Judge: William A. Crowfoot, Case: 20STCV11053, Date: 2023-01-31 Tentative Ruling

Case Number: 20STCV11053    Hearing Date: January 31, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

          The operative pleading is the first amended complaint (“FAC”) filed by Plaintiff Jane Doe (“Plaintiff”) against Defendants City of Hope Medical Center, Sam Vu, and Flex Care Medical Staffing (collectively “Defendants”) on May 21, 2020. 

          Plaintiff’s FAC alleges fives causes of action: (1) negligent hiring, retention, and supervision; (2) professional negligence; (3) sexual battery; (4) elder abuse; and (5) general negligence.  The first, second, and fourth causes of action are against Defendant City of Hope Medical Center (“City of Hope”). 

          On November 18, 2022, Defendant City of Hope filed a motion for an order granting summary judgement. 

          On January 17, Plaintiff filed a notice of non-opposition to Defendant City of Hope’s motion for summary judgement. 

II.          FACTUAL BACKGROUND

          On March 30, 2019, Plaintiff was admitted to Defendant City of Hope for the purpose of obtaining a rectal suppository after complaints of abdominal pain, nausea, and decreased bowel movements.  Defendant Nurse Vu administered the suppository in Plaintiff’s vagina instead of her rectum.  Plaintiff was transferred to an outside facility to undergo an independent medical exam related to the administration of the suppository.  After the exam, Plaintiff was transferred back to Defendant City of Hope.  On April 5, 2019, Plaintiff was discharged from Defendant City of Hope.  Based upon the contract entered into between Defendant City of Hope and Defendant Flex Care Medical Staffing, Defendant Nurse Vu contracted with Defendant City of Hope from January 28, 2019, to May 4, 2019.  

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         DISCUSSION

          Defendant City of Hope moves for an order granting summary judgement in its favor and against Plaintiff for her causes of action for professional negligence, negligent hiring, retention, and supervision, and elder abuse. 

a.   Cause of Action for Professional Negligence

          Plaintiff alleges Defendant City of Hope was negligent in allowing a male nurse to perform an examination and procedure on a female patient’s genitals without the presence of a female nurse, supervisor, or other employee designated to supervise such an invasive and personal examination. 

          Defendant City of Hope contends that the medical evidence in this case conclusively establishes that the moving party’s care and treatment of Plaintiff at all times complied with the standard of care.  Plaintiff cannot establish a breach of duty by defendant, and therefore Plaintiff is unable to maintain a claim for medical negligence. 

          “¿The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.¿”  (¿¿Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968¿¿.)  “¿The standard of care in a medical malpractice case requires that medical service providers exercise that…degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances.  The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action….”¿  (¿¿Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1¿¿, quoting ¿¿Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215¿¿.)  Therefore, in medical malpractice cases, “¿expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care….¿”  (¿¿Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741¿¿.)  

          In support of its motion, Defendant City of Hope offers the expert declaration of Dawn Padley, RN.  Padley has been a Registered Nurse since 1978 and is licensed to practice in the California.  (Padley Decl., ¶¶ 1-2.)  Based on Padley’s background, training, and experience, she is readily familiar with the standard of practice for practicing floor nurses and is well familiar with the issues in this matter, the care provided by the nurses to the Plaintiff including the administration of a rectal suppository, and general policies, procedures, and practices of medical facilities relevant to the administration of a rectal suppository.  (Padley Decl., ¶ 3.)  Padley’s opinions are informed by her review of the following records: (1) the medical records of the Plaintiff from City of Hope from the Plaintiff’s relevant admission March 30, 2019 to April 5, 2019; (b) the nursing filed of Sam Vu, R.N. produced in discovery; and (c) the deposition of the Plaintiff.  (Padley Decl., ¶¶ 5-6.)  It is Padley’s expert opinion that Defendant City of Hope met the applicable standard of care at all times during their care and treatment of the plaintiff.  (Padley Decl., ¶ 12.) 

          With respect to the administration of a rectal suppository, Padley’s opinion is that the standard of care of care for the administration of a rectal suppository performed by male nurses on female parties does not require a female nurse to perform the procedure or a chaperone to be present.  (Padley Decl., ¶ 14.)   

          With respect to the treatment provided to the Plaintiff post operation, Padley’s opinion is that Defendant City of Hope complied with the standard of care because after the incident was first reported, the matter was timely elevated up the chain of command without delay and appropriate care was provided.  Local authorities became involved and the Plaintiff was timely transferred to an outside facility for an independent exam.  Once the Plaintiff returned to Defendant City of Hope, the Plaintiff continued to receive adequate care and treatment as it relates to her underlying medical conditions.  (Padley Decl., ¶¶ 15-17.) 

          Plaintiff filed a notice of non-opposition. 

          The Court finds that Defendant City of Hope met its initial burden of showing that the cause of action for professional negligence has no merit because at least of one of the elements of the cause of action cannot be established.  Moreover, the Court finds that Plaintiff, by virtue of her non-opposition to the motion, does not assert that a triable issue of one or more material fact exists as to the cause of action for professional negligence. 

b.   Cause of Action for Negligent Hiring, Retention, and Supervision

          Plaintiff alleges Defendant City of Hope failed to investigate, inquire, screen, research or perform a proper background check concerning Defendant Vu prior to entering into the contract.  Plaintiff claims Defendant City of Hope should have known Defendant Vu was incompetent or unfit and likely to harm other persons.  

          Defendant City of Hope contends there is no evidence it was aware of any actions of Defendant Vu that would have put it on notice of prior misconduct. Further, Defendant City of Hope ensured Defendant Vu was properly trained, made evident by the exams he took, prior to the start of the limited contract period, there was no red flags to prevent his retention, and there were no prior known instances that would have required Defendant City of Hope to provide greater supervision over Defendant Vu.

          “¿[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.  [Citation.]  Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.¿”  (¿¿Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 264 [brackets in original]¿¿.)  

          Under a theory of negligent supervision, “[a]n employer is not charged with guaranteeing the safety of anyone his employee might incidentally meet while on the job against injuries inflicted independent of the performance of work-related functions.”  (Federico v. Sup. Ct. (Jenry G.) (1997) 5, 59 Cal.App.4th at 1215.)

          Defendant City of Hope presents evidence of its responses to request for production of documents served by Defendant Vu which contains the verified nursing file of Defendant Vu.  (Goethals Decl., ¶ 11; Exhibit “G”.) 

          With respect to hiring, prior to the start of the contracted period, a background screening was conducted by Defendant Flexcare and no prior incidences concerning Defendant Vu were reported in the background screening.  (Goethals Decl., ¶ 11; Exhibit “G”.)  Also, per the Board of Registered Nursing, there were no disciplinary actions taken against Defendant Vu at any time and his nursing license was valid through the term of the contracted period: January 2019 to May 2019.  (Goethals Decl., ¶ 11; Exhibit “G”.) 

          With respect to training and supervising, prior to the start of the contracted period, Defendant Vu’s nursing skills were assessed.  Specifically, on November 16, 2018, his overall competency score was a 3.9 out of 4.0, he scored a 91% on the Core Mandatory Party I exam, and he scored a 97% on the Core Mandatory Party II (Nursing) Exam.  (Goethals Decl., ¶ 11; Exhibit “G”.)

          Further, there was no violation of the standard of care in training or supervising Defendant Vu.  Defendant Vu was not an employee of Defendant City of Hope, but he was a “traveler nurse.”  Traveler nurses are common and acceptable and are generally contracted with through staffing agencies. Defendant City of Hope did not train Defendant Vu, as he was not City of Hope’s employee.  Based upon the documentation provided to Defendant City of Hope prior to the contract period, it was reasonable for it to believe Defendant Vu was a competent nurse, not a threat to patients, and would be able to fulfill his duties pursuant to the contract.  It was also reasonable for Defendant City of Hope to move forward with the contract and have Defendant Vu placed at the facility for the contracted period.  Nothing demonstrates that Defendant City of Hope should have known Defendant Vu was incompetent or unfit and likely to harm other persons and nothing indicated Nurse Vu needed special supervision or training. (Padley Decl., ¶ 14.)    

          None of these facts are disputed by Plaintiff as she filed a notice of non-opposition. 

          Accordingly, the Court finds that Defendant have met their initial burden of showing that the cause of action for negligent hiring, retention, and supervision has no merit because at least one of the elements of the cause of action cannot be established.  Moreover, the Court finds that Plaintiff, by virtue of her non-opposition to the motion, does not assert that a triable issue of one or more material fact exists as to the cause of action for negligent hiring, retention, and supervision. 

c.   Cause of Action for Elder Abuse

            Plaintiff alleges Defendant City of Hope committed elder abuse in failing to have appropriate policies and procedures in place to safeguard against sexual abuse, in failing to appropriately investigate Defendant Vu, in failing to ensure a chaperone was present, and in creating an environment wherein the alleged conduct could occur.

          Defendant City of Hope contends that none of Plaintiff’s allegations arise to the level of elder abuse and that it complied with the standard of care in relation to its relevant policies and procedures, in its care of the plaintiff, and in its retention, supervising, and training of Defendant Vu. 

            To state a valid cause of action for elder abuse, the plaintiff must establish by clear and convincing evidence that “the defendant has been guilty of recklessness, oppression, fraud, or malice.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31 (holding that a plaintiff must show that “a defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.”).

          In support that Plaintiff’s allegations do not arise to the level of elder abuse, Defendant City of Hope presents again evidence of its responses to request for production of documents served by Defendant Vu which contains the verified nursing file of Defendant Vu and evidence of the standard of care with respect to the administration of a rectal suppository and the treatment provided to the Plaintiff post operation (Goethals Decl., ¶ 11; Exhibit “G”; Padley Decl., ¶¶ 14-16.)

          None of these facts are disputed by Plaintiff as she filed a notice of non-opposition.  

          Accordingly, the Court finds that Defendant City of Hope has met its initial burden of showing that the cause of action for elder abuse has not merit because at least one of the elements of the cause of action for elder abuse cannot be established.  Moreover, the Court finds that Plaintiff, by virtue of her non-opposition to the motion, does not assert that a triable issue of one or more material fact exists as to the cause of action for elder abuse.

VI.     CONCLUSION

          In light of the foregoing, Defendant City of Hope’s Motion for summary judgment is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.