Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Aurora Vista del Mar is a psychiatric hospital in Ventura, California. Three of Aurora’s former patients sued the hospital in 2015 for sexual assault, emotional distress, and failure to protect them under the Elder Abuse Act.
The allegations: The rapist you hired raped us.
The damages awarded: You read the headline, didn’t you?
In California, noneconomic (pain and suffering) med-mal damages are (often) capped at $250,000. It’s been that way for decades. In this instance, that ceiling crumbled.
The case is a roller coaster. Let’s start with the perpetrator – Juan Valencia – known as “Rapey Juan” to his coworkers.
In 2011, Aurora hired Juan Valencia as an unlicensed mental health worker. Police arrested Mr. Valencia in 1989 for numerous sex crimes. Among them, sex with a minor. Aurora’s background check revealed nothing suspicious. More on that later.
In 2013, Aurora fired Valencia after a student nurse saw Valencia partying with a recently discharged patient – Danielle W.
Danielle (and two other female patients) sued Aurora in 2015 for the abuse she suffered in 2013. She is one of the three plaintiffs described in the case summary.
The obvious question: Why was a man with a history of illegal sexual behavior hired by a psychiatric hospital?
We’ll attempt to explain.
Aurora conducted a background check before hiring Mr. Valencia. But the devil is in the details. Recall Valencia’s 1989 arrests. Some of the more “serious” charges that would have landed him on the sex offender’s registry were dismissed. He pleaded guilty to the misdemeanor charge of sex with a minor – but that alone was not enough to place him on the registry at the time.
An unfortunate consequence of a ruling made decades prior. But what about the background check? Shouldn’t that have turned up something?
The answer: Yes – but it depends on the state and the hospital’s hiring practices.
Businesses use investigators to vet potential hires all the time. Healthcare networks rely on them. Some states allow consumer agencies to track their marks back to the Bronze Age. Others limit the investigators to several years.
In California, consumer agencies (like the one hired by Aurora) can only go back seven years. Aurora hired Valencia in 2011. The relevant sex crimes occurred in 1989. The arrests that would have set off alarm bells were missing in the investigator’s report.
California’s labor code forbids hospitals from asking current employees about arrests that did not end in conviction. Hospitals can, however, ask job applicants (in advance of hiring) about such arrests. The hospital argued they did not have a duty to investigate Valencia’s records beyond this seven-year window. The jury was not moved.
The take-home point: If you care for vulnerable individuals, go the extra mile when vetting prospective employees. Make sure employees are chaperoned in high-risk situations. This protects patients from abusers and protects employees from false allegations. Aurora was foreclosed by law to thoroughly probe Valencia’s criminal history after hiring him. But a deeper dive during the hiring process would have kicked him out of the hospital’s applicant pool.
Listen to your employees. If you wait until a hire becomes known as “Rapey So-And-So” before investigating a potential problem, prepare a crash helmet.
As for the case itself, there are additional twists and turns worth discussing.
Testimony described a hospital chronically understaffed. Male employees (like Valencia) could stay in a female patient’s room unsupervised for up to 20 minutes, provided the door was open. The plaintiff attorneys argued these circumstances created an environment that enabled abusers like Valencia and endangered already vulnerable patients.
Following deliberation, the jury found Aurora 65% at fault, per California’s Elder Abuse Act. The hospital appealed the verdict, stating that the Medical Injury Compensation Reform Act of 1975 should protect them from an unfavorable outcome. By way of background, the Medical Injury Compensation Reform Act (MICRA) covers acts of negligence perpetrated by licensed healthcare providers, like hospitals. Aurora claimed the lawsuits must be discarded because the plaintiffs did not file them within one year of the alleged abuse.
The appeals court opined differently. They argued MICRA covers damages caused by “professional negligence.” Because the plaintiff attorneys proved Aurora acted with “recklessness”, a higher standard allowing liability under the Elder Abuse Act, Aurora was cooked.
That sounds like “tomato-tomatoe” to the layman, but legally speaking, the difference between “professional negligence” and “recklessness” is critical.
Just how critical? Can we put a number on it? Hard to say. In this case, it was over $13 million.
What do you think? Let us know in the comments below.
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
