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Grant v. Alperovich

United States District Court, Ninth Circuit

January 21, 2014



ROBERT S. LASNIK, District Judge.


This matter comes before the Court on "Defendant St. Francis Hospital - Franciscan Health System's Motion for Summary Judgment of Dismissal" (Dkt. # 53) and "Motion for Summary Judgment of Defendant Claudio Gabriel Alperovich, M.D." (Dkt. # 55). Because Plaintiff seeks to hold St. Francis Hospital-Franciscan Health System ("St. Francis") vicariously liable for Dr. Claudio Alperovich's alleged misconduct, the Court considers both parties' motions in this Order.

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact that would preclude the entry of judgment as a matter of law. L.A. Printex Indus., Inc. v. Aeropostale, Inc. , 676 F.3d 841, 846 (9th Cir. 2012). The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion, " Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), and identifying those portions of the materials in the record that show the absence of a genuine issue of material fact, Fed.R.Civ.P. 56(c)(1). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to identify specific factual disputes that must be resolved at trial. Hexcel Corp. v. Ineos Polymers, Inc. , 681 F.3d 1055, 1059 (9th Cir. 2012). The mere existence of a scintilla of evidence in support of the non-moving party's position will not preclude summary judgment, however, unless a reasonable jury viewing the evidence in the light most favorable to the non-moving party could return a verdict in its favor. United States v. Arango , 670 F.3d 988, 992 (9th Cir. 2012).

Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:[1]


A. Background Facts

Plaintiff first met Dr. Claudio Alperovich in March 2009, when he evaluated her for possible gastric bypass surgery. Dkt. # 55-2 at 2. Dr. Alperovich performed the surgery on Plaintiff on June 17, 2009, at St. Francis in Federal Way, Washington. Id. at 10-14. Although it is somewhat unclear who Dr. Alperovich's employer was at the time of Plaintiff's surgery, it is undisputed that Dr. Alperovich had surgical privileges at St. Francis. Shortly after surgery, Plaintiff was treated for an oral yeast infection and in July 2009, she was admitted to St. Francis due to complaints regarding nausea, vomiting, and dehydration. Id. at 18. An endoscopy revealed a hernia and inflammation, neither one of which was believed to be causing her nausea and vomiting. Id. at 21. There were no signs of leakage or obstruction related to her surgery. Id . CT scans and blood tests were normal, but Plaintiff still complained that she was unable to tolerate even water. Id. at 18.

Dr. Alperovich continued overseeing Plaintiff's post-operative care and recovery until September 2009. Dkt. # 50-1 at 7; Dkt. # 55-2 at 23. Despite seeking additional treatment from several other providers at other facilities, Plaintiff was still not satisfied with the care she received. In winter of 2010, she sought an evaluation from Dr. Elliott Goodman, a surgeon in New York. Dkt. # 1-1 at 14. Dr. Goodman performed corrective surgery to address Plaintiff's ongoing pain, nausea and vomiting in February 2010. Dkt. # 1-1 at 3-5.

B. Procedural History

On June 15, 2012, Plaintiff sued Dr. Alperovich and St. Francis (collectively "Defendants") and the other named defendants for negligence and medical malpractice in King County Superior Court. Dkt. # 55-2 at 33-43. Plaintiff's claims against Defendants were dismissed by the state court on November 9, 2012. Dkt. # 53-1 at 16-18, 20-22.

Plaintiff filed this lawsuit the same day she filed her state court action. Dkt. # 1. On February 21, 2013, all but two defendants filed dispositive motions in this case. Dkt. # 50; Dkt. # 53, Dkt. # 54, Dkt. # 55, Dkt. # 59, Dkt. # 61. Recognizing that "[r]esponding to six dispositive motions on the same day would be a daunting task for a licensed attorney, much less a plaintiff appearing pro se, " the Court granted Plaintiff's request for additional time in which to respond to the motions and renoted defendants' dispositive motions. Dkt. # 82.

One week after defendants filed their dispositive motions, Plaintiff sought leave to file a third amended complaint. Dkt. # 62. In her third amended complaint, Plaintiff asserts that defendants violated (1) Title II and Title III of the Americans with Disabilities Act ("ADA"); (2) Title II, Title VI, and Title XI of the Civil Rights Act; (3) the Age Discrimination Act of 1975; (4) the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and (5) the Mental Health Bill of Rights, 42 U.S.C. § 9501. Id. at 3-4. Under the liberal pleading standard afforded pro se plaintiffs, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), Plaintiff's third amended complaint also appears to assert claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, as well as claims of libel, slander, defamation, and health care fraud. Dkt. # 62. While Plaintiff's third amended complaint is not a model of clarity, Plaintiff appears to pursue her claims against St. Francis based on theories of both direct liability and vicarious liability for Dr. ...

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