Diannia L. Hadley vs. Kiuimars R. Hekmat
Nature of Proceeding:
Filed By:
Motion for Judgment on the Pleadings (Radiological Associates of
Salenko, Bruce E.

Radiological Associates of Sacramento and Eileen McCloskey’s Motion for Judgment on the Pleadings is granted.

Plaintiff’s request for judicial notice of the Complaint and opinion in Lathrop v Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412 is granted.

This action arises out of an incident in which Defendant Kuimars R. Hekmat, MD allegedly sexually assaulted and attacked Plaintiff during a medical appointment.

Defendant Radiological Associates of Sacramento Medical Group, Inc. (“RAS”) is Dr. Hekmat’s employer and Defendant Eileen McCloskey was employed by RAS as its director of human resources. Plaintiff alleges a single cause of action against McCloskey and RAS for negligence. That cause of action encompasses two theories, that of direct liability for negligent hiring, supervision and retention, and that of vicarious liability for the acts of Dr. Hekmat. Plaintiff alleges that her injuries occurred on November 19, 2009. This action was not filed until November 10, 2011.

On May 1, 2012, the Court ruled on the Motion to Dismiss taken under submission on April 10, 2012. The Court denied the motion to dismiss on the ground that the direct liability negligence claim for negligent hiring was governed by a two year statute of limitations. Defendant had argued that a claim for negligent hiring of a physician by a medical group is covered by MICRA and therefore governed by the one year statute of limitations, CCP 340.5. However, the Court opined that since the underlying tort was not negligence but outside the scope of employment, MICRA did not apply.

Direct Liability Claim

The limitations for ordinary negligence is two years. CCP 335, 335.1. The limitations period for a cause of action for professional negligence against a health care provider is under some circumstances shorter–“one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.” CCP 340.5. Defendants now seek reconsideration of the court’s prior ruling by this judgment on the pleadings on the ground that the recent case of Yun Hee So v Sook Ja Shin (2013) 212 Cal.App.3d 652 affirmatively establishes, as a matter of law, that a claim against a medical group for negligent hiring of a physician is governed by MICRA, and therefore is barred unless the plaintiff brings suit within one year of the discovery of the alleged negligence.

This motion meets the requirements of 1008(b) based on new law, and the motion for reconsideration is granted. After reconsidering the prior ruling, the motion for judgment on the pleadings is properly granted. The claim for negligent hiring of a physician by a medical group and its employee is barred by the one year statute of limitations CCP 340.5.

In So, plaintiff sued the hospital and medical group for negligent hiring and retention. The hospital, joined by medical group, moved for judgment on the pleadings contending that a claim for negligent hiring and retention by a hospital and medical group was a claim for professional negligence. The Court held that hiring and supervising medical personnel are clearly within the cope of services for which a hospital is licensed and that the failure to so necessarily states a claim for professional negligence. So, at 668.

In opposition, Plaintiff argues that the moving parties are not health care providers for purposes of MICRA and that only Hekmat is covered under MICRA. Plaintiff contends that the So case does not support defendants’ contention that MICRA applies to medical groups because the language of So refers only to the hospital which was licensed. Plaintiff contends only parties that are licensed or certified can be health care providers. Plaintiff relies on the case of Lathrop v Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, which held that a medical group is not a health care provider under MICRA because it was not a licensed practitioner

The issue of whether the medical group operated a licensed facility was not raised in that case, and plaintiff has not alleged that the medical group did not operate a licensed facility.

Under Lathrop, MICRA applies to an employing entity held vicariously liable for the professional negligence of its agents. In the direct liablity claim, the medical group is vicariously liable for the professional negligence of its agent in hiring, supervising and retaining Dr. Hekmat. In Palmer v Superior Court (2002) 103 Cal.App.4th 953, the court found that a medical corporation is a health care provider within the meaning of CCP 425.13 even though the medical group itself was not licensed. The Court in Palmer stated that “[t]he definition in Cal. Code Civ. Proc. § 425.13(b) of “health care provider” should be read broadly to implement its statutory purpose, protecting a health care provider which delivers services to patients, from potentially unfounded punitive damages claims where the health care provider is a medical group comprised of licensed medical practitioners, who provide direct medical services to patients, albeit under a fictitious name. In such a case, an additional license need be obtained for the medical group itself.” Palmer, at 967. It is clear from the allegations of the complaint that plaintiff was seen at a facility providing direct medical services to patients. She does not allege or seek to allege that the facility was not a licensed facility.

Moreover, the Court notes that in So, the medical group was a party to the motion for judgment on the pleadings that was granted.

Plaintiff’s opposition relies in part on CCP 583.130, concerning discretionary dismissals for failure to prosecute, which provides in part that the policy favoring trial is generally preferred over the policy of dismissal for failure to prosecute. This code section is not on point and fail to address the legal deficiencies of plaintiff’s claims.

Vicarious Liability Claim

Defendants contend that in the Court’s ruling on the Motion to Dismiss, the Court agreed with defendants that as a matter of law, the alleged sexual acts committed by Dr. Hekmat were outside the course and scope of employment.

The allegations of Hekmat’s conduct are as follows:

“On or about November 19, 2009, Plaintiff, having been referred for consultation, consulted with Defendant KIUMARS HEKMAT at 500 University Avenue, Suite 200, Sacramento, Califomia. At all relevant times. Defendant KIUMARS R. HEKMAT was acting as a medical practitioner and was therefore held in a position of trust by Plaintiff. At all times herein mentioned. Defendant KIUMARS HEKMAT exploited Plaintiff’s vulnerable condition and abused his position of authority, in that, among other things, he made sexual advances to Plaintiff with a lewd and lascivious motive and did, in fact, touch Plaintiff’s knees, touch his lower body to Plaintiff’s chest, and did touch, fondle, and grab Plaintiff’s breasts on November 19,2009, while Plaintiff was sitting in a chair located in a private consultation room alone with Defendant KIUMARS HEKMAT. When Plaintiff became upset with Defendant’s sexual advances. Defendant KIUMARS HEKMAT lifted Plaintiff’s left arm and with excessive force karate chopped Plaintiff in the left rib cage causing injury to Plaintiff’s person and Defendant lifted Plaintiff’s right arm and with excessive force karate chopped Plaintiff in the right rib cage causing injury to Plaintiff’s person.” (Complaint, ¶¶ 6 and 7)

“Ordinarily, the determination 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.’ ” (Lisa M. v. Henry Mayo Newhall Mem’l Hosp., (1995) 12 Cal.4th 291, 299 (hereafter Lisa M.), citing Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213d.) “[Where the undisputed facts would not support an inference that the employee was acting within the scope of his employment,” the complaint may be challenged by way of demurrer (and likewise a Motion for Judgment on the Pleadings). (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Kimberly M. v. Los Angeles Unified School Dist (1989) 215 Cal.App.3d 545.)

Under the doctrine of respondeat superior, an employer can be vicariously liable for torts committed by an employee if those acts occurred during the “course and scope of employment.” (Lisa M , 12 Cal.4th at 296; see also Perez v. Von Groningen & Sons, Inc (1986) 41 Cal.3d 962, 967.) However, for an employer to be held liable for an intentional tort, the tort must have a causal nexus to the employee’s work, meaning that the tort must arise from the work of the employment. (Lisa M., supra, 12 Cal.4th at 297.) In other words, “the risk of tortious injury must be ‘foreseeable’ in the sense it is inherent in the working environment” of the employee’s typical employment. (MP. v. City of Sacramento (2009) 177 Cal.App.4th 121, 129.) “But for” causation is not applicable to respondeat superior liability; it is not enough that employment merely brought tortfeasor and victim together. (Lisa M,, supra, 12 Cal.4th at 298-99.)

California law has firmly established that sexual misconduct is not causally related to employment, and therefore a hospital or other medical provider cannot be vicariously liable for sexual assault. Lisa M. v Henry Mayo Newhall Mem’l Hospital (1995) 12 Cal.4th 291, 299; see, also John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438. The facts of the instant case are even more removed from the course of employment than those alleged in the Lisa M. case. In Lisa M. plaintiff alleged she was sexually assaulted by an ultrasound technician during an ultrasound exam. In this case, plaintiff alleges that she was sitting in a chair in a consult room when Hekmat allegedly sexually assaulted her and karate chopped her in the ribs.

Plaintiff’s opposition does not address the scope of employment issue, but only contends that defendants are liable for direct negligence for allegedly having known of prior similar conduct of Dr. Hekmat. That direct liability claim is barred by CCP 340.5, as explained above.

The court finds as a matter of law that Dr. Hekmat’s conduct is outside the course an scope of employment, and therefore moving parties are not vicariously liable as a matter of law.