Samantha B. v. Aurora Vista Del Mar, LLC

77 Cal.App.5th 85

292 Cal.Rptr.3d 324

SAMANTHA B. et al., Plaintiffs and Appellants,

v.AURORA VISTA DEL MAR, LLC et al., Defendants and Appellants.

2d Civ. No. B302321

Court of Appeal, Second District, Division 6, California.

Filed April 5, 2022

As Modified on Denial of Rehearing April 26, 2022

Law Office of David Feldman and David Feldman for Plaintiffs and Appellants.

Horvitz & Levy, Andrea M. Gauthier, Bradley S. Pauley, Burbank; Kendall Brill & Kelly, Nicholas F. Daum, Los Angeles; Beach Law Group, Thomas E. Beach, Mindee J. Stekkinger and Molly M. Loy, Oxnard, for Defendants and Appellants.

Cole Pedroza, Curtis A. Cole and Cassidy C. Davenport, San Marino, for California Medical Association, California Dental Association, and California Hospital Association as Amici Curiae on behalf of Defendants and Appellants.

OPINION FOLLOWING REHEARING

GILBERT, P. J.

Civil Code section 3333.2, known as the Medical Injury Compensation Reform Act of 1975 (MICRA), limits noneconomic damages to $250,000 based on professional negligence. Here we decide this limitation does not apply to plaintiffs’ causes of action under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act). (Welf. & Inst., § 15600 et seq.)¹

Samantha B. and Danielle W. (Plaintiffs) are former patients at an acute psychiatric hospital.² While residing at the hospital, they suffered sexual abuse by a hospital employee. They brought this action against the hospital and its management company, alleging professional negligence and breach of the Elder Abuse Act. The jury found for Plaintiffs and awarded substantial noneconomic damages against both defendants, as well as punitive damages against the management company. Defendants appeal. Plaintiffs appeal the trial court's grant of a motion for nonsuit on their causes of action alleging vicarious liability under respondeat superior and ratification. These causes of action are properly brought before a court or jury.

The matter is reversed and remanded for a new trial on the issue of respondeat superior and ratification. In all other respects, the judgment is affirmed.

FACTS

Aurora Vista Del Mar, LLC (Aurora) is a licensed acute psychiatric hospital. Aurora is wholly owned by Signature Healthcare Services, LLC (Signature). Both entities are wholly owned by Doctor Soon Kim, who owns 11 similar hospitals nationwide.

Signature has a management agreement with Aurora. Among other tasks, Signature agreed to provide "[d]aily operational direction and management" and "[c]linical responsibility for all service programs."

Aurora Hires Valencia

In July 2011, Aurora hired Juan Valencia as a mental health worker. The duties of a mental health worker include seeing that patients do not harm themselves or others, keeping patients in a safe environment, and helping patients with daily living activities. Mental health workers are not licensed.

When Valencia was hired, he was given a form in which he was asked whether he had been arrested for a crime requiring registration as a sex offender. He answered no.

In fact, Valencia had been arrested in 1989 for sexual penetration with a foreign object ( Pen. Code, § 289, subd. (b) ) and unlawful sexual intercourse with a minor (id. , § 261.5, subd. (c)). Sexual penetration with a foreign object requires registration, but intercourse with a minor does not. (Id. , § 290, subd. (c).) He pled guilty to sexual intercourse with a minor and the other charge was dismissed. The court reduced Valencia's conviction to a misdemeanor and dismissed it in 2008.

Aurora retained an investigative consumer reporting agency to conduct a background check on Valencia. Such agencies are prohibited from reporting an arrest or conviction that antedates the report by more than seven years. ( Civ. Code, § 1786.18, subd. (a)(7).) The agency did not report Valencia's 11-year-old arrest or conviction.

Had Aurora hired certified nursing assistants (CNA's), instead of unlicensed mental health workers, it would have had notice of any such prior conviction. CNA's are fingerprinted and licensed.

Training

To be a mental health worker, no license, experience, education, or training is required. As one former Aurora employee put it, "one day they work at McDonalds, the next day they are mental health workers." Aurora gave Valencia two days of orientation.

The orientation included three to five minutes on countertransference, that is, the tendency of a caregiver to form an emotional bond with a patient. Thereafter, all Valencia needed to do was sign a form on patient and staff interactions and relationships once a year. Staff were not tested to see if they understood patient boundaries.

Plaintiffs’ expert testified, "If you read the depositions of multiple staff at the facility, nursing staff, nursing assistants or they call them ‘psyche techs’ at that facility, it was very clear that they had no idea what transference or countertransference even meant."

Policy on Access to Patients

It is Aurora's policy to allow male mental health workers to be alone with female patients in their rooms for up to 20 minutes as long as the door to the room is open.

Jamie Tallman, an Aurora psychiatric nurse, testified that the charge nurse for the unit spends most of the time at the nursing station. The nurse cannot see into the patients’ rooms from the nursing station. One must go into the room to see what is happening there. Walking up and down the hallway is not enough. The charge nurse relies on the mental health workers for information on the patients.

Valencia Sexually Violates Plaintiffs

Plaintiffs were patients at Aurora in 2013 during the time Valencia worked there. Each was suffering from psychosis and did not have the mental capacity to consent to sex. Valencia engaged in sexual relations with all three individually while they were at Aurora.

Valencia became known among hospital workers as "Rapey Juan." A worker reported the nickname to the supervising nurse. The nurse's response was to roll her eyes and say something like "What are you going to do?"

Bravo Incident

In 2004, an Aurora male employee named Bravo sexually molested a 17-year-old female patient. Theresa Berkin, who was at that time Aurora's director of clinical services, recommended to Aurora's CEO that the hospital increase education to improve therapeutic boundaries. The CEO said that corporate, meaning Signature, would not pay for it. Berkin testified there were other incidents while she was at Aurora in which a staff member interreacted sexually with a patient.

Patient Vulnerability

Patients in an acute psychiatric hospital are vulnerable. Their mental disorders may impair their judgment. Some suffer from cognitive impairments similar to dementia. Some patients receive medications that render them temporarily unconscious. Plaintiffs’ expert testified that sexual assaults of mental patients are a known foreseeable risk.

Understaffing

Mark Martinez was a mental health worker at Aurora from 2011 to 2014. He testified that each patient was rated for "acuity" between one and four, with four being the most acute. The entire unit was rated for acuity based on an aggregation of scores of the individual patients. A formula would be applied to the unit's acuity rating to determine the appropriate staffing level. Martinez testified the unit was consistently understaffed. He said he was on his own with 16 to 24 patients. He complained to the nursing supervisor, the staffing coordinator, and to anyone who would listen, to no avail.

Psychiatric nurse Tallman worked at Aurora from 2010 to 2014. She testified the hospital was frequently understaffed. She complained to the director and assistant director of nursing.

Judy Pittacora, a licensed psychiatric technician, worked at Aurora from 2003 to 2014. She testified the units were more often than not understaffed. She said her supervisors would cross out the acuity number she assigned to a patient and lower it to lower the number of staff needed. Understaffing had an impact on her ability to supervise mental health workers. The workers were often on their own with patients. She complained about understaffing to her supervisors but was told that is how the hospital CEO wanted it. She quit because of understaffing. She was afraid she was going to lose her license.

Failure to Report

Danielle W. was discharged from Aurora on November 29, 2013. The next day a student nurse saw Valencia and the plaintiff together at a party. They appeared to be romantically involved. Aurora suspended Valencia and, after a two-day investigation, terminated him on December 12, 2013.

Aurora's CEO testified that Valencia was terminated only for being with a former patient at a party. The CEO did not suspect there had been any wrongdoing while the patient was hospitalized, even though the patient had been discharged only the day before the party. She did not interview Valencia, the hospital staff, or the former patient to see if any wrongdoing occurred while the former patient was hospitalized. She did not know whether anyone did.

The CEO admitted that about a month after Valencia's termination she learned Valencia's conduct with the former patient at the party was sexual in nature. She also admitted that Aurora had a duty to report such an incident to the California Department of Public Health but did not do so for one year. Aurora only reported Valencia's misconduct after it became public knowledge.

Procedure

Samantha B. was discharged from Aurora on March 6, 2013. She filed the instant action against Aurora and Valencia in February 2015, within two years of her discharge. In June 2015, she added Signature to her complaint. She alleged sexual assault; intentional infliction of emotional distress; and violation of Civil Code section 51.9, sexual harassment in a professional relationship. She also alleged negligence in hiring, supervising, and retaining Valencia and dependent adult abuse under the Elder Abuse Act against Aurora. ( § 15600 et seq. ) Danielle W. was discharged...