A judge is allowing a medical malpractice lawsuit to proceed against a nurse practitioner accused of fondling the breast of a female student at Craig County High School during a sports physical.
In a written opinion issued this week, U.S. District Judge Michael Urbanski denied a motion by the government to dismiss the case.
The clinic where the incident occurred operates under the umbrella of the West Virginia-based Monroe Health Center, which receives federal funds to provide health care in underserved areas.
The now-former student claims in her lawsuit that she went to the clinic in 2018 for a sports physical, which she had done many times before.
Unlike during previous visits, a man who identified himself as a doctor greeted the student and took her to his office, where a nurse was not present, according to the lawsuit.
The man, who was later identified as a nurse practitioner and not a doctor, placed his stethoscope under the student’s bra and massaged her breast several times, the lawsuit states. He is also accused of running his fingers up and down her spine “for an unusually long amount of time.”
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Demanding compensation for the student’s trauma and emotional distress, the lawsuit seeks to hold the United States responsible in its role as operator of the Craig County Wellness Center and employer of the nurse practitioner.
The man is not being identified by The Roanoke Times because he was not named as a defendant in the civil action or been charged with a criminal offense. He no longer works at the center, which also is not named as a defendant.
In asking that the lawsuit be dismissed, the government argued that — even assuming the allegations are true — the nurse practitioner was not acting within the scope of his employment and therefore there are insufficient grounds for a medical malpractice claim.
The student’s allegations are more suited for a sexual assault charge than a claim of faulty medical care, the government says.
But Urbanski ruled there was not enough evidence to merit dismissing the case at this stage. Because physically touching a patient was an allowed part of the procedure, the examiner’s “alleged misconduct was intertwined with his employment responsibilities,” the 27-page opinion stated.
While keeping that part of the case alive, Urbanski granted the government’s motion to dismiss a second claim that the clinic was at fault for continuing to employ the nurse practitioner after getting complaints from other patients.
“We respect the Court’s decision and look forward to moving ahead with this case,” the former student’s attorney, John Fishwick of Roanoke, said.