Jane Doe vs. Dignity Health

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion for Summary Adjudication in Department 25

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

Defendant Dignity Health’s motion for summary adjudication of Plaintiff’s Fifth Cause of Action for Dependent Adult Abuse/Neglect is DENIED.

INTRODUCTION

This is an action for personal injuries which Plaintiff alleges she sustained as a result of repeated sexual assaults by Gregory Harms, a male ICU nurse employed by Defendant Hospital, while she was an incapacitated and uncommunicative ICU patient.

Plaintiff’s Complaint asserts six causes of action, including a Fifth Cause of Action for “Dependent Adult Abuse/Neglect” under Welfare & Institutions Code sections §§15610.07 and 15610.5. Plaintiff alleges that Defendant subjected her to neglect, as defined in Welfare and Institutions Code section 15610.57, by the failure to provide Plaintiff with basic custodial care, failure to maintain Plaintiff in a safe and healthy manner, and failure to protect her from health and safety hazards. Plaintiff further alleges that Defendant’s conduct was oppressive, reckless, malicious, and/or fraudulent; was authorized by the officers, directors, or managing agents of Defendants; and that Plaintiff is entitled to attorneys’ fees and punitive damages under Welfare & Institutions Code §15657.

Defendant Hospital now moves for summary adjudication of Plaintiff’s Fifth Cause of Action on the ground that that it “has no merit” as a matter of law. Defendant asserts that Plaintiff’s claim of neglect fails, because (1) she received extensive medical care; (2) her is claim is based on acts of professional negligence, which is beyond the scope of the Act; and (3) a claim of neglect based on a failure to protect her from the health and safety hazard of sexual assault is precluded by applicable decisional authority. Defendant further asserts that Plaintiff cannot demonstrate Defendant’s vicarious liability for the alleged physical abuse/assault by its employee through either respondeat superior, or ratification.

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Defendant raises additional issues and argument related to Plaintiff’s claim for enhanced damages under Welf. & Inst. Code §15657. The Court finds that these issues are not relevant to Defendant’s challenge to the merits of her 5th cause of action, as discussed below, and they will not be addressed in this order (as they are more clearly raised by the concurrently filed motion for summary judgment or, in the alternative, summary adjudication).

DEFENDANT’S OBJECTIONS TO EVIDENCE

Pursuant to Code of Civil procedure section 437c, subdivision (q), the Court need only rule on the objections to evidence deemed material to its disposition of the motion.

A. Objections to the declaration of Arthur Schorr

Objections Nos. 1, 3, 5, 6: This matter is not material to the disposition of this motion.

Objections No. 2 and 4: OVERRULED. This matter constitutes proper and admissible opinion which is supported by foundational facts.

B. Objection to evidence of allegations regarding Harms’ conviction related to Christina Doe

This matter is not material to the disposition of this motion.

C. Objection to evidence of another hospital’s current policy/practice regarding chaperones

OVERRRULED. This matter is relevant to whether sexual exploitation of vulnerable patients by hospital employees is a generally foreseeable risk. Nevertheless, the matter is not material to the disposition of this motion.

FACTUAL BACKGROUND

Plaintiff, a then 41-year-old woman, was a patient of Defendant Hospital from November 20, 2016 to February 7, 2017. At the time of her admission she was noted to have a “locked” jaw and body, and was unable to move her limbs or torso. On November 27, 2016, Plaintiff was intubated due to respiratory distress and transferred to the ICU

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department. [UMF 1-3]. Plaintiff remained in the ICU unit for 28 days, until December 24, 2016. While she was in the ICU Plaintiff could only move her thumb and turn her head from side to side; and she was unable to speak due to the tracheotomy tube. [UMF 3, PAMF 47]

A. Plaintiff’s report of sexual abuse

Plaintiff was first able to speak on January 19, 2017, after a speech therapist placed a valve device into her tracheotomy tube. She immediately reported to two speech therapists that she had been raped by a male nurse on the nights of December 16, 17 and 18, 2016, between the hours of 1:00 and 2:00 a.m. She described the nurse as Caucasian, 40-something, around 6’1” and 145 pounds, with the name of either “David” or “Guerro.” [UMF 9, 10; PAMF 48, 49]. Per the social worker, speech therapist Kwan reported to the social worker that Plaintiff appeared to be “cognitively intact” during this reporting. [Def. Ex. B, Methodist BS 3587]

One of the speech therapists reported Plaintiff’s allegations to Hospital social worker Stephanie Smith, who then spoke with Plaintiff about her allegations. Plaintiff gave Smith the same details which she had earlier reported to the speech therapists, adding that a charge nurse on duty on the nights of the rapes was named “Lindsay.” [UMF 12]. Smith has testified that Plaintiff gave “very specific” details, that she had no reason to doubt the validity of Plaintiff’s allegations, and that in her conversations with Plaintiff’s providers no one indicated that she might be hallucinating the sexual assaults. [Def. Ex. D, Smith depo., 108: 6-9, 113-114, 203:24-204:3]

Plaintiff was given a psychological examination in regard to her allegations by a Hospital doctor that same day. She reported the same details as previously reported to the speech therapists and Smith regarding the dates and time of the alleged rapes, and the description of the nurse who had allegedly abused her. Her examiner found Plaintiff to be oriented, her thought processes were linear and devoid of psychosis, her insight and judgment appeared fair, and she denied any auditory or visual hallucinations. He concluded that it was “unclear” Plaintiff had any cluster b personality traits. [Def. Ex. B, Methodist BS 016-017]

Smith reported Plaintiff’s allegations internally to the interim ICU Director, Connie Barnes, the 3rd floor manager, the 3rd floor Charge RN, Supervisor Celeste Sweitzer, Plaintiff’s physician, Mark LaBriola, M.D., hospital leadership, and Risk Manager, Erin

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Weeden. [UMF 14]

B. Hospital’s investigation and response to Plaintiff’s allegations

ICU Director Barnes investigated Plaintiff’s allegations of rape on the same day of her report (January 19, 2017), by checking to see if the hospital employed anyone named “David Guerro”, and whether a nurse named “Lindsay” worked as a charge nurse at the hospital, finding that no one by these names was so employed. [UMF 15] Barnes determined that two male nurses, John Doe and Gregory Harms, were assigned to Plaintiff’s care on the nights of Plaintiff’s alleged rapes. [See UMF 16; PAMF 50]. Plaintiff’s medical records show that Gregory Harms made notations on Plaintiff’s chart on the night of December 18, 2016. [PAMF 50, 51] Barnes has testified that she did not interview John Doe or Gegory Harms. [Plaintiff’s Ex. 7, Barnes depo, 150:2-15] She declares, however, that she spoke with John Doe and Gregory Harms, advised them of the allegations of sexual assault and that they would not be working while an investigation was pending, but that she did not place them on leave. [Barnes decl., ¶5, 7]

Barnes informed Chief Nurse Innes of the results of her investigation, and collaborated with Innes and Risk Manager Weeden in determining that both John Doe and Gregory Harms should be placed on administrative leave pending an investigation. [Pl. Ex. 7, Barnes depo. 76:1-7, 107:3-20] John Doe was placed on leave for approximately three workdays. [Pl. Ex. 11, John Doe depo. 51: 10-20]. Harms has testified that he was never placed on administrative leave while employed by the Hospital, and continued to work there up until March 2017, when he left. [Pl. Ex. 3, Harms depo. 64:18-21; 66:3-6]

Risk Manager Weeden took over the investigation from Barnes, but did not investigate whether Plaintiff’s allegations of rape were true, relying on law enforcement for that determination. Instead, she made a determination of patient safety, concluding that there was no immediate concern for patient safety. [Pl. Ex. 7, Barnes depo. 76:1-7; Pl. Ex. 12, Weeden depo. 93:13-94:17] In a letter to Plaintiff’s family Weeden represented that Barnes had interviewed the two male nurses (which Barnes denies), that the Hospital could not substantiate Plaintiff’s allegations, and that “[n]nothing during her interview caused concern for patient safety.' [PAMF 84, 85, 96]

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C. Reports to external agencies

Social worker Smith reported Plaintiff’s rape allegations to Adult Protective Services and to the Sacramento Police Department on January 19, 2017[UMF 13, 17] In a letter dated January 23, 2017 the Hospital reported Plaintiff’s allegations to CDPH.

D. Investigation by law enforcement

Sacramento Police Officers Fong and Bean arrived at the Hospital on January 19, 2017 to gather information for detectives to determine if any further investigation was warranted. [PAMF 88] Fong spoke with Plaintiff, who gave the same details she had previously reported, and stated that she could identify the nurse who raped her if she saw him. [Def. Ex. M, 1/19/17 Folsom PD report] Fong found Plaintiff to be believable. [Pl. Ex. 9, Fong depo. 42: 10-16; Def. Ex. E Fong depo., 37:16-17]

Bean spoke with Barnes who advised him that no one named “David Guerro” or “Lindsay” was working in the ICU on the nights of the alleged rapes; that Plaintiff would have been heavily sedated while in ICU; that side effects of the sedation medication used were an altered state and hallucinations; and that it is common for ICU patients to develop “ICU dementia”. [PAMF 89; Def. Ex. M, 1/19/17 Folsom PD Report; Def. Ex. E., Fong depo., 66-68; Def. Ex. S, Bean depo., 83:18-21] This information impacted SPD’s investigation, leading the officers to believe that no crime had been committed. [Def. Ex. E, Fong depo. 61:10-62:6] Officer Bean determined that Plaintiff was “likely in an altered mental and physical state at the time she reported the rapes to have occurred”. [PAMF 91].

After Officer Bean submitted his report, Sacramento Police Department classified the matter as an informational report instead of a crime report, and the case was closed [PAMF 93]

Harms was never interviewed by law enforcement and did not provide any written statement to law enforcement. [Pl. Ex 3, Harms depo., 64:2-6]

E. Investigation by CDPH

The Hospital’s January 23, 2017 letter to CDHP reported that the Hospital’s investigation had found the following: (1) there was no ICU nurse by the name of David

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Guerro or Lindsay; (2) there was a different charge nurse each night of December 16, 17 and 18, 2016; (3) there are two ICU nurses who fit the physical description given by the patient; (4) both nurses were placed on administrative leave pending the results of this investigation; and (5) that the interim director of the ICU interviewed both nurses. The letter further states that the allegations were reported to the Sacramento Police; that Officer Bean interviewed the patient, the interim director of the ICU and the attending intensivist; and that “given his interviews, the officer thought it was not necessary to interview the two male ICU nurses.” [Def. Ex. F, CDHP subpoenaed documents, pp 15-16.]

CDHP closed its investigation on February 15, 2017, concluding that the Department was “unable to substantiate a violation of the regulations”. [Def. Ex. F, CDHP subpoenaed documents, p. 57] There are no facts or evidence presented as to the basis for CDHP’s conclusion.

F. Plaintiff’s own investigation and discovery

Plaintiff was discharged from Dignity Health Methodist Hospital in February 2017. In April 2017, she called the Sacramento Police Department to follow up on her case. The police told her that her case was closed because she did not know the name of the person who raped her and because she was in an ICU psychosis. [PAMF 95]

Plaintiff then conducted her own investigation to find out the identity of the man who raped her. In September 2017, she obtained her medical records from Defendant Hospital and looked up the names of who was assigned to her on the dates of her rapes. After identifying Gregory Harms as one of the nurses, she found a photo of Harms on Facebook which matched the person who raped her. [PAMF 96]

G. Evidence of other sexual assaults of incapacitated patients by Harms

Prior to being hired by Hospital Harms had worked at various facilities, including concurrent employment with the Sacramento County Jail and Facial Cosmetic Surgery Center from 1997 to 2012. In 2011, Harms is alleged to have sexually assaulted Yelena Doe while she was incapacitated following surgery at the Facial Cosmetic Surgery Center. Yelena Doe reported Harms’ sexual assault to the surgery center immediately and to police about a month later. [Pl. response to UMF 7; Pl. Ex. 3, Harms depo, 17:19-20:14; 23:21- 24:3; 27:16- 17; Ex. 4, Harms depo, Vol. 3 444:4- 455:18].

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H. Harms’ employment by Defendant

Harms worked at the Hospital as an ICU nurse from June 22, 2015, to approximately February or March of 2017. In May 2015, Harms submitted to and passed a criminal background check as a condition of his employment at Dignity Health as an ICU nurse at Hospital. On or about June 22, 2015, Harms completed Hospital’s New Employee Orientation on several topics, including its Standard of Conduct Handbook and Sexual Harassment Policy. During the time Harms worked at Hospital, including at the times of Plaintiff’s alleged rapes and resulting investigation, there had been no complaints or reports to Hospital that Harms had engaged in sexual misconduct. [UMFs 5,6,7,8]

LEGAL STANDARDS ON MOTIONS FOR SUMMARY ADJUDICATION

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Civ. Code §3294, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. CCP §437c (f)(1).

Summary judgment (and summary adjudication) is proper if the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to prevail on a cause of action as a matter of law. (CCP § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) A defendant moving for summary judgment/summary adjudication has the initial burden to show that the plaintiff cannot establish one or more elements of the challenged cause of action or there is a complete defense to that cause of action. (CCP § 437c, subd. (p)(2)) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff's claim, or by submitting evidence that demonstrates “the plaintiff does not possess, and cannot reasonably obtain, needed evidence” to prove an essential element of the plaintiff's claim. (Aguilar, at p. 855.)

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If the defendant makes a sufficient showing, the burden then shifts to the plaintiff to demonstrate a triable issue of material fact exists. (CCP §437c, subd. (p)(2)) A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 850) If the plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at p. 843.) Summary judgment is property granted only if the moving party’s evidence establishes that there is not issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374).

ANALYSIS

A. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER PLAINITFF CAN ESTABISH HER CAUSE OF ACTION FOR DEPENDENT ADULT NEGLECT AND ABUSE UNDER THE ACT

Defendant asserts that Plaintiff is unable to establish her claim of dependent adult neglect under the Act, because:

1. She does not dispute that the Hospital provided her with extensive medical care and attended to her basic needs;

2. Plaintiff’s claim is based on professional negligence, and is therefore excluded under the Act;

3. To the extent that Plaintiff’s claim of neglect is based on a failure to protect her from the health and safety hazard of sexual assault, her claim fails as a matter of law under the facts of Samantha B. v Aurora Vista Del Mar, LLC (2022) 77 Cal. App. 5th 85;

1. The failure to protect Plaintiff from a health and safety hazard constitutes neglect under the Act

Welf, & Inst. Code §15610.57, broadly defines “neglect” under the Act as “the negligent

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failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Subsection (b)(3) provides that neglect includes, among other things, a “failure to protect from health and safety hazards.”

Based on the plain language of the statute, “neglect” under the Act is not limited to the denial of “goods and services necessary to meet the elder or dependent adult’s basic needs,” as asserted by Defendant. Thus, evidence that Defendant provided Plaintiff with medical care and attended to her basic needs does not defeat Plaintiff’s claim. Further, as set forth below, Plaintiff has presented evidence to support that Defendant committed neglect in its provision of custodial care.

2. Defendant fails to demonstrate that Plaintiff’s claim is based on professional negligence

Welf. & Inst. Code §15657.2 prohibits extension of the Act to claims based on acts of simple professional negligence. (See Delaney v. Baker (1999) 20 Cal.4th 23, 32 [“Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some culpability greater than mere negligence.”].) Section 15610.57, inter alia, defines neglect as “the negligent failure” to exercise that degree of care that a reasonable person in that position would exercise and includes the failure to protect from health and safety hazards.

The California Supreme Court has acknowledged the distinction between “neglect” and “professional negligence,” noting that the “difficulty . . . lies in the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care.” (Delaney v. Baker (1999) 20 Cal.4th 23, 34.) The Court has acknowledged that the same conduct can be both; for example, where a nursing home allows a patient to suffer malnutrition, such conduct would be professional negligence based on the inability of nursing staff to prescribe or execute a plan of furnishing sufficient nutrition as well as on an omission that is “unquestionably ‘neglect.’” (Id. at pp. 34-35.)

The California Supreme Court explained that the statutory language “provides the way out of this ambiguity,” as the conduct will fall under the Act “if the neglect is ‘reckless,’ or done with ‘oppression, fraud, or malice.’” (Id. at p. 35.)

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Hospitals and other twenty-four-hour health facilities, and members of their support staff and maintenance staff, are included within the Act’s definition of “care custodian.” Welf. & Inst. Code § 15610.17. The Act applies where “the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs” with the elder patient. “It is the nature of the elder or dependent adult’s relationship with the defendant - not the defendant’s professional standing - that makes the defendant potentially liable for neglect.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, at p. 152)

Defendant contends that Plaintiff’s claim is necessarily one for professional negligence rather than neglect under the Act, because (1) she alleges that the Hospital was “negligent” in its hiring and supervision of Harms, and its lack of policies and protocols for male nurses with access to female patients; and (2) her expert, Arthur Shorr, declares that the Hospital “fell below the standard of care” in vetting Harms for employment.

Based on the evidence provided by Plaintiff (and some of the undisputed evidence) a trier issue of fact could reasonably find that the Hospital had a substantial caretaking relationship with Plaintiff which involved the ongoing responsibility for her basic needs. It is undisputed that Plaintiff was an ICU patient for 28 days, during which time she could only move her thumb and turn her head from side to side, and she could not speak. [UMF 3, PAMF 47].

The Court finds that Plaintiff’s allegations fall within the explicit definition of neglect under the Act based on the alleged negligent failure to exercise due care and alleged failure to protect from health and safety hazards. Schorr’s standard of care opinion is evidence to support Plaintiff’s assertion that Defendant did not act as a reasonable person with respect to hiring and regarding the safety of female patients who are unable to communicate as it relates to Defendant’s custodial caretaking duty. It is also evidence of an omission that a trier of fact could find supports a failure to protect from health and safety hazards. The Court finds that the declaration does not demonstrate that her claim is based simply on professional negligence.

Moreover, for the reasons set forth below, the Court finds that Plaintiff has presented evidence to raise a triable issue of fact regarding “recklessness.” Thus, Defendant’s assertion that the conduct at issue is solely based on professional negligence fails.

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3. Triable issues of fact exist as to whether Plaintiff can establish neglect based on a failure to protect her from the health and safety hazard of sexual assault

Plaintiff bases her claim of neglect, as defined in §15610.57(b)(3), on the Hospital’s failure to carry out its custodial obligation to protect her from the health and safety hazard of sexual assault by Gregory Harms. Plaintiff asserts that Defendant committed this neglect by its failure to properly screen Harms before he was hired; failure to properly supervise Harms; and failure to have policies and protocols in place, including a chaperone policy, for male nurses who care for the Hospital’s vulnerable and uncommunicative female ICU patients. Defendant contends that Plaintiff’s claim fails, as a matter of law, under the facts of Samantha B. v Aurora Vista Del Mar, LLC (2022) 77 Cal. App. 5th 85.

Samantha B. involved claims of neglect under the Act by two vulnerable patients of a psychiatric facility who had been sexually assaulted by an employee with a prior arrest/conviction of sexual assault. (Id. at 91-92.) A jury found that the facility had committed negligence and reckless neglect and awarded punitive damages. (Id. at p. 95.) The trial court granted nonsuit on the claims of vicarious liability. (Id. at 107.) The appellate court affirmed the underlying verdict, as well as the award of exemplary damages, based on clear and convincing evidence of reckless neglect. However, the court found that nonsuit was error, because a jury could find that employee acted within the scope of employment, and therefore respondeat superior applied; or that the hospital’s failure to investigate constituted ratification. (Id. at pp. 96-109.)

In affirming the jury’s verdict the court recited the substantial evidence it relied on as meeting the heightened evidentiary standard (clear and convincing evidence) for reckless neglect: that defendant hired unlicensed mental health workers, and knew or should have known that their ability to do background checks on such workers was limited; training was minimal; the hospital’s policies allowed male nurses to be in a female patient’s room, secluded from view, for up to 20 minutes; the hospital was understaffed; and a supervisor did nothing in response to being told that the offending employee was known as “Rapey Juan.” (Id. at p. 100.) However, the Court expressly noted “that male workers were allowed 20 minutes alone with a vulnerable female psychiatric patient in a room secluded from view would by itself support a finding of recklessness. (Ibid.)

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Samantha B. demonstrates that evidence of negligent hiring, supervision and a lack of policies to protect vulnerable female patients from sexual assault may be sufficient to support a claim of neglect and recklessness under the Act. Defendant has failed to meet its threshold burden to either negate Plaintiff’s allegations of neglect based on negligent hiring, supervision, and the lack of policies for male nurses, or show that Plaintiff “does not possess, and cannot reasonably obtain, needed evidence” to support these allegations. Defendant’s Separate Statement offers only three “undisputed facts” related to these allegations, one of which (UMF 28) is simply argument:

UMF 6: On or about June 22, 2015, Harms completed Dignity Health’s New Employee Orientation on several topics, including its Standard of Conduct Handbook and Sexual Harassment Policy

UMF 7: In approximately May 2015, Harms submitted to and passed a criminal background check as a condition of his employment at Dignity Health as an ICU nurse at Hospital.

UMF 28: There is no admissible evidence Dignity Health dba Methodist Hospital of Sacramento knew or should have known Harms was an employee who had and/or would sexually assault a patient such as Plaintiff.

As a result of Defendant’s failure to meet its threshold burden, the burden has not shifted to Plaintiff to demonstrate that a triable issue of material fact exists with respect to her allegations of negligent hiring, supervision, and the lack of policies. Nevertheless, Plaintiff has done so through her own Statement of Additional Facts and supporting evidence, and the declaration of Arthur Shorr, an expert in Hospital and Healthcare Administration. Plaintiff’s PAMFs demonstrate the following:

• The Director of ICU who interviewed Harms expected the hospital’s recruitment office to check on whether an applicant had failed to disclose prior employers; she deferred to that office to determine if a prospective employee had withheld information regarding prior employers; and she did not ask job applicants whether they had been accused of misconduct at their prior employment. [PAMF 57, 58].

• There was no ICU Director supervising Harms on December 16, 17, and

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18, 2016, the dates that Plaintiff reported she was raped; and one clinical care coordinator (assistant nurse manager) was in charge of supervising all the ICU nurses during the night shift [PAMF 64, 69];

• Defendant did not have a policy requiring male nurses to have chaperones when attending to female patients [PAMF 67].

Shorr declares that caring for patients who are incapable of communicating creates foreseeable risks of sexual abuse, and therefore hospitals are required to enact policies and protocols to protect against the risk of sexual assault of patients by hospital staff; that consistent with Joint Commission standards it was common and customary in 2016 for hospitals to have such policies and procedures for male nurses providing care to female patients who are unable to communicate; and that Defendant’s failure to address this foreseeable risk was reckless and ignored the high probability that an assault could occur. Shorr further states that Defendant fell below the standard of care for vetting Harms; that a proper vetting process for qualified applicants would include a process to determine if an applicant has withheld any previous employer; and that Defendant’s failure to do so resulted in the failure to discover that Harms had withheld a prior employer where he was accused of sexually assaulting a patient.

Defendant asserts that Plaintiff’s claim of neglect based on a failure to protect her from the safety hazard of sexual assault fails, because the factors relied on in Samantha B. as constituting clear and convincing evidence of such neglect are not present here. The Court disagrees.

While not all of these factors may be present here, Plaintiff has presented evidence that Plaintiff was particularly vulnerable to sexual predation in her physical state, there was no director of the ICU at the time of the assaults, there was one assistant nurse manager on the night shift responsible for supervising all ICU nurses, and there was no chaperone policy requiring male nurses to have chaperones when attending female patients. [PAMF 47, 64, 67, 69] Further, Plaintiff has presented evidence that, in an incident prior to the assault at a different facility, a female patient who was incapacitated reported that Harms sexually assaulted her. Plaintiff presents evidence that, if proper vetting had been performed, Defendant would have uncovered that Harms failed to disclose his employment with this facility and eligibility for rehire. [PAMF 102]

As such, there are triable issues of fact regarding whether Defendant committed

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dependent adult neglect and more specifically, whether the conduct was reckless.

B. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER PLAINTIFF CAN ESTABLISH DEFENDANT’S VICARIOUS LIABILITY FOR PHYSICAL ABUSE UNDER THE ACT

“Physical Abuse” under the Act includes sexual assault and rape. Welf. & Inst. Code §15610.63.

Defendant argues that Plaintiff cannot demonstrate that Defendant is vicariously liable for the sexual assault by Harms, under theories of either respondeat superior or ratification, because:

(a) The assault was not committed within the course and scope of Harms’ employment, and therefore respondeat superior does not apply;

(b) Plaintiff cannot demonstrate ratification, because Plaintiff’s rape allegations were never substantiated.

1. Respondeat Superior

An employer may be liable for such physical abuse, under the doctrine of respondeat superior, where a sexual assault is committed by an employee within the scope of employment. (Samantha B., supra, at p. 85). An act is within the scope of employment if the employment predictably creates the risk that employees will commit intentional torts of the type for which liability is sought. (Samantha B., supra, at p.107; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299).

A sexual assault is within the scope of employment if the employment predictably creates the risk that employees will commit intentional torts of the type for which liability is sought, and the motivating emotions for the assault were fairly attributable to work related events or conditions. (Samantha B. v Aurora Vista Del Mar, LLC (2022) 77 Cal. App. 5th 85, 107; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299). “The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed. The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought” (Lisa M., supra, 12 Cal.4th at p.

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302.)

The Samantha B. court found that sexual exploitation of three psychiatric patients by a mental health worker was a foreseeable risk of the circumstances of the job due to the patients’ vulnerability, the facility’s policy allowing male employees 20 minutes of access to female patients, and inadequate training on worker-patient boundaries. Samantha B., supra, 77 Cal.App.5th at p. 108. The court found that a reasonable person could conclude that the assault in that case was motivated by work related conditions, because the duties of the employee included helping vulnerable psychiatric patients with daily living activities, and the employee was personally involved with the patients over an extended period of time. (Ibid.)

The court noted that this “was not a case of a momentary failure in an otherwise sufficient system,” as the employee had preyed upon three different women. (Id. at p. 100.)

The Samantha B. court distinguished Lisa M., in which a technician who sexually assaulted a patient while performing an ultrasound examination was not found to be acting within the course and scope of his employment. (Id. at p. 108.) There, the employee’s interaction with the patient was brief and the employee's duties were technical, leading the court to conclude that the circumstances of employment were highly unlikely to engender a personal relationship that might result in sexual exploitation. (Lisa M., supra, 12 Cal.4th at p. 301-304.)

In this case, as in Samantha B., a reasonable person could find that the risk of a sexual assault of a vulnerable ICU patient was foreseeable; and that the motivating emotions for Harm’s sexual assault were fairly attributable to work related events or conditions, as he was assisting Plaintiff with her basic needs at times over the course of her extended 28 day stay in the ICU, creating the opportunity for a personal relationship to develop. Further evidence of this is found in Plaintiff’s testimony that Harms commented “I would’ve never left you out in the car”, (referring to an event that occurred prior to Plaintiff’s admission). [Pls.

Ex. 5, Jane Doe depo., 106:3-9]. Moreover, it appears to be undisputed that, at the time of the reported rapes, Plaintiff was in a vulnerable position, unable to move in large part and unable to speak, when Harms able to present in her room as a result of his position; as such, the ICU nurse was placed in a unique position of control over Plaintiff. (See Mary M. v. City of Los Angeles, 54 Cal.3d 202, 216-217 [holding that respondeat superior liability could be imposed based on a police officer’s rape of a detained person where it was committed in the course of a series of acts of the agent which were authorized by the principal and where the officer is granted

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extraordinary power and authority over the citizenry, including the victim].) As the court found in Samantha B., this is “not a case of a momentary failure in an otherwise sufficient system,” as Harms is alleged to a have raped Plaintiff on the different occasions.

Triable issues of fact therefore exist as to whether Defendant can be held vicariously liable for Harms’ sexual assault of Plaintiff under the doctrine of respondeat superior.

2. Ratification

An employee may be liable for an employee's act where the employer subsequently ratifies the originally unauthorized tort. The failure to investigate or respond to charges that an employee has committed an intentional tort or the failure to discharge the employee may be evidence of ratification. “Ratification may be inferred from the fact that an employer, after being informed of the employee’s actions, does not fully investigate and fails to repudiate the employee’s conduct by redressing the harm done and punishing or discharging the employee.” (Fisher v San Pedro Peninsula Hosp. (1989) 214 Cal. App. 3d 590, 621) Generally, ratification is a question of fact. (Samantha B., supra, at p. 109)

Triable issues of fact exist as to whether the Hospital conducted a full and thorough investigation, based on evidence that the investigation was limited to checking whether a person named “David Guerro” worked at the hospital; and that neither Harms or his co-worker were interviewed, despite the fact that they were identified as the nurses on duty on the nights of the alleged assaults, and they matched the physical description given by Plaintiff.

Triable issues of fact also exist as to whether the investigations conducted by law enforcement and CDHP were sufficiently thorough, based on evidence that they were influenced by the Hospital staff’s comments that Plaintiff had been under sedation, and that this could cause ICU dementia and hallucinations. Given that Plaintiff was viewed as “believable” by the staff to whom she reported the rapes, the psychiatrist who examined her, and the staff member and officer who interviewed her, a reasonable person could find these interviews to be inadequate.

In addition to this evidence regarding the inadequacy of the investigations, a second basis for ratification is found in the evidence regarding a failure to respond. Plaintiff

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presents evidence that the Hospital did not place Harms on leave, and it appears undisputed that the Hospital did not otherwise subject him to any discipline after Plaintiff reported the rapes.

CONCLUSION

Based on the foregoing, summary adjudication of Plaintiff’s 5th case of action for neglect and abuse under the Dependent Adult Act is DENIED.

Plaintiff’s counsel shall prepare an order pursuant to Code of Civil Procedure section 437c, subsection (g), and California Rules of Court, rule 3.1312.