Preview
Lawrance A. Bohm (SBN: 208716)
Victoria L. Gutierrez (SBN: 282715)
Kyle A. Pruner (SBN: 314874)
BOHM LAW GROUP, INC.
4600 Northgate Boulevard, Suite 210
Sacramento, California 95834
Telephone: 866.920.1292
Facsimile: 916.927.2046
Attorneys for Plaintiff
ANDREI BELOROUSOU
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
ANDREI BELOROUSOU, Case No: 17CV309032
Plaintiff, SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS IN
UITE
SUPPORT OF DEFENDANT KAISER
FOUNDATION HOSPITALS’ MOTION
ALIFORNIA
OULEVARD
KAISER FOUNDATION HOSPITALS; and FOR SUMMARY JUDGMENT OR, IN
ROUP
DOES 1 through 50, inclusive, THE ALTERNATIVE, SUMMARY
ADJUDICATION OF ISSUES
Defendants.
AW
ORTHGATE
ACRAMENTO
Date: April 25, 2019
OHM
Time: 9:00 a.m.
Dept: 2
Action Filed: April 24, 2017
Trial Date: TBD
Pursuant to Rule 3.1350(c), (d), and (h), Defendant Kaiser Foundation Hospitals submits
this Separate Statement of Undisputed Material Facts in Support of its motion for summary
judgment or, in the alternative, for summary adjudication of issues. Pursuant to Rule 3.1350(d),
as amended effective January 1, 2016, this Separate Statement contains only those undisputed
facts that are pertinent to the disposition of this motion.
Plaintiff’s SSUMF n Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment r, in the Alternative, Summary Adjudication f Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV3
KAISER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON
1
BELOROUSOU’S FIRST CAUSE OF ACTION FOR RETALIATION IN VIOLATION
2 OF HEALTH AND SAFETY CODE SECTION 1278.5.
3 ISSUE 1: BELOROUSOU’S FIRST CAUSE OF ACTION FOR RETALIATION
IN VIOLATION OF HEALTH & SAFETY CODE § 1278.5 FAILS TO THE EXTENT IT IS
4 PREMISED ON DISCIPLINE CONNECTED WITH THE CRASH CART INCIDENT
BECAUSE KAISER PROFFERED LEGITIMATE NON-RETALIATORY BUSINESS
5 REASONS TO DISCIPLINE HIM AND THERE IS NO TRIABLE ISSUE AS TO PRETEXT.
6
DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
7 AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
8 During his employment with Kaiser, Undisputed.
Belorousou held a Registered Nurse
9 License issued by the State of California.
10
[Exhibit 40 to Compendium of Evidence:
11 Deposition of Andrei Belorousou
(“Belorousou Depo”) at 28:16-22; Exhibit
4600 NORTHGATE BOULEVARD, SUITE 210
12 E to Compendium of Evidence:
SACRAMENTO, CALIFORNIA 95834
13 Declaration of Theresa Nero (“Nero
BOHM LAW GROUP, INC.
Decl.”) at ¶ 3.]
14
15 In approximately January 2016, Intensive Disputed.
16 Care Unit (“ICU”) nurse, Elena Gutierrez,
complained that Belorousou blocked her Ms. Gutierrez was not trapped in the bathroom
17 exit from a restroom by placing a heavy as Defendant suggests. Plaintiff only partially
crash cart in front of the restroom door blocked the door to the bathroom with a crash
18 (“crash cart incident”). cart in a joking fashion. Plaintiff removed the
19 cart from in front of the door, and Ms.
[Exhibit 40 to Compendium of Evidence: Gutierrez was able to exit.
20 Belorousou Depo at 85:9-12; Exhibit B to
Compendium of Evidence: Declaration of Exhibit A – Plaintiff’s Dec. ¶ 20 (attached to
21 Lina Slack (“Slack Decl.”) at ¶ 7.] Plaintiff’s Evidence In Opposition To
Defendant’s Motion For Summary Judgment
22
or, in the Alternative, Summary Adjudication
23 Of Issues (hereinafter “Evidence in
Opposition)); Exhibit I – Plaintiff’s Depo,
24 Volume I: at 75:1-76:14 (attached to Evidence
in Opposition).
25
26
27
28
2
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
During an investigation, Belorousou Disputed.
3 admitted to the conduct and
acknowledged that it was in poor taste. Plaintiff admitted that he was attempting to
4 joke with Ms. Gutierrez. Plaintiff explained
[Exhibit 40 to Compendium of Evidence: that she owed him $2,000 for a computer he
5 Belorousou Depo at 70:22-71:5, 72:9- bought for her, using his wife’s discount. Ms.
6 75:9; 80:2-6; 82:4-83:2; 83:7-.84:1; Gutierrez then proceeded to stick out her
Exhibit B to Compendium of Evidence: tongue and entered the restroom.
7 Slack Decl. at ¶ 8 and Exhibit 19 to
Compendium of Evidence.] Exhibit A – Plaintiff’s Dec. ¶¶ 19, 20.
8
9
On February 24, 2016, as a result of his Disputed as to the implication that Plaintiff
10 conduct during the crash cart incident, was suspended for putting the crash cart in
Belorousou was suspended for one day on front of the bathroom door, and partially
11
February 29, 2016, without pay. blocking Ms. Gutierrez in the bathroom.
4600 NORTHGATE BOULEVARD, SUITE 210
12
SACRAMENTO, CALIFORNIA 95834
[Exhibit 20 to Compendium of Evidence: In reality, Plaintiff was suspended due to a
13 Exhibit 5 to Belorousou Depo; Exhibit 40 long-standing feud between Ms. Gutierrez and
BOHM LAW GROUP, INC.
to Compendium of Evidence: Belorousou Tara Kirk (“Kirk”)—one he knew very little
14 Depo at 70:22-71:5, 72:9-75:9; 80:2-6; about.
15 82:4-83:2; 83:7-.84:1; Exhibit B to
Compendium of Evidence: Slack Decl. at Exhibit A – Plaintiff’s Dec. ¶ 22.
16 ¶ 8-9; Exhibit 21 to Compendium of
Evidence.] Caruana confirmed during her deposition she
17 was aware that Ms. Kirk and Ms. Gutierrez
were not friendly towards one another.
18
19 Exhibit K – Caruana Depo.: at 39:12-17
(attached to Evidence in Opposition).
20
ICU Manager, Kerianne Caligiure
21 (“Caligiure”) told Plaintiff the reason he was
22 being suspended was for teaming up with Kirk
against Gutierrez, not for the act of blocking
23 the doorway with the cart itself.
24 Exhibit A – Plaintiff’s Dec. ¶24.
25
However, both Kirk and Mhini Chand were
26 present during the cart incident. When
interviewed by Caligiure, both told her that
27 Belorousou I was not bullying Ms. Gutierrez,
the incident was not a cohort effort against Ms.
28
3
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
Gutierrez, and they did not even realize that
3 the cart was blocking the door.
4 Exhibit I – Plaintiff’s Depo, Vol. I: 91:15-
92:2 (attached to Evidence in Opposition).;
5 Exhibit A – Plaintiff’s Dec. ¶ 23.
6
7 In addition to the one day suspension, as Disputed.
of February 25, 2016, Belorousou was
8 temporarily ineligible to receive Plaintiff complained to Caligiure that he was
9 assignments as Lunch-Break or Resource simply being made a scapegoat for the
Nurse because ICU management mismanaged ICU, and that taking away his
10 concluded that he exhibited poor assignments as Lunch-Break and Resource
judgment and a lack of leadership in Nurse was a disproportionate punishment.
11
connection with the crash cart incident.
Exhibit A – Plaintiff’s Dec. ¶ 25
4600 NORTHGATE BOULEVARD, SUITE 210
12
SACRAMENTO, CALIFORNIA 95834
[Exhibit B to Compendium of Evidence:
13 Slack Decl. at ¶ 8-9 and Exhibits 20 and Plaintiff did not just become “ineligible to
BOHM LAW GROUP, INC.
21 to Compendium of Evidence] receive assignments as Lunch-Break or
14 Resource Nurse,” he was demoted-in-fact by
Karen Caruana (“Caruana”) at the direction of
15
Caligiure. Neither told him why he was being
16 demoted.
17 Exhibit A – Plaintiff’s Dec. ¶¶ 28, 29.
18 Furthermore, after Plaintiff was demoted-in-
19 fact, there was a clear standing directive given
by ICU management that “Andrei should
20 always be in care; there cannot be a situation
if he has just one patient or no patients at all
21 when he is working.” Plaintiff considered this
22 a punishment for his patient safety complaints.
Plaintiff’s fellow ICU nurses asked him things
23 such as, “What did you do, the management is
trying to kill you like that?”
24
25 Exhibit A – Plaintiff’s Dec. ¶ 31
26 Lastly, due to Plaintiff’s newly limited role in
the ICU, he would have been to recertify as a
27 Registered Nurse IV, which would have
resulted in an eight percent decrease in pay.
28
4
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
Exhibit A – Plaintiff’s Dec. ¶ 32; Exhibit M
3 – Melcher Depo. at 59:16-60:14.
4 Disputed as to the implication Plaintiff was
treated fairly when he was demoted from his
5 roles of Lunch and Break Nurse and Resource
6 Nurse.
7 Defendant is supposed to follow its own
policies, one of which is referred to as
8 ‘Principals of Responsibility.’ This essentially
9 is the notion that people should be treated
fairly. However, Plaintiff did not feel as if he
10 was treated fairly during this incident, and
complained to Caligiure that he was being
11 punished disproportionately.
4600 NORTHGATE BOULEVARD, SUITE 210
12
Exhibit A – Plaintiff’s Dec. ¶¶ 25, 26; Exhibit
SACRAMENTO, CALIFORNIA 95834
13 I – Plaintiff’s Depo., Vol. I, 95:7-12 (attached
BOHM LAW GROUP, INC.
to Evidence in Opposition).
14
15
16
ISSUE 2: BELOROUSOU’S FIRST CAUSE OF ACTION FOR RETALIATION
17 IN VIOLATION OF HEALTH & SAFETY CODE § 1278.5 FAILS TO THE EXTENT IT IS
PREMISED ON HIS PAID ADMINISTRATIVE LEAVE AND THE INVESTIGATION
18 INTO HIS NURSING PRACTICES BECAUSE KAISER PROFFERED LEGITIMATE
19 NON-RETALIATORY BUSINESS REASONS FOR THOSE DECISIONS AND THERE IS
NO TRIABLE ISSUE AS TO PRETEXT.
20
21 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
22 In late April 2016, Belorousou’s coworker Disputed as to the implication that anybody
23 and a union representative, Sandy Coley, actually witnessed Plaintiff divert Propofol
informed the Chief Nursing Officer of from one patient’s IV to another.
24 Kaiser’ San Jose Medical Center, Theresa
Nero (“Nero”), that another nurse reported The supposed witness, Frank Amog, told
25 to her that he had observed Belorousou Slack during her investigation that he did not
26 draw Propofol from the intravenous line see Plaintiff divert Propofol from one patient’s
(“IV”) of one patient and inject it into the IV to another.
27 IV of another patient.
28
5
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
[Exhibit G to Compendium of Evidence: Exhibit L – Slack Depo., at 70:7-17; 91:12-16
3 Declaration of Sandy Coley (“Coley (attached to Evidence in Opposition).
Decl.”) at ¶ 4; Exhibit E to Compendium
4 of Evidence: Nero Decl. at ¶ 6.] Plaintiff has never diverted medication from
one patient to another, and Plaintiff’s
5 termination letter does not list drug diversion
6 as a reason for his termination.
7 Exhibit A – Plaintiff’s Dec. ¶¶ 98, 99.
8 In fact, when Compliance Officer Richard
Contreras later investigated whether Plaintiff
9
diverted drugs, he noted “Not clear evidence
10 of diversion.”
11 Exhibit Y – Handwritten Note – Contreras –
4600 NORTHGATE BOULEVARD, SUITE 210
Not Clear Evidence of Diversion (attached to
12
Evidence in Opposition); Exhibit X –
SACRAMENTO, CALIFORNIA 95834
13 Investigation Findings Report (attached to
BOHM LAW GROUP, INC.
Evidence in Opposition).
14
15
Nero requested that Human Resources Undisputed.
16 investigate the issue.
17 [Exhibit E to Compendium of Evidence:
Nero Decl at ¶ 6.]
18
19
Propofol and Precedex are anesthetics that Undisputed.
20 are used to sedate patients.
21 [Exhibit A to Compendium of Evidence:
22 Declaration of Elizabeth Scruth (“Scruth
Decl.) at ¶ 4.]
23
24 Nero decided to place Belorousou on paid Disputed.
25 administrative leave because the
allegation against him implicated patient Nero placed Plaintiff on leave due to his
26 safety. protected complaints. In or around mid-
March, Plaintiff complained to Caruana
27 [Exhibit E to Compendium of Evidence: several times that I feared that Kaiser and
Nero Decl at ¶ 6.] Caligiure were trying to terminate him.
28
Plaintiff told Caligiure that he felt he was
6
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
being retaliated against and that the recent
3 retaliations endangered patient care.
4 Exhibit A – Plaintiff’s Dec., ¶ 40
5 Shortly thereafter, Plaintiff requested a
6 meeting with Nero to address the same
concerns. He never heard back from Nero.
7
Exhibit A – Plaintiff’s Dec., ¶ 41
8
Instead of meeting with Plaintiff, Nero
9 interviewed Coley.
10
Exhibit A – Plaintiff’s Dec., ¶ 42.
11
Coley was not supported by many nurses in
4600 NORTHGATE BOULEVARD, SUITE 210
12 the ICU. Plaintiff co-wrote a letter of “no
SACRAMENTO, CALIFORNIA 95834
13 confidence” to the CNA addressing this
BOHM LAW GROUP, INC.
concern.
14
Exhibit A – Plaintiff’s Dec., ¶¶ 42, 43;
15 Exhibit Q – Coley Vote of No Confidence
(attached to Evidence in Opposition); Exhibit
16
M – Melcher Depo. at 35:10-38:13.
17
After the petition of no confidence was
18 submitted, Caligiure told Karen Melcher,
“He’s going to get in trouble for this. He’s
19 going to pay for this.”
20
Exhibit M – Melcher Depo. at 35:10-38:13.
21
Coley was also a known retaliator, who had
22 her sights set on Plaintiff. It was known that
23 she was out to get Plaintiff.
Exhibit R – Fearing Retaliation from Coley
24 (attached to Evidence in Opposition).; Exhibit
25 A – Plaintiff’s Dec., ¶ 27; Exhibit M –
Melcher Depo. at 41:23-43:17.
26
In fact, Coley was “ecstatic” when Plaintiff
27 was terminated.
28 Exhibit M – Melcher Depo. at 48:4-50:2.
7
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
Belorousou was placed on paid Undisputed.
3 administrative leave on April 27, 2016
shortly before 11 a.m.
4
[Exhibit 40 to Compendium of Evidence:
5 Belorousou Depo at 135:9-136:20;
6 Exhibit B to Compendium of Evidence:
Slack Decl. at ¶ 14.]
7
8 After Belorousou was placed on paid Disputed.
9 administrative leave, Assistant Nurse
Manager Seema Sulemani reported to Plaintiff did not “insist” on retrieving more
10 Slack and Nero that when she was medication “despite her objection,” instead,
relieving Belorousou from patient care Plaintiff offered to retrieve more medication
11 for Sulemani to do a proper hand-off, to which
that morning, Belorousou insisted on
4600 NORTHGATE BOULEVARD, SUITE 210
12 retrieving more sedative for one of the Sulemani nodded in agreement.
SACRAMENTO, CALIFORNIA 95834
patients he was handing over to Sulemani,
13 and despite her objection, he left in the Exhibit A – Plaintiff’s Dec., ¶ 62.
BOHM LAW GROUP, INC.
direction of the Pyxis machine and a few
14 The patient in question required more sedation
minutes later handed her a bottle of
Propofol, which he pulled out of his because he was in danger of self-extubation.
15
pocket. Slack and Nero understood that This is an assessment that the physician, Dr.
16 Sulemani found Belorousou’s conduct Hemprich, agreed with.
that morning strange and unusual.
17 Exhibit A – Plaintiff’s Dec., ¶¶ 53, 58.
18 [Exhibit E to Compendium of Evidence:
Dr. Hemprich explicitly ordered to keep the
Nero Decl. ¶ 8; Exhibit B to Compendium
19 patient sedated.
of Evidence: Slack Decl. at ¶ 15; Exhibit
26 to Compendium of Evidence; Exhibit Exhibit M – Melcher Depo. at 28:16-29:18.
20
40 to Compendium of Evidence:
21 Belorousou Depo at 160:7-24.] In order to properly hand-off a patient, the
nurse must make sure the provider they are
22 handing-off to has enough medication and
23 supplies to immediately take care of the
patient. Since Sulemani was relatively
24 inexperienced, Plaintiff made the decision to
retrieve more medication for her.
25
26 Exhibit A – Plaintiff’s Dec., ¶¶ 60, 61, 63.
27 Sulemani then proceeded to defame Plaintiff
by telling another ICU staff nurse, Rosemary
28 Makemteh, “Can you imagine, even when he
8
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
was pulled from patient care to be sent to the
3 nursing administration office to be told he
would be suspended, he had a drug bottle in
4 his pocket.”
5 Exhibit A – Plaintiff’s Dec., ¶ 69.
6
This defamation worsened and continued
7 throughout the rest of Plaintiff’s employment
with Kaiser, and then followed him to his
8 subsequent employment.
9
Exhibit A – Plaintiff’s Dec., ¶¶ 72, 73, 74, 75,
10 103, 104.; Exhibit J – Plaintiff’s Depo., Vol.
II, at 457:23-462:20; 465:1-15; 466:7-19
11 (attached to Evidence in Opposition); Exhibit
AA – Email from Plaintiff to Slack: Repeated
4600 NORTHGATE BOULEVARD, SUITE 210
12
SACRAMENTO, CALIFORNIA 95834
Defamation (attached to Evidence in
13 Opposition).
BOHM LAW GROUP, INC.
14
15 Sulemani also reported that she was Disputed as to the implication that the
concerned that the rate of infusion of infusion rate of anesthetics for Plaintiff’s
16 anesthetics for Belorousou’s patient that patient actually was higher than ordered by the
morning was higher than ordered by the doctor.
17 doctor.
Prior to transferring care to Sulemani, Plaintiff
18
[Exhibit E to Compendium of Evidence: discussed with the treating physician, Dr.
19 Nero Decl. ¶ 8; Exhibit B to Compendium Hemprich, that the patient needed more
of Evidence: Slack Decl. at ¶ 15; Exhibit sedative than what was ordered because he
20 26 to Compendium of Evidence.] was in danger of self-extubation. Dr.
21 Hemprich agreed and gave the verbal order to
do so.
22
Exhibit A – Plaintiff’s Dec., ¶ 53.
23
Dr. Hemprich explicitly ordered to keep the
24 patient sedated.
25
Exhibit M – Melcher Depo. at 28:16-29:18.
26
Due to the emergency nature of the ICU,
27 verbal orders are common, so the preexisting
28
9
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq.
Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq.
Case No.: 17CV309032
1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND
AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE
2
digital computerized record sometimes does
3 not match up in real time.
4 Exhibit A – Plaintiff’s Dec., ¶ 54. Exhibit I –
Plaintiff Depo., Vol. I, at 143:21-144:12.
5
6 Later that morning, Plaintiff attempted to
administered Precedex, while reducing the
7 Propofol rate, consistent with the Doctor’s
order.
8
Exhibit A – Plaintiff’s Dec., ¶ 58.
9
10 Sulemani should have known the reason for
the infusion rate, because Plaintiff initiated
11 hand-off with her by doing SBAR (situation,
4600 NORTHGATE BOULEVARD, SUITE 210
background, assessment, recommendation).
12
SACRAMENTO, CALIFORNIA 95834
13 Exhibit A – Plaintiff’s Dec., ¶ 5.
BOHM LAW GROUP, INC.
14
Nero was concerned about Sulemani’s Disputed as to the materiality of Nero’s
15 report and she instructed Sulemani to mindset.
16 arrange for securing the Alaris pump used
to infuse medication for that patient to be What is material is that Sulemani inaccurately
17 analyzed. reported the events of the hand-off with the
patient in question.
18 [Exhibit E to Compendium of Evidence:
Nero Decl. ¶ 8; Exhibit B to Compendium Prior to transferring care to Sulemani, Plaintiff
19
of Evidence: Slack Decl. at ¶ 15.] discussed with the treating physician, Dr.
20 Hemprich, that the patient needed more
sedative than what was ordered because he
21 was in danger of self-extubation. Dr.
Hemprich agreed and gave the verbal order to
22
do so.
23
Exhibit A – Plaintiff’s Dec., ¶ 53.
24
Dr. Hemprich explicitly ordered to keep the
25 patient sedated.
26
Exhibit M – Melcher Depo. at 28:16-29:18.
27
Due to the emergency nature of the ICU,
28 verbal orders are common, so the preexisting
10
Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq.
Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L
Preview
Lawrance A. Bohm (SBN: 208716) Victoria L. Gutierrez (SBN: 282715) Kyle A. Pruner (SBN: 314874) BOHM LAW GROUP, INC. 4600 Northgate Boulevard, Suite 210 Sacramento, California 95834 Telephone: 866.920.1292 Facsimile: 916.927.2046 Attorneys for Plaintiff ANDREI BELOROUSOU SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ANDREI BELOROUSOU, Case No: 17CV309032 Plaintiff, SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN UITE SUPPORT OF DEFENDANT KAISER FOUNDATION HOSPITALS’ MOTION ALIFORNIA OULEVARD KAISER FOUNDATION HOSPITALS; and FOR SUMMARY JUDGMENT OR, IN ROUP DOES 1 through 50, inclusive, THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES Defendants. AW ORTHGATE ACRAMENTO Date: April 25, 2019 OHM Time: 9:00 a.m. Dept: 2 Action Filed: April 24, 2017 Trial Date: TBD Pursuant to Rule 3.1350(c), (d), and (h), Defendant Kaiser Foundation Hospitals submits this Separate Statement of Undisputed Material Facts in Support of its motion for summary judgment or, in the alternative, for summary adjudication of issues. Pursuant to Rule 3.1350(d), as amended effective January 1, 2016, this Separate Statement contains only those undisputed facts that are pertinent to the disposition of this motion. Plaintiff’s SSUMF n Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment r, in the Alternative, Summary Adjudication f Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV3 KAISER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON 1 BELOROUSOU’S FIRST CAUSE OF ACTION FOR RETALIATION IN VIOLATION 2 OF HEALTH AND SAFETY CODE SECTION 1278.5. 3 ISSUE 1: BELOROUSOU’S FIRST CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF HEALTH & SAFETY CODE § 1278.5 FAILS TO THE EXTENT IT IS 4 PREMISED ON DISCIPLINE CONNECTED WITH THE CRASH CART INCIDENT BECAUSE KAISER PROFFERED LEGITIMATE NON-RETALIATORY BUSINESS 5 REASONS TO DISCIPLINE HIM AND THERE IS NO TRIABLE ISSUE AS TO PRETEXT. 6 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND 7 AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 8 During his employment with Kaiser, Undisputed. Belorousou held a Registered Nurse 9 License issued by the State of California. 10 [Exhibit 40 to Compendium of Evidence: 11 Deposition of Andrei Belorousou (“Belorousou Depo”) at 28:16-22; Exhibit 4600 NORTHGATE BOULEVARD, SUITE 210 12 E to Compendium of Evidence: SACRAMENTO, CALIFORNIA 95834 13 Declaration of Theresa Nero (“Nero BOHM LAW GROUP, INC. Decl.”) at ¶ 3.] 14 15 In approximately January 2016, Intensive Disputed. 16 Care Unit (“ICU”) nurse, Elena Gutierrez, complained that Belorousou blocked her Ms. Gutierrez was not trapped in the bathroom 17 exit from a restroom by placing a heavy as Defendant suggests. Plaintiff only partially crash cart in front of the restroom door blocked the door to the bathroom with a crash 18 (“crash cart incident”). cart in a joking fashion. Plaintiff removed the 19 cart from in front of the door, and Ms. [Exhibit 40 to Compendium of Evidence: Gutierrez was able to exit. 20 Belorousou Depo at 85:9-12; Exhibit B to Compendium of Evidence: Declaration of Exhibit A – Plaintiff’s Dec. ¶ 20 (attached to 21 Lina Slack (“Slack Decl.”) at ¶ 7.] Plaintiff’s Evidence In Opposition To Defendant’s Motion For Summary Judgment 22 or, in the Alternative, Summary Adjudication 23 Of Issues (hereinafter “Evidence in Opposition)); Exhibit I – Plaintiff’s Depo, 24 Volume I: at 75:1-76:14 (attached to Evidence in Opposition). 25 26 27 28 2 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 During an investigation, Belorousou Disputed. 3 admitted to the conduct and acknowledged that it was in poor taste. Plaintiff admitted that he was attempting to 4 joke with Ms. Gutierrez. Plaintiff explained [Exhibit 40 to Compendium of Evidence: that she owed him $2,000 for a computer he 5 Belorousou Depo at 70:22-71:5, 72:9- bought for her, using his wife’s discount. Ms. 6 75:9; 80:2-6; 82:4-83:2; 83:7-.84:1; Gutierrez then proceeded to stick out her Exhibit B to Compendium of Evidence: tongue and entered the restroom. 7 Slack Decl. at ¶ 8 and Exhibit 19 to Compendium of Evidence.] Exhibit A – Plaintiff’s Dec. ¶¶ 19, 20. 8 9 On February 24, 2016, as a result of his Disputed as to the implication that Plaintiff 10 conduct during the crash cart incident, was suspended for putting the crash cart in Belorousou was suspended for one day on front of the bathroom door, and partially 11 February 29, 2016, without pay. blocking Ms. Gutierrez in the bathroom. 4600 NORTHGATE BOULEVARD, SUITE 210 12 SACRAMENTO, CALIFORNIA 95834 [Exhibit 20 to Compendium of Evidence: In reality, Plaintiff was suspended due to a 13 Exhibit 5 to Belorousou Depo; Exhibit 40 long-standing feud between Ms. Gutierrez and BOHM LAW GROUP, INC. to Compendium of Evidence: Belorousou Tara Kirk (“Kirk”)—one he knew very little 14 Depo at 70:22-71:5, 72:9-75:9; 80:2-6; about. 15 82:4-83:2; 83:7-.84:1; Exhibit B to Compendium of Evidence: Slack Decl. at Exhibit A – Plaintiff’s Dec. ¶ 22. 16 ¶ 8-9; Exhibit 21 to Compendium of Evidence.] Caruana confirmed during her deposition she 17 was aware that Ms. Kirk and Ms. Gutierrez were not friendly towards one another. 18 19 Exhibit K – Caruana Depo.: at 39:12-17 (attached to Evidence in Opposition). 20 ICU Manager, Kerianne Caligiure 21 (“Caligiure”) told Plaintiff the reason he was 22 being suspended was for teaming up with Kirk against Gutierrez, not for the act of blocking 23 the doorway with the cart itself. 24 Exhibit A – Plaintiff’s Dec. ¶24. 25 However, both Kirk and Mhini Chand were 26 present during the cart incident. When interviewed by Caligiure, both told her that 27 Belorousou I was not bullying Ms. Gutierrez, the incident was not a cohort effort against Ms. 28 3 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Gutierrez, and they did not even realize that 3 the cart was blocking the door. 4 Exhibit I – Plaintiff’s Depo, Vol. I: 91:15- 92:2 (attached to Evidence in Opposition).; 5 Exhibit A – Plaintiff’s Dec. ¶ 23. 6 7 In addition to the one day suspension, as Disputed. of February 25, 2016, Belorousou was 8 temporarily ineligible to receive Plaintiff complained to Caligiure that he was 9 assignments as Lunch-Break or Resource simply being made a scapegoat for the Nurse because ICU management mismanaged ICU, and that taking away his 10 concluded that he exhibited poor assignments as Lunch-Break and Resource judgment and a lack of leadership in Nurse was a disproportionate punishment. 11 connection with the crash cart incident. Exhibit A – Plaintiff’s Dec. ¶ 25 4600 NORTHGATE BOULEVARD, SUITE 210 12 SACRAMENTO, CALIFORNIA 95834 [Exhibit B to Compendium of Evidence: 13 Slack Decl. at ¶ 8-9 and Exhibits 20 and Plaintiff did not just become “ineligible to BOHM LAW GROUP, INC. 21 to Compendium of Evidence] receive assignments as Lunch-Break or 14 Resource Nurse,” he was demoted-in-fact by Karen Caruana (“Caruana”) at the direction of 15 Caligiure. Neither told him why he was being 16 demoted. 17 Exhibit A – Plaintiff’s Dec. ¶¶ 28, 29. 18 Furthermore, after Plaintiff was demoted-in- 19 fact, there was a clear standing directive given by ICU management that “Andrei should 20 always be in care; there cannot be a situation if he has just one patient or no patients at all 21 when he is working.” Plaintiff considered this 22 a punishment for his patient safety complaints. Plaintiff’s fellow ICU nurses asked him things 23 such as, “What did you do, the management is trying to kill you like that?” 24 25 Exhibit A – Plaintiff’s Dec. ¶ 31 26 Lastly, due to Plaintiff’s newly limited role in the ICU, he would have been to recertify as a 27 Registered Nurse IV, which would have resulted in an eight percent decrease in pay. 28 4 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Exhibit A – Plaintiff’s Dec. ¶ 32; Exhibit M 3 – Melcher Depo. at 59:16-60:14. 4 Disputed as to the implication Plaintiff was treated fairly when he was demoted from his 5 roles of Lunch and Break Nurse and Resource 6 Nurse. 7 Defendant is supposed to follow its own policies, one of which is referred to as 8 ‘Principals of Responsibility.’ This essentially 9 is the notion that people should be treated fairly. However, Plaintiff did not feel as if he 10 was treated fairly during this incident, and complained to Caligiure that he was being 11 punished disproportionately. 4600 NORTHGATE BOULEVARD, SUITE 210 12 Exhibit A – Plaintiff’s Dec. ¶¶ 25, 26; Exhibit SACRAMENTO, CALIFORNIA 95834 13 I – Plaintiff’s Depo., Vol. I, 95:7-12 (attached BOHM LAW GROUP, INC. to Evidence in Opposition). 14 15 16 ISSUE 2: BELOROUSOU’S FIRST CAUSE OF ACTION FOR RETALIATION 17 IN VIOLATION OF HEALTH & SAFETY CODE § 1278.5 FAILS TO THE EXTENT IT IS PREMISED ON HIS PAID ADMINISTRATIVE LEAVE AND THE INVESTIGATION 18 INTO HIS NURSING PRACTICES BECAUSE KAISER PROFFERED LEGITIMATE 19 NON-RETALIATORY BUSINESS REASONS FOR THOSE DECISIONS AND THERE IS NO TRIABLE ISSUE AS TO PRETEXT. 20 21 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 22 In late April 2016, Belorousou’s coworker Disputed as to the implication that anybody 23 and a union representative, Sandy Coley, actually witnessed Plaintiff divert Propofol informed the Chief Nursing Officer of from one patient’s IV to another. 24 Kaiser’ San Jose Medical Center, Theresa Nero (“Nero”), that another nurse reported The supposed witness, Frank Amog, told 25 to her that he had observed Belorousou Slack during her investigation that he did not 26 draw Propofol from the intravenous line see Plaintiff divert Propofol from one patient’s (“IV”) of one patient and inject it into the IV to another. 27 IV of another patient. 28 5 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 [Exhibit G to Compendium of Evidence: Exhibit L – Slack Depo., at 70:7-17; 91:12-16 3 Declaration of Sandy Coley (“Coley (attached to Evidence in Opposition). Decl.”) at ¶ 4; Exhibit E to Compendium 4 of Evidence: Nero Decl. at ¶ 6.] Plaintiff has never diverted medication from one patient to another, and Plaintiff’s 5 termination letter does not list drug diversion 6 as a reason for his termination. 7 Exhibit A – Plaintiff’s Dec. ¶¶ 98, 99. 8 In fact, when Compliance Officer Richard Contreras later investigated whether Plaintiff 9 diverted drugs, he noted “Not clear evidence 10 of diversion.” 11 Exhibit Y – Handwritten Note – Contreras – 4600 NORTHGATE BOULEVARD, SUITE 210 Not Clear Evidence of Diversion (attached to 12 Evidence in Opposition); Exhibit X – SACRAMENTO, CALIFORNIA 95834 13 Investigation Findings Report (attached to BOHM LAW GROUP, INC. Evidence in Opposition). 14 15 Nero requested that Human Resources Undisputed. 16 investigate the issue. 17 [Exhibit E to Compendium of Evidence: Nero Decl at ¶ 6.] 18 19 Propofol and Precedex are anesthetics that Undisputed. 20 are used to sedate patients. 21 [Exhibit A to Compendium of Evidence: 22 Declaration of Elizabeth Scruth (“Scruth Decl.) at ¶ 4.] 23 24 Nero decided to place Belorousou on paid Disputed. 25 administrative leave because the allegation against him implicated patient Nero placed Plaintiff on leave due to his 26 safety. protected complaints. In or around mid- March, Plaintiff complained to Caruana 27 [Exhibit E to Compendium of Evidence: several times that I feared that Kaiser and Nero Decl at ¶ 6.] Caligiure were trying to terminate him. 28 Plaintiff told Caligiure that he felt he was 6 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 being retaliated against and that the recent 3 retaliations endangered patient care. 4 Exhibit A – Plaintiff’s Dec., ¶ 40 5 Shortly thereafter, Plaintiff requested a 6 meeting with Nero to address the same concerns. He never heard back from Nero. 7 Exhibit A – Plaintiff’s Dec., ¶ 41 8 Instead of meeting with Plaintiff, Nero 9 interviewed Coley. 10 Exhibit A – Plaintiff’s Dec., ¶ 42. 11 Coley was not supported by many nurses in 4600 NORTHGATE BOULEVARD, SUITE 210 12 the ICU. Plaintiff co-wrote a letter of “no SACRAMENTO, CALIFORNIA 95834 13 confidence” to the CNA addressing this BOHM LAW GROUP, INC. concern. 14 Exhibit A – Plaintiff’s Dec., ¶¶ 42, 43; 15 Exhibit Q – Coley Vote of No Confidence (attached to Evidence in Opposition); Exhibit 16 M – Melcher Depo. at 35:10-38:13. 17 After the petition of no confidence was 18 submitted, Caligiure told Karen Melcher, “He’s going to get in trouble for this. He’s 19 going to pay for this.” 20 Exhibit M – Melcher Depo. at 35:10-38:13. 21 Coley was also a known retaliator, who had 22 her sights set on Plaintiff. It was known that 23 she was out to get Plaintiff. Exhibit R – Fearing Retaliation from Coley 24 (attached to Evidence in Opposition).; Exhibit 25 A – Plaintiff’s Dec., ¶ 27; Exhibit M – Melcher Depo. at 41:23-43:17. 26 In fact, Coley was “ecstatic” when Plaintiff 27 was terminated. 28 Exhibit M – Melcher Depo. at 48:4-50:2. 7 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 Belorousou was placed on paid Undisputed. 3 administrative leave on April 27, 2016 shortly before 11 a.m. 4 [Exhibit 40 to Compendium of Evidence: 5 Belorousou Depo at 135:9-136:20; 6 Exhibit B to Compendium of Evidence: Slack Decl. at ¶ 14.] 7 8 After Belorousou was placed on paid Disputed. 9 administrative leave, Assistant Nurse Manager Seema Sulemani reported to Plaintiff did not “insist” on retrieving more 10 Slack and Nero that when she was medication “despite her objection,” instead, relieving Belorousou from patient care Plaintiff offered to retrieve more medication 11 for Sulemani to do a proper hand-off, to which that morning, Belorousou insisted on 4600 NORTHGATE BOULEVARD, SUITE 210 12 retrieving more sedative for one of the Sulemani nodded in agreement. SACRAMENTO, CALIFORNIA 95834 patients he was handing over to Sulemani, 13 and despite her objection, he left in the Exhibit A – Plaintiff’s Dec., ¶ 62. BOHM LAW GROUP, INC. direction of the Pyxis machine and a few 14 The patient in question required more sedation minutes later handed her a bottle of Propofol, which he pulled out of his because he was in danger of self-extubation. 15 pocket. Slack and Nero understood that This is an assessment that the physician, Dr. 16 Sulemani found Belorousou’s conduct Hemprich, agreed with. that morning strange and unusual. 17 Exhibit A – Plaintiff’s Dec., ¶¶ 53, 58. 18 [Exhibit E to Compendium of Evidence: Dr. Hemprich explicitly ordered to keep the Nero Decl. ¶ 8; Exhibit B to Compendium 19 patient sedated. of Evidence: Slack Decl. at ¶ 15; Exhibit 26 to Compendium of Evidence; Exhibit Exhibit M – Melcher Depo. at 28:16-29:18. 20 40 to Compendium of Evidence: 21 Belorousou Depo at 160:7-24.] In order to properly hand-off a patient, the nurse must make sure the provider they are 22 handing-off to has enough medication and 23 supplies to immediately take care of the patient. Since Sulemani was relatively 24 inexperienced, Plaintiff made the decision to retrieve more medication for her. 25 26 Exhibit A – Plaintiff’s Dec., ¶¶ 60, 61, 63. 27 Sulemani then proceeded to defame Plaintiff by telling another ICU staff nurse, Rosemary 28 Makemteh, “Can you imagine, even when he 8 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 was pulled from patient care to be sent to the 3 nursing administration office to be told he would be suspended, he had a drug bottle in 4 his pocket.” 5 Exhibit A – Plaintiff’s Dec., ¶ 69. 6 This defamation worsened and continued 7 throughout the rest of Plaintiff’s employment with Kaiser, and then followed him to his 8 subsequent employment. 9 Exhibit A – Plaintiff’s Dec., ¶¶ 72, 73, 74, 75, 10 103, 104.; Exhibit J – Plaintiff’s Depo., Vol. II, at 457:23-462:20; 465:1-15; 466:7-19 11 (attached to Evidence in Opposition); Exhibit AA – Email from Plaintiff to Slack: Repeated 4600 NORTHGATE BOULEVARD, SUITE 210 12 SACRAMENTO, CALIFORNIA 95834 Defamation (attached to Evidence in 13 Opposition). BOHM LAW GROUP, INC. 14 15 Sulemani also reported that she was Disputed as to the implication that the concerned that the rate of infusion of infusion rate of anesthetics for Plaintiff’s 16 anesthetics for Belorousou’s patient that patient actually was higher than ordered by the morning was higher than ordered by the doctor. 17 doctor. Prior to transferring care to Sulemani, Plaintiff 18 [Exhibit E to Compendium of Evidence: discussed with the treating physician, Dr. 19 Nero Decl. ¶ 8; Exhibit B to Compendium Hemprich, that the patient needed more of Evidence: Slack Decl. at ¶ 15; Exhibit sedative than what was ordered because he 20 26 to Compendium of Evidence.] was in danger of self-extubation. Dr. 21 Hemprich agreed and gave the verbal order to do so. 22 Exhibit A – Plaintiff’s Dec., ¶ 53. 23 Dr. Hemprich explicitly ordered to keep the 24 patient sedated. 25 Exhibit M – Melcher Depo. at 28:16-29:18. 26 Due to the emergency nature of the ICU, 27 verbal orders are common, so the preexisting 28 9 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L. Gutierrez, Esq. Belorousou v. Kaiser Foundation Hospitals Kyle A. Pruner, Esq. Case No.: 17CV309032 1 DEFENDANT’S UNDISPUTED FACTS PLAINTIFF’S RESPONSE AND AND SUPPORTING EVIDENCE SUPPORTING EVIDENCE 2 digital computerized record sometimes does 3 not match up in real time. 4 Exhibit A – Plaintiff’s Dec., ¶ 54. Exhibit I – Plaintiff Depo., Vol. I, at 143:21-144:12. 5 6 Later that morning, Plaintiff attempted to administered Precedex, while reducing the 7 Propofol rate, consistent with the Doctor’s order. 8 Exhibit A – Plaintiff’s Dec., ¶ 58. 9 10 Sulemani should have known the reason for the infusion rate, because Plaintiff initiated 11 hand-off with her by doing SBAR (situation, 4600 NORTHGATE BOULEVARD, SUITE 210 background, assessment, recommendation). 12 SACRAMENTO, CALIFORNIA 95834 13 Exhibit A – Plaintiff’s Dec., ¶ 5. BOHM LAW GROUP, INC. 14 Nero was concerned about Sulemani’s Disputed as to the materiality of Nero’s 15 report and she instructed Sulemani to mindset. 16 arrange for securing the Alaris pump used to infuse medication for that patient to be What is material is that Sulemani inaccurately 17 analyzed. reported the events of the hand-off with the patient in question. 18 [Exhibit E to Compendium of Evidence: Nero Decl. ¶ 8; Exhibit B to Compendium Prior to transferring care to Sulemani, Plaintiff 19 of Evidence: Slack Decl. at ¶ 15.] discussed with the treating physician, Dr. 20 Hemprich, that the patient needed more sedative than what was ordered because he 21 was in danger of self-extubation. Dr. Hemprich agreed and gave the verbal order to 22 do so. 23 Exhibit A – Plaintiff’s Dec., ¶ 53. 24 Dr. Hemprich explicitly ordered to keep the 25 patient sedated. 26 Exhibit M – Melcher Depo. at 28:16-29:18. 27 Due to the emergency nature of the ICU, 28 verbal orders are common, so the preexisting 10 Plaintiff’s SSUMF in Opposition to Defendant’s Motion for Summary Lawrance A. Bohm, Esq. Judgment or, in the Alternative, Summary Adjudication of Issues Victoria L