Judge William A. Crowfoot, Case 20STCV11053 2023-02-14 Tentative Ruling

Judge: William A. Crowfoot, Case: 20STCV11053, Date: 2023-02-14 Tentative Ruling

JANE DOE,

Plaintiff,

vs.

HOPE MEDICAL CENTER., et al.,

Defendants.

)

CASE NO.: 20STCV11053

[TENTATIVE] ORDER RE: DEFENDANT FLEX CARE MEDICAL’S MOTION FOR SUMMARY JUDGMENT

Dept. 3

8:30 p.m.

February 14, 2023

On March 17, 2020, Plaintiff Jane Doe (“Plaintiff”) filed this action. On May 21, 2020, Plaintiff filed the First Amended Complaint (“FAC”) alleging the following causes of action: (1) negligent hiring, retention, and supervision, (2) professional negligence, (3) sexual battery under Cal. Civ. Code section 1708.5, (4) elder abuse, and (5) general negligence.

On January 15, 2021, the Court sustained Defendant Flex Care Medical’s demurrer as to the first cause of action and fifth causes of action without leave to amend. After the demurrer was sustained, only the professional negligence cause of action remained against Defendant.

On November 23, 2022, Defendant FlexCare Medical (“Defendant”) filed a motion for summary judgment as to the remaining cause of action for professional negligence arguing that there is no triable issue of material fact and there is an absence of evidence. In the alternative, Defendant moves for summary adjudication as to the professional negligence and punitive damages claim.

· On or about January 5, 2017, defendant Sam Vu, RN submitted an application with FlexCare Medical Staffing for his candidacy for travel nurse assignments. (UMF No. 1.)

· Mr. Vu indicated that his license had never been investigated or suspended, and that he had never been named as a defendant in a professional liability action. He also indicated that he had never been convicted of a crime (not including minor traffic violations), or have any pending misdemeanor or felony criminal charges. (UMF No. 2.)

· Mr. Vu was invited back to complete several additional travel nurse assignments at City of Hope Duarte. (UMF No. 10.)

· Mr. Vu's final assignment with City of Hope Duarte was set for January 28, 2019, to May 4, 2019. Following the alleged incident on March 30, 2019, City of Hope Duarte terminated Mr. Vu's assignment on April 3, 2019. (UMF No. 11.)

· On March 30, 2019, Plaintiff presented to City of Hope- Duarte with complaints of abdominal pain, nausea, and decreased bowel movements. She underwent an abdominal x- ray at an outside facility and was told that she had a bowel obstruction. Plaintiff reported that she had not had a bowel movement for two days. The plan was to admit Plaintiff for observation and a rectal suppository was ordered to stimulate her colon. (UMF No. 14.)

· Plaintiff reported inappropriate conduct by a male nurse. Plaintiff reported that Mr. Vu administered the suppository in her vagina instead of her anus despite Plaintiff’s telling him to stop. Plaintiff reported feeling Mr. Vu whole hand in her vagina. (UMF No. 16.)

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.)

Plaintiff’s evidentiary objections are overruled. The challenged evidence is not hearsay as it is not offered for the truth of the matter asserted. Moreover, the evidence is relevant.

Defendant objected to Plaintiff’s expert declaration. As the Court finds that Defendant has not met its moving burden, it need not address Defendant’s objections to the declaration of Plaintiff’s expert witness Carol Ingalls, R.N. Nonetheless, the Court overrules Defendant’s objections and finds that the Ingalls declaration addresses the standard of care expected of co-defendant Vu and, therefore, would be relevant to the issue of Defendant’s vicarious liability for co-defendant Vu’s negligence.

On February 9, 2023, Defendant filed a request for judicial notice in support of its February 9, 2023, reply to Plaintiff’s opposition to Defendant’s Motion. The request for judicial notice is granted.

The Court notes, however, that Defendant incorrectly asserts that the Court’s January 31, 2023, ruling on the Motion for Summary Judgment brought by co-defendant City of Hope found “as a matter of law” that co-defendant Vu or (or, therefore, by implication Defendant) did not breach the standard of care. Defendant’s February 9, 2023, reply asserts, “[u]nfortunately for Plaintiff, this Court has already found as a matter of law that the nurse did not breach the standard of care in its ruling on co-defendant City of Hope’s motion for summary judgment, to which Plaintiff filed a notice of non-opposition and submitted on the tentative ruling granting the motion.” Reply, p. 2:12-15. The expert declaration on which Defendant City of Hope relied was made in support only of that co-defendant’s motion. (Padley Declaration, November 15, 2022, ¶ 4.) It does not address the standard of care of any other defendant. Moreover, the Court’s finding as to the applicable standard of care in the City of Hope ruling is narrower than Defendant acknowledges, and the expert opinion on which it relies does not support the conclusion Defendant has reached. The expert opinion states the following:

As it relates to plaintiff’s alleges [sic] that City of Hope failed to have appropriate policies and procedures in place, the at-issue procedure in this matter was the administration of a rectal suppository. Plaintiff alleges a female nurse should have performed the procedure or that a chaperone was required to be present. Neither were required by the standard of care for the administration of a rectal suppository. Male nurses can administer rectal suppositories on female patients. If a female nurse is requested, this request should be complied with, but there is no evidence a female nurse was requested. As for the issue of a chaperone, the administration of a rectal suppository is not the type of sensitive procedure that requires the presence of a chaperone. This procedure is not as intimate as vaginal exam, for example. The standard of care at the time did not require City of Hope to have policies and procedure [sic] in place to ensure a chaperone was present for the administration of all rectal suppositories performed by male nurses on female patients.

(Padley Decl., ¶ 14.) None of that addresses whether the nurse was negligent in the incorrect insertion of the suppository.

As framed by the complaint, Plaintiff alleges Defendant had a duty to use reasonable care in the treatment and medical care of all its patients, including the proper administration and implementation of a suppository. (FAC ¶ 55.) Defendant also had a duty to use reasonable care in selecting their staff and a duty to provide competent nurses, and failed to conduct a proper background check, failed to investigate, and failed to properly assess Defendant Vu prior to retaining him as an employee. (FAC ¶ 56-57.) The complaint alleges that Defendant to notify Defendant City of Hope of Defendant Vu’s propensity to commit criminal acts and failed to provide and communicate to Defendant City of Hope all information necessary and failed to document complaints made against Defendant Vu. (FAC ¶ 58-59.) Thus, the complaint shows that there are two theories of liability – (1) direct/vicarious professional negligence and (2) negligent hiring, retention, and supervision.

Defendant contends that (1) Plaintiff cannot impose liability against Defendant for conduct clearly outside the course and scope of Mr. Vu’s employment; and (2) Plaintiff cannot show that Defendant knew or should have known about Mr. Vu’s alleged propensity to commit a sexual assault because Mr. Vu’s personnel file shows no prior patient complaints or incidents of alleged assault.

“The elements of a cause of action for professional negligence are (1) the existence of the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “Both the standard of care and defendants’ breach must normally be established by expert testimony in a medical malpractice case.” (Avivi, supra, 159 Cal.App.4th at p. 467.) Thus, in a medical malpractice case, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985 (citations omitted).)

Here, Defendant submits no evidence that seeks to prove that Dr. Vu’s conduct in administering the suppository was within the standard of care. Defendant puts forth no expert declarations that opines as to the standard of care. Instead, Defendant argues that, as an independent staffing agency that had contracted with City of Hope and is not a healthcare provider, it could not be directly liable for the offensive conduct. However, Defendant offers no evidence or case law to support this argument that it cannot be vicariously liable for co-defendant Vu’s negligent conduct.

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. (Maria D. v. Westech Residential Security, Inc. (2000) 85 Cal.App.4th 125, 134.) For the doctrine of respondeat superior to apply, the plaintiff must provide evidence that the employee's tortious conduct was committed within the scope of employment. (Ibid.) A risk arises out of the employment when in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. (Ibid.) In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer. (Ibid.)

Defendant cites to various cases to prove that Mr. Vu’s conduct was outside the scope of his employment. However, all of these cases found that a defendant could not be liable for an employee’s sexual assault and sexual harassment. However, this cause of action is for professional negligence, not sexual battery. Notably, the complaint only brought the sexual assault cause of action against Defendant Vu, not Defendant Flex Care. Defendant offers no argument or evidence that co-defendant Vu’s conduct of failing to properly administer and implement a rectal suppository by inserting it into the Plaintiff’s vagina was not within the scope of his employment.

Thus, Defendant fails to meet its burden of showing that there are no triable issues of material fact as to Defendant’s liability for professional negligence.

Although, as stated above, the Court need not rely on evidence submitted by Plaintiff, the Court notes that Plaintiff puts forward an expert declaration which opines that nurse Vu failed to employ procedures to comply with the standard of care, namely that Vu failed to employ available translation services, failed to request a female nurse to administer the suppository, and failed to insert the suppository in the correct location. (Ingalls Declaration, January 25, 2023, ¶ 5.) Plaintiff also puts forward evidence of nurse Vu’s employment contract which shows that his employment duties were “administering and documenting medications and narcotics” and “provid[ing] care in a non-judgmental, non-discriminatory manner.” (Powers Declaration, January 31, 2023, Ex. H.) As Mr. Vu was administering a medication at the time of the incident, Plaintiff’s evidence makes it at least a dispute of fact as to whether nurse Vu’s conduct was within the scope of his employment.

Defendant also puts forward evidence that it did not have actual knowledge of any danger posed by Mr. Vu towards patients.

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Defendant argues that the evidence presented establishes that Defendant had no knowledge of any wrongdoing by Mr. Vu. Defendant puts forth evidence that Mr. Vu indicated in his application that he had never been investigated or suspended, that he had never been named as a defendant in a professional liability action, and that he had never been convicted of a crime or have any misdemeanor or felony criminal charges. (McElyea Declaration, November 18, 2022, ¶ 4, FlexCare pp. 59-62.) Defendant states that it did a background check which confirmed Mr. Vu did not have a criminal history or disciplinary actions against his license. (McElyea Decl. ¶ 6, FlexCare p. 312-318.) Defendant also stated that they contacted Mr. Vu's prior employers who gave positive reviews. (McElyea Decl. ¶ 7-10, FlexCare p. 140-146.) Additionally, Defendant also continued to conduct routine background checks. (McElyea Decl. ¶ 14, FlexCare p. 300-311, 321-330.) FlexCare states that it was never notified of any patient complaints against Mr. Vu. (McElyea Decl. ¶ 15.)

This evidence meets Defendant’s burden of showing it had no knowledge of the risk of harm relating to the employment of nurse Vu.

However, Plaintiff puts forward evidence Mr. Vu testified that he did not receive any training from Defendant regarding communication with non-English speaking patients, delegating intimate procedures to female nurses for female patients, or cultural sensitivity of patients. (Powers Decl. Ex. B. [Depo. 82:4-7, 83:4-10, 84:10-15.) Plaintiff also puts forward evidence that Vu testified that Defendant spoke with Defendant Vu to discuss the incident and counseled him on the importance of using trained interpreters, delegating intimate procedures to female nurses, being aware of cultural differences, and patients’ right to withdraw consent. (Powers Decl. Ex. E.) Defendant required Defendant Vu to complete a CEU course on cultural diversity and CEU course in the use of interpreter, which Vu completed. (Powers Decl. Ex. E; Powers Decl. Ex. B. 103:19-104:11; Powers Decl. Ex. J.)

This creates a reasonable dispute as to a material fact as to whether Defendant negligently supervised nurse Vu by failing to train him to handle incidents such as this one.

The court denies the motion for summary judgment as to this theory of liability.

Defendant argues for summary adjudication as to punitive damages. Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).)¿ Punitive damages are not available in a malpractice action based on negligence.

Thus, the court grants Defendant’s motion for summary adjudication as to punitive damages.

The motion for summary adjudication is DENIED as to the professional negligence claim.

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.