MORIN v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL

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Court of Appeal, Second District, Division 4, California.

Lisa MORIN, Plaintiff and Appellant, v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL, Defendant and Respondent.

No. B074774.

Decided: October 20, 1994

R. Rex Parris and Michael R. Smith, Berkeley, for plaintiff and appellant. Veatch, Carlson, Grogan & Nelson and John B. Loomis, Los Angeles, for defendant and respondent.

Plaintiff Lisa Morin appeals from the summary judgment rendered in favor of defendant and respondent Henry Mayo Newhall Memorial Hospital.   We reverse and remand.

BACKGROUND

Lisa Morin (appellant) brought an action, based on improper sexual conduct by an ultrasound technician, against Bruce Tripoli (Tripoli);  Mediq Imaging, Inc. (Mediq Imaging), employer of Tripoli;  and respondent Henry Mayo Newhall Memorial Hospital, contractor of the services of Mediq Imaging.   The complaint alleged professional negligence, battery, intentional infliction of emotional distress, and negligent infliction of emotional distress.

On July 9, 1989, Morin, then pregnant, sustained neck and back injuries when a movie theater chair she was occupying collapsed.   She was transported to respondent's emergency room to determine the seriousness of her injuries.   A fetal assessment was ordered which would include an upper right quadrant ultrasound procedure.

Tripoli, the ultrasound technician “on call” for the emergency room pursuant to a contract between Mediq Imaging and respondent, transferred appellant from the emergency room to an ultrasound room where he was alone with her.

Tripoli performed the ultrasound examination as ordered.   It consisted of passing an ultrasound instrument over the exterior of appellant's stomach and upper abdominal region and then moving the instrument approximately one inch below appellant's pubic line.   In addition, Tripoli raised appellant's right breast to obtain a proper image of the upper portion of her liver.

After the examination, either Tripoli asked appellant if she wanted to know the sex of the fetus, or he was asked by appellant if the sex of the fetus could be determined.   In any event, appellant consented to further use of the ultrasound instrument to ascertain this information.   Tripoli inserted a tube of gel into appellant's vagina and probed her vaginal area with the ultrasound instrument.   He put down the instrument and touched appellant's vaginal area with his fingers.   Appellant wondered about the propriety of Tripoli's actions but, never having been through the procedure before, assumed he was acting appropriately.   After the examination was concluded, Tripoli returned her to the emergency room, from which she was discharged without further incident.

Appellant spoke with her sister about the procedure utilized to determine the sex of the fetus.   Her sister had undergone an ultrasound procedure for the same purpose but had not experienced the invasive examination suffered by appellant.   As a result of this conversation, appellant informed her doctor about her experience.   The doctor concluded that the examination described was inappropriate.   Appellant reported the incident to respondent.1

In the case at bar, respondent moved for summary judgment, asserting that the actions of Tripoli did not fall within the normal duties of an ultrasound technician and therefore respondent could not be held liable under the doctrine of respondeat superior.   In addition, respondent asserted it had not negligently supervised Tripoli.   In support of the motion, Dr. Hank Graham declared he had been director of radiology at respondent for 18 years and during that time more than 30,000 ultrasound examinations had been performed in conjunction with its emergency room and its outpatient clinic without a complaint of sexual impropriety, except for that giving rise to this case.

In opposition, appellant asserted that there was a triable issue of fact whether respondent was negligent in failing to have a third party present during the examination and whether Tripoli's actions were within the scope of his agency and employment.   In support of the negligent supervision argument, appellant submitted the declaration of Carolyn Catton, which addressed the negligence of the hospital in supervising Tripoli by failing to have another person present during the procedures.

At the hearing on the motion, the court reasoned that Catton's declaration did not specifically state that when performing an ultrasound examination on women the standard of the community is that another person is present.   The court also reviewed Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 176 Cal.Rptr. 287, holding that it was factually similar to the incident at hand and ruled out liability based on the doctrine of respondeat superior.   It granted summary judgment.

ISSUES

Appellant contends that appellant's expert raised a triable issue of fact whether respondent had breached its duty of care by failing to monitor a male technician's examination of appellant under the conditions presented, and that the trial court erred in determining that the actions constituting the sexual molestation were beyond the course and scope of employment as a matter of law.2

DISCUSSION

 “A defendant is entitled to a summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.  (Stationers Corp. v. Dun & Bradstreet [1965] 62 Cal.2d [412] at p. 417 [42 Cal.Rptr. 449, 398 P.2d 785].)  To succeed, the defendant must conclusively negate a necessary element [of each cause of action] of the plaintiff's case, and demonstrate that under no hypothesis is there a [claim] that requires the process of a trial.  (Ibid.)”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, emphasis added.)   We review the motion for summary judgment de novo.  (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 212, fn. 3, 285 Cal.Rptr. 717.)

The most recent case dealing with whether sexual misconduct falls within the course of employment is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341.   In Mary M., plaintiff was stopped for a traffic violation and then raped by an on-duty police officer who was eventually convicted of rape.   The woman brought a civil action against the officer and the city that employed him.   She alleged the city was vicariously liable for the police officer's actions under the doctrine of respondeat superior.   The jury found in favor of plaintiff, but a divided court of appeal reversed the judgment against the city.   The majority held as a matter of law that the sexual misconduct of the officer was not within the scope of his employment and therefore the city could not be held liable under a theory of respondeat superior.  (Id. at pp. 207–208, 285 Cal.Rptr. 99, 814 P.2d 1341.)   The Supreme Court reversed the court of appeal and held that the question “whether [the officer] acted within the scope of his employment was one properly left for the jury to decide.”  (Id. at p. 214, 285 Cal.Rptr. 99, 814 P.2d 1341.)

 Ordinarily, determination of whether an employee has acted within the scope of employment presents a question of fact.   It becomes a question of law, however, when “ ‘the facts are undisputed and no conflicting inferences are possible.’ ”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 213, 285 Cal.Rptr. 99, 814 P.2d 1341.)   In some cases, the relationship between an employee's work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment.  (Id. at p. 213, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Respondent contends that such is the case here, asserting that even if all conflicts in the facts and the inferences to be drawn from those facts are resolved in appellant's favor, Tripoli was acting outside the scope of employment when he sexually molested plaintiff because no trier of fact could reasonably find that sexual molestation was within the scope of his employment as an ultrasound technician.

The case at hand is factually similar to Mary M. because in both there is a misuse of official authority which led to the sexual assault of an individual.   In Mary M., plaintiff was raped by an on-duty police officer after he had detained her pursuant to a traffic infraction.   The employer had granted to the officer the manifestation of his authority, which led to Mary M.'s submission to his demand to pull-over.   He was then able to continue his assertion of authority and place her in a position where she was vulnerable to attack.   Likewise, in this case, respondent had granted Tripoli the indicia of authority to undertake a medical procedure on a patient who, of necessity, placed her trust in him.   He used his indicia of authority to obtain her consent to the unauthorized procedure.

 Whether liability under the doctrine of respondeat superior exists in a given situation depends upon the weighing of three policy objectives.  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 214, 285 Cal.Rptr. 99, 814 P.2d 1341.)   The first is whether imposing liability on the employer may prevent recurrence of the tortious conduct because liability “creates a strong incentive for vigilance by those in a position to guard substantially against the evil to be prevented.  [Citation.]”  (Id. at p. 214, 285 Cal.Rptr. 99, 814 P.2d 1341, internal quotation marks omitted.)   Respondent contends that the opinion in John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 451, 256 Cal.Rptr. 766, 769 P.2d 948 (hereafter John R.) governs.   We disagree.

In John R., a junior high school student sued the school district, alleging he had been sexually molested by the teacher while at the teacher's apartment as part of an officially sanctioned extracurricular program.   The trial court ruled that the school district could not be held vicariously liable for the molestation, and it granted the district's motion for nonsuit.   The California Supreme Court upheld the trial court's ruling.   The lead opinion concluded that the policy objective of vigilance did not support the imposition of liability on the school district because the preventive measures that the employer could be forced to take would do more harm than good.   To impose vicarious liability in that situation, the opinion explained, “would be far too likely to deter districts from encouraging, or even authorizing, extracurricular and/or one-on-one contacts between teachers and students or to induce districts to impose such rigorous controls on activities of this nature that the educational process would be negatively affected.”  (John R., supra, 48 Cal.3d at p. 451, 256 Cal.Rptr. 766, 769 P.2d 948.)

In contrast, it is highly probable the imposition of liability on hospitals, whose employees commit sexual assaults while taking advantage of a patient's trust, would encourage hospitals to enact preventive measures which would not significantly interfere with the ability of the employees to perform their tasks and ensure the safety of patients while at the hospital.

The second policy underlying the application of the doctrine of respondeat superior is to give greater assurance of compensation to the victim.   In analyzing this particular policy, the court in Mary M. noted the Legislature's recognition that the imposition of vicarious liability on a public employer is an appropriate method to ensure that victims of police misconduct are compensated.  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 215, 285 Cal.Rptr. 99, 814 P.2d 1341.)   The Legislature has put the policy into effect by refusing to grant immunity to public entities when their police officers use excessive force or engage in assaultive conduct.   (Id. at p. 215, 285 Cal.Rptr. 99, 814 P.2d 1341;  Gov.Code, § 810, et seq.)   Imposing vicarious liability under the situation presented here will result in greater assurance of compensation to victims of sexual assault in hospital settings.

The third policy consideration is the appropriateness of spreading the risk of loss among the beneficiaries of the enterprise.   In Mary M., the court looked to the lead opinion of John R. for guidance, noting that the majority “recognized that school districts and the community at large benefit from the authority that teachers are given over students, but it concluded that the connection between that authority and a teacher's sexual abuse of a student was ‘simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher's employer,’ and thus did not support vicarious liability in that context.”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 216, 285 Cal.Rptr. 99, 814 P.2d 1341, citing John R., supra, 48 Cal.3d at p. 452, 256 Cal.Rptr. 766, 769 P.2d 948.)   We believe there is a difference in authority, “in both degree and kind,” between a hospital technician and a teacher.   The authority of a hospital technician over a patient—bolstered immediately by his uniform, identification card, medical instruments, and expectation of submission to invasive procedures—plainly surpasses that of a teacher over a student.

As Mary M. points out, “[i]nherent in this formidable power [of a police officer] is the potential for abuse.   The cost resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 216–217, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Similarly, in this case, inherent in the hospital setting is the potential for the exact type of abuse which occurred.

Respondent also relies on Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 176 Cal.Rptr. 287.   There, the court of appeal upheld a trial court's ruling that a school district could not be held vicariously liable for the sexual molestation of an 11–year–old child by a school custodian on school grounds.   As the court observed:  “There is no aspect of a janitor's duties that would make sexual assault anything other than highly unusual and very startling.”  (Id. at p. 143, 176 Cal.Rptr. 287.)   In contrast, an ultrasound technician wields considerable authority and control when performing procedures upon a patient.   Those inherent responsibilities do not at all resemble the duties of the school custodian in Alma W., supra.

 Respondent argues that when Tripoli sexually molested appellant, he was not acting in the course of his employment, but was primarily pursuing his own interests.  “The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.”  (John R., supra, 48 Cal.3d at p. 447, 256 Cal.Rptr. 766, 769 P.2d 948, quoting Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139, 176 Cal.Rptr. 287.)   As the court in Mary M. said:  “the proper inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 219, 285 Cal.Rptr. 99, 814 P.2d 1341, internal quotation marks omitted.)   Appellant has presented sufficient evidence to require that this determination be left to the trier of fact.

DISPOSITION

The judgment of the superior court is reversed and the matter is remanded for further proceedings.   Costs to appellant.

FOOTNOTES

1.   Appellant filed a criminal complaint with the sheriff's department.   Following an investigation, Tripoli admitted his actions were unprofessional, was arrested and convicted.

2.   Because we determine that the court erred as a matter of law on this second issue, the summary judgment must be reversed in its entirety.   We need not decide whether the trial court also erred on the issue of negligence.

HASTINGS, Associate Justice.

EPSTEIN, Acting P.J., and CHARLES S. VOGEL, J., concur.