgeon, and “to discuss if any similar charges have arisen against Dr. Helfant”; and she wanted the hospital administration and the medical profession’s board of ethics to be made aware of the situation. She stated that Helfant’s actions had damaged her significantly, although not irretrievably, “but what Dr. Helfant could be *864doing to other female patients who have different needs, priorities or senses of self is the most basic and fundamental issue that should be addressed [and] dealt with accordingly.” She filed a complaint against Helfant with the Board of Registration in Medicine, and sent a copy of the complaint to the hospital.

In response to Copithome’s interrogatories, the hospital stated that it had taken action with regard to Kathleen’s allegations. After meeting with Kathleen, Dr. Byme met with Helfant, who denied any wrongdoing. Dr. Byme then instructed Helfant to have a chaperone present in the future when visiting female patients in the hospital. Based on Helfant’s “excellent record” at the hospital, Dr. Byme “felt that no further action was necessary as it was his opinion that he had no need to worry about Dr. Helfant harming a patient. In effect, Dr. Helfant was given an oral warning.” Dr. Byme also told the nurses on the floor to “keep an eye on Dr. Helfant.” Walckner “inquired of hospital personnel, through department heads at management meetings, if there was any awareness of sexual harassment at the hospital in general involving either employees or patients.” Following receipt of a copy of Kathleen’s letter to the Board of Registration in Medicine, Walckner wrote to the board, but received no response, and took no further action.

It also was shown that Walckner’s inquiry as to hospital personnel’s awareness of other instances of sexual harassment at the hospital brought to his attention another incident involving allegations of sexual assault by Helfant. This incident was reported in a nursing record, and repeated in an intra-hospital memorandum, and involved a female patient who for reasons of confidentiality was referred to only as “Jane Doe.” According to these records, Doe used her call button to summon a nurse. The nurse found her “crying and upset.” Doe asked the nurse, “What kind of a Doctor is Dr. Helfant?” She asked the nurse if Helfant was supposed to examine parts of her body, “like my breasts, or move my leg over to the other side of the bed. His fingers were doing only what my boyfriend should do.” The nurse reported this incident to her supervisor, who “felt fairly confident” that she in turn had called the hospital’s *865administrator-on-call. The intra-hospital memorandum said that the nurse felt that Doe was “lucid and sincere, credible, at the time she reported the alleged incident.”

Copithome also stated that, at the time of the incident, the hospital knew or should have known of at least one other previous incident, this one involving an allegation that Helfant sexually assaulted a patient by the name of Linda. After Linda’s discharge from the hospital, she told her sister Jane that, while she was in the hospital, Helfant had kissed her and put his tongue in her mouth, and that, on four separate occasions, “Helfant had taken Linda out of her fourth floor ward room late at night and brought her to a room on the first floor of the hospital,” where he locked the door and raped her, later returning her to the fourth floor. Jane spoke to a night nurse at the hospital about these incidents. In her affidavit, she stated that she did not remember everything she told the nurse, but that she specifically remembered that she did at least complain about the fact that Helfant had been kissing Linda. The incidents involving Linda were the subject of a criminal complaint brought against Helfant. In a jury-waived trial, Helfant was found not guilty of these charges.

The facts asserted, if proved, would justify a jury’s finding that the risk of injury to Copithome was within the range of foreseeable consequences of the hospital’s negligence in continuing Helfant’s staff privileges. Where the hospital had received actual notice of allegations that Helfant had sexually assaulted patients, both on the hospital premises and off the premises in his office and in a patient’s home, and yet took only the limited measures indicated, it was not unforeseeable that Helfant would continue to act in a consistent, if not worse, manner. Since there is a substantial question of fact as to whether the hospital’s negligence proximately caused Copithome’s injuries, the judge erred in mling that, as a matter of law, Helfant’s act was unforeseeable and so constituted a superseding cause relieving the hospital of liability for its negligence.

The judge also erred in mling that, as a matter of law, the withdrawal of Helfant’s staff privileges would not have prevented *866his drugging and raping Copithome. Copithome asserted that, by reason of her employment, she was aware of Helfant’s good reputation within the hospital, and that she relied on this reputation in entering into a doctor-patient relationship with him; that, as an employee, any change in Helfant’s status would have become known to her; and that, if she had had any reason to know that the hospital had suspended Helfant’s staff privileges or imposed any disciplinary sanctions on him, she would not have entered into a doctor-patient relationship with him. A different question would be presented if a member of the general public claimed that the hospital was liable for similar harm simply because Helfant was a staff member and should not have been. But Copithome’s assertions amply demonstrate that there is a question of material fact as to whether the hospital’s negligence in failing to take sufficient action with regard to previous allegations of Helfant’s wrongdoing proximately caused Copithome’s injuries.

We therefore reverse the grant of summary judgment to the defendant, and remand the case to the Superior Court for further proceedings.

So ordered.

Helfant was convicted in 1985 of rape and of drugging a person for unlawful sexual intercourse. On appeal, we affirmed the judgments of conviction. Commonwealth v. Helfant, 398 Mass. 214 (1986).

Helfant also administered an injection of five to ten milligrams of Valium to Copithome. It was this injection which was the basis of his conviction for drugging a person for unlawful sexual intercourse. See Helfant, supra at 219.