Case Number: 18STCV00470 Hearing Date: February 20, 2020 Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: February 20, 2020

Case Name: Koos, M.D., Ph.D. v. Regents of the University of California, et al.

Case No.: 18STCV00470

Motion: Motion for Summary Judgment/Adjudication

Moving Party: Defendant Regents of the University of California

Opposing Party: Plaintiff Brian Koos

Tentative Ruling: The Motion for Summary Judgment is denied. The Motion for Summary Adjudication is granted as to the issue of punitive damages.

On October 5, 2018, Plaintiff filed the operative Complaint alleging violations of Health & Saf. Code § 1278.5. Plaintiff alleges that Defendant retaliated against him when he reported concerns as to the quality of care for a newborn who suffered a brain injury.

Defendant Regents of the University of California moves for summary judgment contending that Plaintiff cannot establish a prima facie case of retaliation or point to evidence indicating that Defendant’s reasons for his discipline were pretextual. Defendant also seeks summary adjudication of Plaintiff’s claim for punitive damages because “a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code § 818.)

Plaintiff has the initial burden to establish a prima facie case of retaliation by showing (1) he or she engaged in protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) Once the employee establishes the prima facie case, the burden shifts to the employer, who must present a legitimate, nonretaliatory reason for the adverse employment action. (Ibid.) If the employer carries this burden, the court no longer presumes retaliation, and the burden shifts back to the employee to prove intentional retaliation. (Ibid.)

With respect to motions for summary judgment, “ ‘[T]he employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.) “If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer’s stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’ ” (Ibid.)

Defendant first argues that Plaintiff cannot establish a prima facie case of retaliation per Health & Saf. Code § 1278.5(b)(1)(A)[1] because Plaintiff never complained of patient safety. However, Plaintiff’s April 24, 2018, and April 26, 2018, letters could be interpreted as reporting a safety concern as Plaintiff stated, “To my knowledge, the residents, maternal-fetal medicine fellows and faculty have yet to understand why there was such a poor outcome in this case and what change in management might have been preventative” (Koos Decl. ¶ 34, Exhibit 17), and “to my knowledge our Department does not have a formal process to review all abnormal fetal heart rate records . . . To my knowledge, the residents, maternal-fetal medicine fellows and faculty have yet to understand why there was such a poor outcome in the case” (Koos Decl. ¶ 32, Exhibit 14.) Defendant argues the foregoing does not indicate a disclosure as to patient safety because, among other reasons, Plaintiff communicated his “strong belief that appropriate care was given” by Defendant’s personnel. (Koos 0171.) However, such statements merely go to the weight of the evidence and are not dispositive. (See, e.g., Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541 [“the task of disambiguating ambiguous utterances is for trial, not for summary judgment.”].)

Defendant also argues that Plaintiff cannot demonstrate causation for the purposes of a prima facie case under Health & Saf. Code § 1278.5(b)(1)(A) because Defendant initiated its investigation as to Plaintiff and drafted an initial finding that Plaintiff engaged in privacy violations prior to Plaintiff’s purported April 2018 disclosures. However, this too merely goes to the weight of the evidence as adverse action was first taken in June/July 2018 when specific disciplinary action was initiated for Plaintiff. (Defendant’s Separate Statement of Undisputed Fact ¶¶ 37-38.) Defendant’s cited authority merely provides that temporal proximity alone is insufficient to establish pretext, especially when adverse action was contemplated before protected activity. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353.) Additionally, the facts here are distinguishable from those in Clark Cty. Sch. Dist. v. Breeden (2001) 532 U.S. 268, 272 in which the ultimate adverse action—a transfer—was contemplated before the protected disclosure. Here, while the Office of Compliance Services had concluded that Plaintiff violated HIPAA as well as Defendant’s policies, there was no specific adverse action contemplated in its initial report. (Defendant’s Evidence (“DE”), Exhibit J.)

Defendant also argues that there can be no causation for Plaintiff’s claim under Health & Saf. Code §§ 1278.5(b)(1)(A), 1278.5(b)(1)(B) because there was no knowledge by the decisionmaker—the Medical Staff Executive Committee (“MSEC”)—that Plaintiff had made a protected disclosure or engaged in an investigation as to the quality of care at Defendant’s facility. However, as Defendant admits, MSEC had knowledge of Plaintiff’s April 26, 2018, letter which, as explained above, could be interpreted as indicating a patient safety concern/investigation. Defendant’s evidence that MSEC did not consider this letter to be protected activity highlights a factual dispute in relation to Plaintiff’s testimony.

The Court concludes that Plaintiff has carried his burden to demonstrate a prima facie case of retaliation to the extent disciplinary action was taken within 120 days of Plaintiff’s protected activity. (See, e.g., Health & Saf. Code § 1278.5(d)(1); see also Hypolite v. City of Houston, Tex. (5th Cir. 2012) 493 Fed. Appx. 597; Booth v. D.C. (D.D.C. 2010) 701 F.Supp.2d 73, 79.)

The Court also concludes that Defendant has carried its burden to demonstrate a legitimate basis for Plaintiff’s discipline. For example, Defendant states, “it is undisputed that four separate and independent bodies-the OCS, MSEC, Hearing Committee, and the Appeal Board-each consisting of a different group of individuals, concluded Plaintiff committed privacy violations. (UF 48.) First, CCO Kang, who has a duty to investigate privacy breaches, properly concluded the evidence he gathered during his investigation of Plaintiff revealed he violated established University policies, Medical Staff Bylaws and federal privacy laws. (UF 3, 4, 7, 9-26.) Second, the MSEC issued its Notice of Proposed Actions after analyzing the evidence presented in the OCS report, Plaintiffs interview with Dr. Lerner and Dr. Harrison, and the April 26, 2018 letter from Plaintiff to Dr. Lerner. (UF 27- 38, 48.) Notably, the Committee acknowledged that Plaintiff admitted to the conduct that amounted to a violation and initially apologized for his actions to Dr. Krakow in an email sent on April 20, 2018. (UF 19, 35.) The minutes from the June 28, 2018 MSEC meeting reflect the thoughtful and detailed analysis the MSEC went through in deciding whether privacy violations occurred and the severity of the violations to determine reasonable corrective actions. (UF 35; MSEC Meeting Minutes, Ex. A to NOL.) Lastly, the Hearing Committee and the Appeal Board, two entirely separate panels of physicians from several UCLA departments, considered the MSEC actions and found they were reasonable, supported by the evidence and in line with UCLA policies governing Plaintiffs privacy breach. (UF 3, 41-47.)” (MSJ at pp. 23-24.)

In turn, Plaintiff has carried his burden to demonstrate pretext. Taken together, the following evidence is sufficient: (1) Plaintiff was employed by Defendant for thirty years (Koos Decl. ¶ 6); (2) disciplinary action was taken against Plaintiff approximately two months after his purported protected activity; and (3) there was no violation of HIPAA because—if Plaintiff’s factual narrative is believed—Plaintiff’s conduct fell within the healthcare operations exception to HIPAA (45 C.F.R. § 164.506(c)(4)(i) [“A covered entity may disclose protected health information to another covered entity for health care operations activities of the entity that receives the information, if each entity either has or had a relationship with the individual who is the subject of the protected health information being requested, the protected health information pertains to such relationship, and the disclosure is: (i) For a purpose listed in paragraph (1) or (2) of the definition of health care operations . . . .”]; 45 C.F.R. § 164.501 [“Health care operations means any of the following activities of the covered entity to the extent that the activities are related to covered functions: (1) Conducting quality assessment and improvement activities, including outcomes evaluation and development of clinical guidelines, provided that the obtaining of generalizable knowledge is not the primary purpose of any studies resulting from such activities; patient safety activities (as defined in 42 CFR 3.20) . . . .”]; 42 C.F.R. § 3.2 [“Patient safety activities means the following activities carried out by or on behalf of a PSO or a provider: (1) Efforts to improve patient safety and the quality of health care delivery . . . .”].) Indeed, “temporal proximity, together with the other evidence, may be sufficient to establish pretext.” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 354.)

Defendant argues that Plaintiff has failed to show that he did not violate Defendant’s medical policies which are broader than HIPAA. Defendant specifically points to HS 9401 to argue that the definition of “protected health information” (“PHI”) includes “all information contained in patient medical records[,] regardless of format . . . These confidentiality protections extend not only to the patient’s medical record, but also to information from the record.” (DE, Exhibit E.) Defendant contends that HS 9401 was violated when Plaintiff allowed a third-party unrelated to UCLA—Dr. Schifrin—to view the PHI of a UCLA patient within a restricted area of UCLA’s hospital.

However, PHI must include “individually identifiable” information, or information “sufficient to allow identification of the individual . . .” (HS 9401), and Plaintiff points to evidence that at the time of the subject incident he and Schifrin were standing in such a position that while they could view the subject patient’s fetal heart monitor, they could not view the patient’s identifying information. (Koos Decl. ¶ 25.)

In sum, Plaintiff has shown triable issues of fact as to his retaliation claim such that the Motion for Summary Judgment is denied.

On the other hand, the Motion for Summary Adjudication is granted as to the issue of punitive damages which cannot be obtained against a public entity such as Defendant. (Gov. Code § 818.)[2] [3]

[1] Health & Saf. Code § 1278.5(b)(1)(A) prohibits retaliation for a grievance, complaint, or report as to the quality of patient care. (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 667 fn. 6.)

[2] Plaintiff’s Opposition does not address the issue of punitive damages.

[3] The objections to the evidence cited herein are overruled. All other objections are overruled as immaterial. (Code Civ. Proc. § 437c(q).)