Martin Hernandez Banderas v. The United States of America et al
Filing
90
MINUTE ORDER (IN CHAMBERS): Findings of Fact and Conclusions of Law Following Bench Trial by Judge Philip S. Gutierrez: A bench trial was held in this matter between May 1, 2012 and May 8, 2012. Dkts. # 77,80, 84, 89. After considering the evidence o ffered at trial, the arguments of the parties, and the relevant law, the Court finds the United States is liable under the Federal Tort Claims Act. Specifically, the Court finds the United States liable for medical negligence in the care of Plaintiff Martin Hernandez Banderas ("Plaintiff" or "Banderas"). However, the Court finds the United States is not liable for intentional infliction of emotional distress. For the claim of medical negligence, the Court awards Plaintiff da mages of $250,000....the Court finds Plaintiff has proven a claim for medical negligence under the FTCA. Plaintiff has not proven a claim for IIED under the FTCA. Plaintiff is awarded damages of $250,000 against the United States for the me dical negligence claim. Plaintiff is ordered to submit a proposed judgment consistent with this order by June 12, 2012. re: Bench Trial - Begun, 77 , Amended Minutes, 80 , Amended Minutes, 89 , Bench Trial - Completed 84 . (PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) (lw)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Martin Hernandez Banderas v. United States
Present:
Date
May 29, 2012
The Honorable Philip S. Gutierrez, United States District Judge
Wendy K. Hernandez
Deputy Clerk
Not Present
Court Reporter
Attorneys Present for Plaintiff(s):
Attorneys Present for Defendant(s):
Not Present
Proceedings:
n/a
Tape No.
Not Present
(In Chambers) Findings of Fact and Conclusions of Law Following
Bench Trial
A bench trial was held in this matter between May 1, 2012 and May 8, 2012. Dkts. # 77,
80, 84, 89. After considering the evidence offered at trial, the arguments of the parties, and the
relevant law, the Court finds the United States is liable under the Federal Tort Claims Act.
Specifically, the Court finds the United States liable for medical negligence in the care of
Plaintiff Martin Hernandez Banderas (“Plaintiff” or “Banderas”). However, the Court finds the
United States is not liable for intentional infliction of emotional distress. For the claim of
medical negligence, the Court awards Plaintiff damages of $250,000.
I.
Procedural History
On October 7, 2009, Plaintiff filed a complaint against the United States, Esther Hui,
Timothy Shack, and Gene Migliaccio. Dkt. # 1. The Complaint asserted nine causes of action.
Compl. ¶¶ 112-176. The first seven causes of action were brought against the United States
under the Federal Tort Claims Act (“FTCA”). These claims were for medical negligence,
negligent establishment of policy for providing medical care to immigration detainees, negligent
application of policy for providing medical care to immigration detainees, negligent
hiring/retention, negligent supervision, negligent training, and intentional infliction of emotional
distress (“IIED”). In addition, Plaintiff brought two Bivens claims for inadequate medical care
and violation of the Equal Protection Clause of the Fourteenth Amendment. These latter two
causes of action were brought against Hui, Shack, and Migliaccio.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
On March 17, 2009, the parties agreed to stay the Bivens claims pending the resolution of
the petition for certiorari from the Ninth Circuit’s decision in Castaneda v. United States, 546
F.3d 682 (9th Cir. 2008). Dkt. # 20. After the Supreme Court decision in Hui v. Castaneda, 130
S. Ct. 1845 (2010), the parties agreed to dismiss the Bivens claims with prejudice. Dkt. # 27.
In a pretrial filing, Plaintiff explicitly abandoned the Fourth and Sixth Causes of Action.
Proposed Final Pretrial Conference Order, Dkt. # 55, at 1. In addition, Plaintiff omitted any
mention of his Fifth Cause of Action, and the Court deems this Cause of Action to have likewise
been abandoned.
Finally, before the start of the trial, Plaintiff withdrew his Second and Third Causes of
Action. The case then proceeded to trial solely on the First Cause of Action under the FTCA for
medical negligence and the Seventh Cause of Action under the FTCA for IIED.
II.
Factual Findings
Considering all of the evidence presented at trial, the Court makes the following factual
findings. Beginning on October 25, 2006, Plaintiff was detained at the San Diego Correctional
Facility (“SDCF”) by United States Immigration and Customs Enforcement (“ICE”). Upon
entry into SDCF, Plaintiff underwent an initial medical screening. At this screening, Plaintiff
did not report any health problems. Trial Ex. 200 at 26-29.1 On November 3, physician assistant
Anthony Walker (“Walker”) examined Plaintiff. At that exam, Plaintiff reported feeling "pretty
good" and denied any history of diabetes. Id. at 35-36. Walker observed Plaintiff's overall
condition was good and evaluated the condition of Plaintiff’s extremities as normal. Id.
About five weeks later, on December 12, Plaintiff was seen by Walker and by Esther Hui,
M.D. Walker noted that Plaintiff reported “my toes have been numb for about 8 months but I
don’t know if I have diabetes.” Id. at 46. Walker, wrote: “obvious eschar to right medial
malleolous, right great toe with severe charred effect and purulent drainage with palpation and
expression. Smell to foot. [Patient] only has pain to touch to upper part of ankle but otherwise
lower foot is numb to touch. Pulses intact.” Id. at 46. In the videotaped deposition introduced
at trial, Walker claimed that Plaintiff’s foot “smelled like death.” Walker Depo. 55:9. However,
1
Trial Exhibit 200 was Plaintiff’s medical charts recorded during his time at SDCF. Both
physician assistant Anthony Walker and Dr. Esther Hui authored entries in the charts. Each
chart entry notes the author of that particular entry.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
the Court notes that Walker did not record this observation in the chart. After examining
Plaintiff, Walker assessed a “new diagnosis of diabetes from clinical impression, right foot
cellulitis with evidence of mild gangrene to the end of right toe.” Trial Ex. 200 at 46.
On the same day, Dr. Hui examined Plaintiff and made the following observations: “R big
toe w/ darkened eschar on distal tip and evidence of fluctuance tracking medially, small amount
of pus expressed; R medial ankle w/ 1cm eschar, erythema and warmth, decreased ROM of
ankle, tender R shin ulcerated w/eschar without evidence of erythema; Smells anaerobic in
nature.” Id. at 39. Based on these observations, Dr. Hui diagnosed Plaintiff “w/ cellulitis,
abscess of toe.” Dr. Hui ordered monitoring of Plaintiff’s blood sugar, X-rays of Plaintiff’s foot,
as well as debridement and continual dressing changes of the affected area. Id. Dr. Hui also
prescribed antibiotics and admitted Plaintiff into SDCF’s medical unit as an inpatient. Id. At
trial, Dr. Hui testified she took a wound culture at this time, but there is no evidence in the chart
to document the event.
From December 12 through 20, Plaintiff remained in inpatient care. Dr. Hui’s trial
testimony and charting reflect her perception that Plaintiff’s condition was improving during this
time. On December 16 and 17, Walker reported Plaintiff's condition as “healing slowly but with
notable progression.” Id. at 166, 172. Similarly, on December 18, Dr. Hui observed
improvement and noted that Plaintiff “states that he is fine.” Id. at 177.
In contradiction to Dr. Hui’s testimony and the observations contained in the charts,
Walker testified that Plaintiff was not receiving intravenous antibiotics or dressing changes at
this time. Walker Depo. 85:26-86:6, 85:12-17, 87:23-88:1. Walker asserted that on December
15, Plaintiff’s ankle started “doing some weird things . . . it just burst, blew open.” Id. 85:25 to
86:1. Walker states the wound became “spongy.” Id. 92:15. Furthermore, Walker alleges he
watched Dr. Hui debride Plaintiff’s foot using the same disposable suture removal set day after
day, even though there was no shortage of suture removal kits at the facility. Id. 131:5-132:10.
Walker testified that he was not comfortable with the treatment that Plaintiff was receiving and,
as a result of his discomfort, Walker “started trying to distance [himself] from th[e] case.” Id.
85:19-86:7. Nonetheless, Walker continued to be involved in Plaintiff’s care. The Court also
notes that Walker did not record any of the above observations in the medical records. To
explain the lack of a record for these observations, Walker testified that Dr. Hui often told him
what to write in the charts and that he would often copy and paste previous entries. Id. 130:3-19.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
On December 20, Plaintiff was returned to the general population. Initially, the medical
records document Plaintiff’s continued improvement. Walker noted on December 22 “right
lower leg medial aspect healing slow but well, right great toe looks real good and almost
completely healed . . . [Patient] educated that nerve endings are coming back to life and that is
the reason for more pain at this time.” Trial Ex. 200 at 200. On December 26, Walker and Dr.
Hui both reported improvement. Id. at 70-71. Again, on December 27 and 28, Walker
optimistically wrote “healing well” and “right foot looks really well.” Id. at 73-77. While the
January 10 notation reported more leakage and a strong odor, Dr. Hui continued to chart
“cellulitis resolved” up until January 11. Id. at 89, 90, 94, 100, 103, 105.
Despite having charted an improving condition for Plaintiff, Walker testified that
Plaintiff’s situation was in fact quite bleak at this point. Contradicting his recorded observations,
Walker testified that sometime toward the end of December the right foot “blew up.” Walker
Depo. 92:8. Walker described it as follows:
Just orange fluid. It was -- smelled really nasty, again, like death . . . It was real spongy.
When you probed it, it was like the tissues underneath were like soup and the top layer
was -- have you ever had a real good French onion soup where they kind of put
mozzarella cheese on the top and you kind of push on the cheese and the cheese . . . like
there was just all this fluid underneath.
Id. 92:13-22.
The earlier discrepancies notwithstanding, both Dr. Hui and Walker’s accounts concur
that Plaintiff’s medical condition further deteriorated after January 11. Walker's notes from
January 12 through 15 consistently state “dressing soaked.” Trial Ex. 200 at 109, 110, 114, 120.
On January 16, Dr. Hui’s charting describes conditions not seen previously:
S: [Patient] states that it started bleeding more yesterday . . .
O: 10 x 5 cm ulcerated area of tissue . . .
P: [M]ay need to be sent to ER if we cannot find an appt ASAP.
Id. at 122.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
On January 17, the government transported Plaintiff to an outside facility for treatment.
Later that day, Walker recorded “a very foul odor, areas that are deteriorating quickly into
necrosis and there may be some underlying necrotic tissue that this clinic is not able to manage
or debride. His blood sugars have been increasing even though he is on insulin. He was sent to
the Paradise Valley Wound clinic here in San Diego this am, then re-routed to the ER for more
intensive and potential surgical consult for debridement.” Id. at 125.
Upon Plaintiff’s admittance to Paradise Valley, hospital personnel observed “a 14 x 5.5 x
1 cm wound which is covered entirely with foul smelling, necrotic material” and diagnosed:
1.
Wagner grade 4 diabetic right ankle ulcer with underlying osteomyelitis.
2.
Wagner grade 4 diabetic right great toe ulcer.
3.
This places the patient at high risk for sepsis, need for amputation and even death.
4.
The patient’s wound healing will be impaired by anemia, depleted protein stores
and severe infection with underlying osteomyelitis.
5.
Necrotic tissue requires debridement to allow for further drainage of the wound.
6.
Patient requires further vascular evaluation given absent distal pulses and the
presence of gangrene.
Trial Ex. 76 at 240.
Plaintiff remained hospitalized from January 17 to March 6. The discharge summary
outlines Plaintiff’s hospitalization course:
Dr. Sanzone evaluated for possible amputation; however, the patient refused. In an
attempt to salvage the area, Dr. Otero was consulted. Dr. Otero took the patient for deep
debridement of the gangrenous ulcer of the right foot and ankle with cauterization of the
inner malleolus and excision of the necrotic soft bone. Pathology reports confirmed
chronic osteomyelitis. The patient had continued with wound VAC. After several weeks
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
of antibiotics, Dr. Otero went back in and did further debridement and split-thickness skin
grafting. The patient completed his full course of antibiotics.
Id. at 242.
Having summarized the relevant trial testimony and exhibits, the Court returns to the
discrepancies that have been noted between the trial testimony and the medical records. Both
Dr. Hui and Walker’s testimony contradicted various aspects of the contemporaneously recorded
chart entries. For example, according to Walker, Plaintiff’s wound “blew up” sometime in
December, but this was not recorded in any of the chart entries. As another example, Dr. Hui
claimed to have taken a wound culture in early December, but this was also not recorded in the
charts. Based on an evaluation of the witness’ testimony and the contemporaneous chart entries,
the Court finds that any testimony not confirmed by the charts is not credible.
Turning to the expert testimony, the Court heard from three experts: Plaintiff’s experts
Richard Sokolov, M.D. and Robert Cohen, M.D. and Defendant’s expert Ty Ouzounian, M.D.
Each expert opined that Dr. Hui’s medical care fell below the standard of care that reasonable
physicians would have used in similar circumstances. However, the experts disagreed about the
date on which the care became substandard. Dr. Sokolov testified that, while it could reasonably
be argued the treatment was substandard as early as December 12, the treatment was definitively
substandard as of December 19. Dr. Cohen agreed with Dr. Sokolov’s earlier date and opined
the treatment was substandard beginning on December 12. Finally, Defendant’s own expert, Dr.
Ouzounian, concluded substandard treatment began on January 10, when Dr Hui reported a
strong smell.2 The Court finds Dr. Sokolov’s account persuasive and the Court adopts Dr.
Sokolov’s findings in toto.
Dr. Sokolov’s testimony first described various practices that a reasonable physician
would use in the treatment of a foot wound on a diabetic patient. These practices include: timely
referral of a patient to a neurologist, endocrinologist, and a vascular specialist; collection of
cultures from the wound; anti-microbial therapy; use of monitoring tools to guide infection,
particularly in a patient who is neuropathic; and glycemic control, i.e., the control of blood
sugars.
2
Notwithstanding the malpractice, Dr. Ouzounian opined that Plaintiff sustained no injury.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
After establishing the appropriate standard of care, Dr. Sokolov next offered the
following factual findings based on his review of the records. While Plaintiff was at SDCF, Dr.
Hui did not refer Plaintiff to any specialists outside of SDCF. Dr. Hui did not perform a culture
on the wound, even though a culture was crucial in deciding appropriate and optimal therapy.
Dr. Hui did not properly treat Plaintiff’s blood sugar level, which was elevated on an almost
daily basis. Dr. Hui did nothing more than visual inspection and palpitation to ensure the
infected foot’s vascular system was performing correctly. Dr. Hui did not order any crosssectional or three-dimensional imaging of the affected area. Dr. Hui did not seek a consultation
to determine the amplitude or the extent of Plaintiff’s neuropathy. Finally, Dr. Hui simply
continued Plaintiff on an antibiotic program even though laboratory tests showed the infection
was worsening.
After discussing his factual determinations, Dr. Sokolov opined that Dr. Hui's treatment
of Plaintiff fell below the reasonable standard of care as of December 19. Dr. Sokolov expressed
his belief that one could reasonably argue that Plaintiff should have been hospitalized as early as
December 12 – as Plaintiff’s other expert, Dr. Cohen, argued – but that as of December 19
reasonable physicians would definitively agree that Plaintiff needed to be hospitalized
immediately and started on a much more aggressive course of treatment. Dr. Sokolov based his
opinion on various aspects of Plaintiff’s condition as of December 19: a white blood cell count
of 19,000, when the normal upper limit is 10,500; the presence in Plaintiff’s blood of band
forms, which are immature types of white blood cells that appear when the body is stressed and
is recruiting even the youngest white blood cells to assist in fighting infection; and a hemoglobin
A1c of 10.4, when a normal A1c is close to 6.
Dr. Sokolov concluded his testimony by addressing Plaintiff’s injuries and the cause of
those injuries. If Dr. Hui had hospitalized Plaintiff on December 19, the hospital stay could have
been minimized and the treatment could have been completed in one to two weeks. Instead,
Plaintiff was hospitalized for 48 days. Therefore, Dr. Sokolov concludes Plaintiff’s
hospitalization was somewhere between 34 to 41 days longer than necessary. Furthermore, Dr.
Sokolov opined that if Plaintiff had been hospitalized on December 19, he would not have
needed a skin graft.
III.
Legal Conclusions
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
Plaintiff argues the facts prove two causes of action under the FTCA: one for medical
negligence and one for IIED. To be cognizable under the FTCA, a claim must arise from the
negligent or wrongful act of a government employee acting within the scope of his or her
employment “under circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b); Sheridan v. United States, 487 U.S. 392, 398 (1988). The acts and omissions
at issue in this case occurred in California and, therefore, California law applies to Plaintiff’s
claims of medical negligence and IIED.
a.
Medical Negligence
In California, a plaintiff asserting a claim for medical negligence must establish the
following elements: “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury.” Ladd v. County of San Mateo,
12 Cal. 4th 913, 917, 50 Cal. Rptr. 2d 309 (1996) (quotation marks omitted). A physician is
negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and
treatment that other reasonably careful physicians would use in the same or similar
circumstances. Mann v. Cracchiolo, 38 Cal. 3d 18, 36, 210 Cal. Rptr. 762 (1985).
Medical negligence claims in California are subject to the Medical Injury Compensation
Reform Act of 1975 (“MICRA”). Hoffman v. United States, 767 F.2d 1431, 1433 (9th Cir.
1985). MICRA places a $250,000 cap on non-economic damages in “an action for injury
against a health care provider based on professional negligence.” Cal. Civ. Code § 3333.2(b).
The statute defines professional negligence, in relevant part, as “a negligent act or omission to
act by a health care provider in the rendering of professional services, which act or omission is
the proximate cause of a personal injury or wrongful death.” Cal. Civ. Code § 3333.2(c)(1).
While the California Supreme Court has not squarely addressed whether non-economic damages
stemming from intentional conduct that occurs in the course of providing medical services could
be capped under MICRA, see Barris v. County of Los Angeles, 20 Cal. 4th 101, 115, 972 P.2d
966 (1999) (declining to address the issue), several districts of the California Court of Appeal
have held that MICRA does not apply to intentional conduct. See Perry v. Shaw, 88 Cal. App.
4th 658, 668, 106 Cal. Rptr. 2d 70 (2001) (holding MICRA limitations did not apply to a claim
for battery stemming from medical procedure); Unruh-Haxton v. Regents of Univ. of Cal., 162
Cal. App. 4th 343, 355-56, 76 Cal. Rptr. 3d 146 (2008) (holding MICRA’s statute of limitations
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
did not apply to claims of fraud, conversion, and IIED related to wrongful intentional conduct in
a medical procedure).
b.
Intentional Infliction of Emotional Distress
To establish a claim for IIED, a plaintiff must prove the following: “(1) extreme and
outrageous conduct by the defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional distress by the
defendant's outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050-51, 95 Cal. Rptr. 3d
636 (2009) (quotation marks omitted).3
As to the first element, a defendant's conduct is outrageous when it is so “extreme as to
exceed all bounds of that usually tolerated in a civilized community.” Id. at 1051 (quotation
marks omitted). The defendant's conduct must also be “intended to inflict injury or engaged in
with the realization that injury will result.” Id. (quotation marks omitted). In determining
outrageousness, the following factors may be considered: whether a defendant “(1) abuses a
relation or position that gives him power to damage the plaintiff’s interests; (2) knows the
plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or
unreasonably with the recognition that the acts are likely to result in illness through mental
distress.” Molko v. Holy Spirit Ass’n, 46 Cal. 3d 1092, 1122, 252 Cal. Rptr. 122 (1988)
(quotation marks omitted), superseded by statute on other grounds as stated in 25 Cal. 4th 826.
3
The government argued in a pretrial brief that Plaintiff cannot pursue his claim for IIED under
the FTCA. While the Court’s ruling on Plaintiff’s IIED claim ultimately makes this issue moot,
the Court disagrees with the government’s position. Certain intentional torts may not be brought
under the FTCA, but IIED is not one of these precluded torts. The precluded torts are expressly
limited to the following: “assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with
contract rights.” 28 U.S.C. § 2680(h). As the Ninth Circuit has explained, an IIED claim may
be pursued under the FTCA when the claim does not arise out of any of the enumerated torts
above. Sheehan v. United States, 896 F.2d 1168, 1172 (9th Cir. 1990). Here, Plaintiff’s IIED
claim does not arise from assault or battery or any of the other precluded torts under 28 U.S.C. §
2680(h).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
Additionally, under the first element of IIED, a defendant may be found to have acted
with reckless disregard in causing a plaintiff emotional distress if a defendant “devoted little or
no thought to [the] probable consequences of his conduct.” See KOVR-TV, Inc. v. Super. Ct., 31
Cal. App. 4th 1023, 1031-32, 37 Cal. Rptr. 2d 431 (1995).
For the second element of IIED, severe emotional distress has been defined as “emotional
distress of such substantial quantity or enduring quality that no reasonable man in a civilized
society should be expected to endure it.” Girard v. Ball, 125 Cal. App. 3d 772, 788, 178 Cal.
Rptr. 406 (1981) (quotation marks omitted).
IV.
Discussion
The Court finds Plaintiff has proven a case of medical negligence. Dr. Hui failed to use
the level of skill, knowledge, and care in diagnosis and treatment that a reasonably careful
physician would have used in similar circumstances. See Mann, 38 Cal. 3d at 36. The care was
substandard as of December 19. This substandard care injured Plaintiff and caused him to suffer
damages. Dr. Hui’s acts of negligence were within the scope of her employment for the United
States, and thus the United States is liable for her negligent actions under the FTCA. See 28
U.S.C. § 1346(b).
The Court finds Plaintiff has not proven a case for IIED. While the care for Plaintiff
provided at SDCF was certainly substandard, the conduct of the government officials at SDCF
was not so “extreme as to exceed all bounds of that usually tolerated in a civilized community.”
Hughes, 46 Cal. 4th at 1051. The Court finds that although Dr. Hui’s decisions in regards to
Plaintiff’s medical care were poor, Dr. Hui was attempting to improve Plaintiff’s condition. She
monitored his blood sugar, took X-rays, debrided the affected area, and ordered continual
dressing changes. She also prescribed antibiotics and admitted Plaintiff as an inpatient in
SDCF’s medical unit. And, for a period of time, Plaintiff’s condition appeared to be improving.
Ultimately, the care Dr. Hui provided fell below the standard for due care, but the Court cannot
say that Dr. Hui’s care was “extreme and outrageous conduct [ ] with the intention of causing, or
reckless disregard of the probability of causing, emotional distress.” Id. at 1050.
The Court now turns to the damages due Plaintiff under his medical negligence cause of
action. Plaintiff limits his damages to general damages and does not seek any special damages,
such as medical expenses or loss of earnings. See Plt.’s Mem. of Contentions of Law and Fact at
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 08-6594 PSG (CTx)
Title
Date
May 29, 2012
Martin Hernandez Banderas v. United States
17:6-28. The Court finds Plaintiff suffered substantial and preventable pain and suffering after
December 19. The Court credits Plaintiff’s testimony regarding the tremendous anxiety he
suffered when he feared he would lose his lower leg to amputation. The Court also finds
credible Plaintiff’s testimony regarding the pain he still suffers and his resulting physical
limitations. The Court viewed the horrendous scar on Plaintiff’s leg, which essentially looks like
a shark bit off a piece of Plaintiff’s leg. As Dr. Sokolov opined, Plaintiff’s treatment could have
ended in December, but instead Plaintiff’s ordeal continued into March.
However, congruent with the Court’s findings on the IIED claim, the Court finds that Dr.
Hui’s actions were not intentional, but rather negligent. As such, Plaintiff’s case is “an action
for injury against a health care provider based on professional negligence,” and must fall within
the MICRA limitations. See Cal. Civ. Code § 3333.2(b). To be clear, Plaintiff’s pain and
suffering at SDCF and Paradise Valley, his anxiety caused by potential amputation, his current
pain and limitations, and the scarring from the skin graft warrant an award substantially over the
MICRA limits. Nonetheless, this claim falls squarely within MICRA’s provisions.
Accordingly, the Court awards Plaintiff damages of $250,000.
IV.
Conclusion
For the foregoing reasons, the Court finds Plaintiff has proven a claim for medical
negligence under the FTCA. Plaintiff has not proven a claim for IIED under the FTCA.
Plaintiff is awarded damages of $250,000 against the United States for the medical negligence
claim. Plaintiff is ordered to submit a proposed judgment consistent with this order by June 12,
2012.
IT IS SO ORDERED.
IR for WH
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