Read the following:

Plaintiff Smith, a 19-year old man, was injured after he swallowed part of a chicken bone at a restaurant. He was taken to defendant Hospital, and at the direction of the examining physicians who worked for Hospital, nurse practitioner Wayne Travis (who also worked for Hospital) prepared the plaintiff for an upper gastrointestinal (UGI) endoscopy, a procedure that involves inserting a scope down the patient's throat.

During the procedure, the patient was uncooperative, and this angered Travis, who was relatively new to his job. In retaliation, Travis performed the procedure in a way that intentionally caused unnecessary pain to Smith.

At the time of the misconduct, plaintiff thought it was part of a "regular procedure," albeit "kind of weird." Later that day, however, he began to suspect Travis's actions were improper, a suspicion confirmed the next morning when he talked to his regular doctor. Travis was criminally prosecuted and pleaded no contest to a felony charge arising out of his battery of plaintiff.

In considering this case, also consider that the California Supreme Court had just recently (before deciding this case) held that a prisoner who was assaulted in police custody could sue the city that the police officers worked for in respondent superior. That is, the police officers were within the scope of their employment when they assaulted the prisoner. In your reply, please consider the following questions:

(1) On what grounds would you argue that the hospital is vicariously liable for this criminal misconduct? How would you argue the opposite? Which view is more persuasive to you?

Consider the different possible paths to liability and obstacles in the way of those paths.

(2) Can you think of anything the hospital could do to decrease its potential liability in the future, as a matter of general risk management?