Reported / Citable
Background
In September 2015, Jessica Sobalvarro suffered a serious hemorrhagic stroke at age 34 that left her unable to move or speak. She was eventually transferred to Kentfield Hospital, an acute care rehabilitation hospital owned by Vibra Health Care, where she stayed for about six months. Sobalvarro communicated only by blinking initially, later using a letter board with her medical decision-maker, attorney Paul Kranz. Because of her paralysis and incontinence, she required intimate physical care, including pericare, from nursing staff. Kene Orleans, a male certified nursing assistant, was among those providing that care.
After her discharge, Sobalvarro reported to Kranz that she had been sexually assaulted by Orleans during her stay at Kentfield. She sued Orleans, Kentfield, and Vibra for assault, battery, negligence, and dependent adult abuse. After a jury trial, the jury found Sobalvarro had not proved her claims against Orleans personally but found Kentfield and Vibra negligent. The jury awarded her $1 million in non-economic damages.
Kentfield and Vibra moved for judgment notwithstanding the verdict (JNOV), arguing that without finding Orleans liable, there was no causal nexus between any negligence by the hospital and Sobalvarro’s injury. The trial court granted the JNOV. Sobalvarro appealed.
The Court’s Holding
The First District Court of Appeal, Division Two, reversed and ordered the trial court to reinstate the original judgment. The court held that the jury had a sound legal theory of negligence to support its verdict. That theory was that Kentfield and Vibra had a duty to ask paralyzed female patients (or their decision-makers) whether they preferred care by a female nursing assistant for intimate tasks like pericare and bed baths, and a related duty to honor that preference if it could reasonably be accommodated. By failing to ask Sobalvarro’s designated decision-maker about her preferences and by assigning a male nursing assistant to provide her intimate care without inquiring, the hospital breached its duty.
The jury could reasonably find that the breach caused Sobalvarro emotional distress regardless of whether Orleans actually committed the alleged sexual assault. Being unable to communicate, paralyzed, and dependent on a male caregiver for intimate care can cause emotional distress on its own when no choice was offered. The standard of review on a JNOV requires the court to view the evidence in the light most favorable to the verdict and to disregard contrary evidence; the trial court erred by reaching a contrary conclusion.
The court rejected the argument that expert testimony was required to establish causation. While professional medical malpractice generally requires expert testimony on causation, this was not a malpractice claim about treatment decisions. It was a hospital-services negligence claim about offering choice in caregiver gender for intimate care. Lay jurors are well-equipped to evaluate whether the failure to offer that choice caused emotional distress, particularly given the patient’s vulnerability.
Key Takeaways
- Hospitals may have a duty to ask paralyzed female patients (or their decision-makers) whether they prefer female nursing staff for intimate care like pericare, and to honor that preference when reasonably possible.
- The jury may find a hospital negligent for failing to offer that choice, even if no sexual assault by the assigned caregiver is proved.
- Expert testimony is not required to establish causation in negligence claims based on emotional distress from being denied caregiver choice for intimate care.
- JNOV is appropriate only when there is no substantial evidence to support the verdict; courts must view the evidence in the light most favorable to the prevailing party.
- Hospitals should review their intake procedures to document patient and decision-maker preferences regarding caregiver gender for intimate care.
Why It Matters
This decision recognizes a meaningful duty for acute care and rehabilitation hospitals to consider patient preferences for caregiver gender in intimate care situations. It is a particularly important development for severely disabled patients who cannot easily communicate their preferences without prompting. Hospitals should consider amending their intake procedures and care plans to document these preferences and honor them when feasible.
For plaintiffs’ lawyers handling cases involving alleged misconduct by caregivers, the opinion provides an alternative theory of recovery that does not depend on proving the alleged misconduct itself. Even when juries do not credit the assault allegations, an underlying institutional negligence claim about caregiver assignment can support a substantial damages award. Defense lawyers should expect more cases pleaded with parallel theories.