The Rule of Sobalvarro is that a hospital's negligence in failing to offer a disabled female patient the choice of being cared for by a female nurse for intimate care can be a substantial factor causing emotional distress and other harm, under circumstances where the patient is paralyzed, incontinent, requires daily intimate care, and receives such care from a male caregiver contrary to her preferences and the Patient's Bill of Rights.
Appeal from judgment notwithstanding the verdict in Superior Court, Marin County.
Defendant Appellants were Vibra Health Care and Kentfield Hospital — the corporate parent and acute care rehabilitation hospital that failed to ask plaintiff about her preference for female caregivers for intimate care.
Plaintiff Respondent was Jessica Duran Sobalvarro — the stroke victim who was paralyzed and incontinent, requiring daily intimate care while at the hospital.
The suit sounded in negligence, assault, battery, and dependent adult abuse. Plaintiff alleged she was sexually assaulted by a male certified nursing assistant while receiving care at defendants' facility.
The key substantive facts leading to the suit were that plaintiff suffered a serious stroke in 2015 that left her paralyzed and unable to speak or move, requiring six months of care at Kentfield Hospital including daily intimate care (pericare and bed baths) due to incontinence. She was cared for by Kene Orleans, a male certified nursing assistant. Defendants never asked plaintiff or her medical decision maker whether she preferred to be cared for by female attendants for intimate care, despite having a policy to honor such requests and being required to do so under the Patient's Bill of Rights.
The procedural result leading to the Appeal: The trial court granted defendants' motion for judgment notwithstanding the verdict after a jury found Orleans not liable but found Kentfield and Vibra negligent and awarded plaintiff $1,000,000 in non-economic damages, ruling that the causal nexus between defendants' negligence and plaintiff's injury was lacking.
The key question(s) on Appeal: Whether substantial evidence supported the jury's finding that defendants' negligence in violating the Patient's Bill of Rights was a substantial factor in causing plaintiff's harm, despite the jury's exoneration of the individual caregiver Orleans.
The Appellate Court held that substantial evidence supported the jury's verdict finding defendants negligent for failing to offer plaintiff the choice of female caregivers for intimate care, and that this negligence was a substantial factor in causing her emotional distress, even though the jury found the individual male caregiver not liable for assault or battery.
The case is inapplicable when the patient is asked about and consents to intimate care by opposite-gender caregivers, when the patient does not require intimate care, when expert medical testimony is required to establish the standard of care, or when the hospital's alleged negligence is unrelated to Patient's Bill of Rights violations.
The case leaves open questions about what other violations of the Patient's Bill of Rights might support negligence claims, the extent of damages recoverable for such violations when no physical assault is proven, and whether expert testimony might be required in more complex medical negligence scenarios involving Patient's Bill of Rights violations.
Counsel
For Appellant: Seigel, Yee, Brunner & Mehta, Dan Siegel and Alan S. Yee
For Respondent: Cole, Pedroza, Kenneth R. Pedroza, Dana L. Stenvick; Hinshaw, Marsh, Still & Hinshaw, Bradford Hinshaw, Patrick Colin Stokes, Christian Liang Goan