The first lawsuit blamed OrthoNebraska for failing to stop a doctor accused of touching an unconscious woman’s genitals during hip surgery.

The second lawsuit blamed Nebraska Medicine for failing to stop the same doctor, Mark Dietrich, from allegedly touching a Florida woman’s genitals during knee surgery.

Now a third lawsuit, filed on behalf of a then-18-year-old Grand Island woman, blames both hospitals — saying they either failed to communicate with each other or failed to follow up on reported observations of Dietrich touching patients’ private parts.

That lawsuit, filed in Douglas County District Court last week, alleges that Omaha police told the Grand Island woman and her parents that two OrthoNebraska nurses saw Dietrich’s ungloved hand under a blanket covering her private parts.

The alleged contact came during a Nov. 9, 2016, surgery to repair a torn labrum in the right hip of the teenager. Despite nurses witnessing contact, the lawsuit alleges, OrthoNebraska allowed Dietrich to operate on other patients on subsequent Wednesdays into December 2016.

The lawsuit goes a step further, alleging that even after OrthoNebraska suspended Dietrich’s privileges a month later, another Omaha hospital, the Nebraska Medical Center, allowed Dietrich to perform a second surgery on the other hip of the 18-year-old girl. According to the lawsuit, that surgery occurred just six weeks after nurses saw touching of the 18-year-old.

A Nebraska Medical Center staff member was placed in the operating room for that Dec. 23, 2016, surgery, the new lawsuit says. No touching of her groin occurred during the second surgery. But months later, her parents expressed outrage.

“NMC did not tell S.F. (the 18-year-old) or her parents that it had authorized a surgeon to perform S.F.’s (second) hip surgery even though it knew that surgeon was under investigation for sexually assaulting anesthetized patients,” Maren Chaloupka, a Scottsbluff attorney, wrote in the lawsuit. “Had NMC informed S.F. and her parents of this fact, there is zero chance that S.F. and her parents would have consented to Dietrich coming within a country mile of S.F.”

Dietrich “adamantly denies” he touched patients inappropriately, his attorney has said. Robert Mooney declined Friday to further address the allegations against the now-unemployed doctor. Mooney has written in court documents that any touching near patients could have occurred while a post was placed against their pelvis to prevent a patient’s anesthetized body from sliding off of the surgical table.

“All acts he took ... were directly related to the surgery he was performing,” Mooney wrote in one case.

Nebraska Medicine again declined to answer questions about its response. A spokesman previously has said: “We are aware of allegations involving one of our former physicians. Because of pending litigation, we cannot talk further about the circumstances. Nebraska Medicine holds its physicians and staff to the highest professional standards and the safety of our patients is our top priority.”

OrthoNebraska defended its actions in a statement Friday. Spokeswoman Katie Benak said Dietrich was “not an OrthoNebraska physician” but had privileges to perform surgeries there and elsewhere in Omaha.

“As soon as we established reasonable cause to believe that inappropriate actions may have occurred, we quickly acted to notify law enforcement as well as the physician’s employer,” Benak said. “In addition, on the same day, the physician’s ability to care for patients at OrthoNebraska was immediately suspended and later expired.”

The following account and timeline comes from the Grand Island woman’s lawsuit, two previous lawsuits against Dietrich and a recording of an Omaha police detective’s interview with one of Dietrich’s patients:

Dietrich, who has been a surgeon since about 2007, performed arthroscopic surgeries on hips, knees and shoulders. In such hip surgeries, a physician works through a quarter-sized hole in the outside of the hip, often to repair ligaments, shave bone or otherwise clean up the joint.

On Nov. 9, 2016, the Grand Island woman went in for surgery on a damaged hip ligament. The plan: She would have surgery on her right hip. Six weeks later, she would have surgery on a damaged ligament in her left hip.

During the surgery, two nurses saw Dietrich with an ungloved hand under a surgical blanket covering the woman’s groin, according to an Omaha police account cited by Chaloupka in the latest lawsuit.

Dietrich continued to operate on patients at OrthoNebraska on Nov. 16 and 30, 2016 — and hospital personnel noticed his ungloved hand under blankets near two other female patients’ groins.

Then on Dec. 7, 2016, four weeks after the Grand Island woman’s first surgery, Omaha resident Deborah Lowndes went in for surgery on her hip. OrthoNebraska placed an observer in the room, specifically to watch Dietrich.

That observer saw him place an ungloved hand on Lowndes’ vagina for two to three seconds, Omaha Police Detective Chad Kavars told Lowndes during a tape-recorded interview.

The observer also saw Dietrich touch her breasts, Kavars told Lowndes.

Dec. 23, 2016: Dietrich performed the second surgery on the Grand Island woman, this time at the Nebraska Medical Center. Nebraska Medicine placed an observer in the operating room to watch him. No untoward behavior happened, but the Grand Island woman said the surgery did not go well and did not alleviate her hip problems.

Spring 2017: Detective Kavars turned over his investigation to prosecutors. Because he couldn’t prove penetration, any improper touching would be a misdemeanor. The decision on charges was handed over to Omaha City Prosecutor Matt Kuhse.

May 10, 2017: Kuhse declined to charge Dietrich. When The World-Herald asked him why last month, Kuhse said he couldn’t reveal the reasons. However, Omaha police told Lowndes that Kuhse said he couldn’t prove any touching was for sexual gratification.

May 30, 2017: Lowndes filed a lawsuit against Dietrich. She later criticized OrthoNebraska for knowing of concerns about Dietrich but nonetheless using her as “bait.”

Dec. 1, 2017: A Florida woman, in her 20s, visited the Nebraska Medical Center to have Dietrich perform arthroscopic surgery on a torn knee ligament. A Nebraska Medical Center staff member again was in the operating room, assigned to specifically watch Dietrich. That observer saw Dietrich touch the woman’s private parts with an ungloved hand, according to the Florida’s woman’s federal lawsuit.

Despite that, the Florida woman’s lawsuit alleges, Nebraska Medicine did not suspend or revoke Dietrich’s privileges until October 2018.

The alleged Dec. 1, 2017, abuse came a year after OrthoNebraska staffers said they saw Dietrich touch Lowndes twice and the Grand Island woman once. It occurred six months after Kuhse declined to file charges against Dietrich.

The latest lawsuit filed by Chaloupka alleges both OrthoNebraska and Nebraska Medicine knew that “Dietrich represented a threat to anesthetized patients” yet didn’t prevent him from operating.

Chaloupka wrote in the lawsuit that the Grand Island woman’s parents contacted OrthoNebraska officials to “ask why (OrthoNebraska) did not notify them of this investigation before S.F. submitted to her second surgical procedure at NMC ... so that at least S.F. could avoid a second helpless encounter with Dietrich.”

OrthoNebraska officials “replied that it was not obligated to let S.F. or her parents know because the investigation was still ongoing,” the lawsuit says.

Asked about that exchange, Benak, the hospital’s spokeswoman, said Friday: “There was a concurrent law enforcement investigation which we could not jeopardize.”

Chaloupka alleged in the lawsuit that the hospitals engaged in a “cover-up.” OrthoNebraska rejected that assertion.

The Nebraska Department of Health and Human Services “validated that we reported in an appropriate and timely manner,” Benak said.

She added: “That type of behavior is absolutely unacceptable and a violation of the fundamental trust patients place in their physicians. We are deeply disturbed by any reports that a physician would act in this way.”

The Grand Island woman and her parents are disturbed not just by the doctor’s actions but by the hospitals’ inaction, their lawsuit says.

The case “forever changed the story of S.F.’s life,” Chaloupka wrote. “She will, forevermore, be a person who was sexually abused while under anesthesia. There are no two ways around that.”

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Reporter - Courts

Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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