1 5 James R. Patterson, State Bar No. 211102 Allison H. Goddard, State Bar No. 211098 Elizabeth A. Mitchell State Bar No. 204853 Catherine S. Wicker, State Bar No. 306494 PATTERSON LAW GROUP APC 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 6 Attorneys for Plaintiff MELISSA ESCALERA 2 3 4 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN DIEGO - CENTRAL DIVISION 10 11 MELISSA ESCALERA, on behalf of herself and all others similarly situated, CASE NO.: 37-2016-00017392-CU-PO-CTL [E-FILE] 12 Plaintiff, 13 vs. CLASS ACTION FIRST AMENDED COMPLAINT 14 15 16 SHARP HEALTHCARE, a California Corporation, SHARP GROSSMONT HOSPITAL, and DOES 1- 100, inclusive, Defendants. 17 18 19 20 21 22 1) Breach of Fiduciary Duty; 2) Unlawful Recording of Confidential Information (Pen. Code§§ 632, 637.2); 3) Negligent Creation of Medical Information (Civ. Code§ 56.101); 4) Negligent Maintenance of Medical Information (Civ. Code§ 56.101); 5) Unlawful Disclosure of Medical Information (Civ. Code§§ 56 et seq.); 6) Invasion of Privacy - Intrusion Into Private Affairs; 7) Invasion of Privacy (Cal. Const., Art. 1, § 1); 8) Distribution of Private Sexually Explicit Materials (Action Based On Civ. Code § 1708.85) 23 [DEMAND FOR JURY TRIAL] 24 25 26 27 Plaintiff Melissa Escalera, on behalf of herself and all others similarly situated, alleges as follows: 28 FIRST AMENDED CLASS ACTION COMPLAINT 1 INTRODUCTION 2 1. The birth of a child. The loss of a pregnancy. Surgery to remove cancer. These are some 3 of life's most emotional and private moments. This case is about a hospital's perverse decision to spy on 4 its patients during these moments, and record them without their knowledge or consent, for its own self- 5 interest. 2. 6 For a year, Defendants set up hidden cameras in all three operating rooms at the Women's 7 Center at Sharp Grossmont Hospital. Designed to identify persons and their actions, these cameras were 8 triggered by motion-detecting sensors and began recording everything that happened in these operating 9 rooms whenever any person entered the room. In addition to capturing video images of patients entering, 10 moving about and exiting the operating rooms, the hidden cameras also recorded video images of 11 caesarean births, birth complications, dilatation and curettage to resolve miscarriages, hysterectomies, 12 sterilizations, and other medical procedures. Patients were undressed, exposed, and at their most 13 vulnerable during these procedures. The videos indiscriminately captured images of internal and external 14 physical body parts of patients as well as publicly visible and private, intimate physical body parts of 15 patients alike. 16 3. Defendants recorded approximately 15,000 videos of patients in their operating rooms -- 17 all in an alleged effort to catch someone removing drugs from the operating room cart. Defendants retain 18 at least 6,966 videos, after allegedly destroying some of them. In their overzealous pursuit of evidence 19 against someone working there, Defendants breached the privacy rights of thousands of patients when 20 they were at their most vulnerable state, being disrobed and exposed in front of their doctor. 21 22 4. Defendants further breached their patients' privacy by allowing non-medical personnel, such as security guards and attorneys, to view these private videos. 23 5. This case is a class action under Code of Civil Procedure section 382, seeking recovery for 24 Defendants' systematic and shocking breach of their patients' privacy. Plaintiffs seek monetary damages 25 and penalties as a result of Defendants' unlawful conduct. Damages and penalties are necessary both to 26 compensate Plaintiffs, and to deter Defendants from further breaches. 27 Ill 28 Ill 2 FIRST AMENDED CLASS ACTION COMPLAINT JURISDICTION AND VENUE 1 2 3 4 6. The Superior Court of California for the County of San Diego has jurisdiction over this matter because the allegations and claims herein arise under California common and statutory law. 7. Venue is proper in this Court pursuant to Code of Civil Procedure section 395(a). 5 Defendant regularly conducts business throughout California, including San Diego County, and a 6 substantial portion of the harm caused by Defendant to Plaintiff and numerous other putative class 7 members took place in San Diego County. 8 THE PARTIES 9 8. Plaintiff Escalera resides in San Diego County, California. 10 9. More than two-thirds of the members of the proposed class are citizens of California. 11 10. Defendant Sharp HealthCare is a corporation organized under the laws of California and 12 13 14 15 maintains its principal place of business at 8695 Spectrum Center Boulevard, San Diego, CA 92123. 11. Defendant Sharp Grossmont Hospital is an affiliate of Sharp HealthCare that maintains its principal place of business at 5555 Grossmont Center Drive, La Mesa, CA 91942. 12. Plaintiff is unaware of the true names or capacities of the Defendants sued herein under 16 the fictitious names DOES 1-100, but prays for leave to amend and serve such fictitiously named 17 Defendants once their names and capacities become known. 18 13. Plaintiff is informed and believes, and based thereon alleges, that each and all of the acts 19 and omissions alleged herein were performed by, or are attributable to, Defendants and DOES 1-100 20 (collectively "Defendants"), each acting as the agent for the other, with legal authority to act on the 21 other's behalf. The acts of any and all Defendants were in accordance with, and represent the official 22 policies of Defendant Sharp HealthCare. 23 14. Plaintiff is informed and believes, and based thereon alleges that, at all times herein 24 mentioned, Defendants, and each of them, ratified each and every act or omission complained of herein. 25 At all times herein mentioned, Defendants, and each of them, aided and abetted the acts and omissions of 26 each and all the other Defendants in proximately causing the damages herein alleged. 27 28 15. Plaintiff is informed and believes, and based thereon alleges, that each of said Defendants 1s m some manner intentionally, negligently, or otherwise responsible for the acts, om1ss1ons, 3 FIRST AMENDED CLASS ACTION COMPLAINT 1 occurrences, and transactions alleged herein. 2 GENERAL ALLEGATIONS 3 Plaintiff's Emergency C-Section Delivery 4 On September 4, 2012, Plaintiff was admitted to Sharp Grossmont Hospital for the birth 16. 5 of her second child. Her child was born on September 4, 2012, through an emergency caesarean section 6 performed in an operating room at the Women's Center. 7 17. The birth of her child was an extremely emotional experience for Plaintiff. Her child was 8 born under emergency circumstances, after Plaintiff's water broke and the baby presented in a breech 9 position. Plaintiff was transported by ambulance from her doctor's office to Sharp Grossmont Hospital. 10 18. Due to the emergency, Plaintiff entered the operating room in her street clothes. 11 Defendants' medical personnel asked Plaintiff to undress entirely. She did. At that point, Plaintiff was 12 entirely naked, with all parts of her body visible and exposed. Plaintiff had a reasonable expectation of 13 privacy during this experience, and that Defendants would respect her privacy. 14 19. Unbeknownst to Plaintiff, Defendants had installed a hidden camera in the operating room 15 with a motion-detector sensor. Plaintiff is informed and believes that Defendants surreptitiously 16 recorded the birth of her child, as well as Plaintiff's entire experience in the operating room, using this 17 hidden camera. 18 20. Plaintiff did not consent at any time to Defendants' recording of this private moment. 19 21. Plaintiff is informed and believes that Defendants' personnel, including security guards 20 21 and attorneys, reviewed this video after it was recorded. 22. 22 23 Plaintiff first became aware of Defendants' secret recording in May 2016. Defendants Spied on the Class Members in Their Most Private Moments 23. In July 2012, Defendants installed video cameras on the drug carts in the operating rooms 24 in the Women's Center at Sharp Grossmont Hospital. The video cameras were installed on top of the 25 drug carts and equipped with motion-detecting sensors that triggered them to begin recording whenever 26 anyone entered the room, and continue recording even after motion stopped. 27 28 24. Defendants claim that this secret video surveillance was necessary as part of their investigation into whether somebody was stealing the anesthesia drug propofol from drug carts in the 4 FIRST AMENDED CLASS ACTION COMPLAINT operating rooms. Despite that claim, Defendants' cameras were set up to record when any person 2 entered an operating room, to record a wide range of activity in the operating room beyond access to the 3 drug cart, and to continue recording even after motion stopped. 4 25. Defendants recorded approximately 15,000 video clips in the operating rooms between 5 July 2012 and June 2013. These videos show images of Defendants' female patients while they were in 6 the operating rooms. The cameras captured images of patients entering the operating rooms, being 7 moved onto surgery tables and exiting. Because of the angle and placement of the camera, patients' 8 faces were recorded and the patients were identifiable. These videos also show Defendants' female 9 patients conscious and unconscious, partially robed on operating room tables, undergoing medical 10 procedures and communicating with their doctors and medical personnel. Because of the nature of these 11 procedures, the videos captured women while they were emotionally and physically exposed, and at their 12 most vulnerable. At times, Defendants' female patients had their most sensitive genital areas visible. 13 26. These videos contain matters of great sensitivity, going to the core of patient privacy 14 rights. Defendants recorded these videos in an area of Sharp Grossmont Hospital that is not open to the 15 public. Entry into the operating room is limited to Defendants' employees and doctors who need to be 16 there to perform medical procedures, patients, and, at times, a few family members of patients. 17 27. The videos contain pictures of female patients' bodies and their ailments that Defendants 18 turned over to strangers. After the videos were recorded, they were reviewed by non-medical personnel 19 of Defendants, including security guards and attorneys, as part of the internal investigation. 20 21 28. procedures. 22 23 The patients did not consent to being recorded by Defendants during their medical Defendants' Policies Recognize the Privacy Rights That They Breached 29. Defendants have several policies that recognize and obligate them to respect the privacy 24 of their patients. Defendants' violations of their own policies underscore the shocking and serious nature 25 of their breach of patients' privacy. 26 30. Defendants' Code of Conduct contains a "Standard of Behavior" for confidentiality that 27 states that "Sharp HealthCare protects customers' confidentiality, privacy and modesty in all situations. 28 We are sensitive to the personal nature of health care, and we do everything we can to earn the trust that 5 FIRST AMENDED CLASS ACTION COMPLAINT others place in us." 2 31. According to Defendants' list of "Patient Rights," their patients have a right to "[f]ull 3 consideration of privacy concerning their medical care program. Case discussion, examination, and 4 treatment are confidential and should be conducted discreetly. [Patients] have to right to be advised as to 5 the reason for the presence of any individual." 6 7 8 32. According to Defendants' list of "Patient Rights," their patients have a right to "[h]ave [their] personal privacy respected." 33. According to Defendants' list of "Patient Rights," their patients have a right to 9 "[c]onfidential treatment of all communications and records pertaining to [their] care and stay in the 10 hospital." Defendants promise their patients that "[w]ritten permission shall be obtained before medical 11 records are made available to anyone not directly concerned with your care." 12 34. Defendants violated these rights by failing to disclose to their patients that a hidden 13 camera was installed in the operating room recording their procedures, essentially inviting an unlimited 14 number of individuals to view the private circumstances of patients' medical treatment. Defendants 15 violated these rights further by allowing non-medical personnel, including security guards and attorneys, 16 to view the surreptitiously recorded videos. CLASS ALLEGATIONS 17 18 19 20 35. Plaintiff brings this action on behalf of herself, and on behalf of all other persons similarly situated, and thus seeks certification under section 3 82 of the California Code of Civil Procedure. 36. The proposed Class in this action consists of and is defined as: 22 All persons who underwent a medical procedure in an operating room at the Women's Center at Sharp Grossmont Hospital between July 17, 2012, and June 30, 2013. 23 Subclass 24 All persons who underwent a medical procedure in an operating room at the Women's Center at Sharp Grossmont Hospital between July 17, 2012, and June 30, 2013 who had an intimate body part, such as any portion of the genitals or any portion of the breast below the top of the areola, uncovered or visible at any time while they were in the operating room. 21 25 26 27 28 37. There is a well-defined community of interest in the litigation and the Class is easily ascertainable: 6 FIRST AMENDED CLASS ACTION COMPLAINT 1 a. Numerosity: The members of the Class are so numerous that joinder of all members 2 would be unfeasible and impractical. The membership of the entire Class is unknown 3 to Plaintiffs at this time, however, the Class is estimated to be greater than one 4 thousand (1,000) individuals and the identity of such membership is readily 5 ascertainable by inspection of Defendants' patient records. 6 b. Typicality: Plaintiff is qualified to, and will, fairly and adequately protect the interests 7 of each Class Member with whom she has a well-defined community of interest, and 8 Plaintiffs claims are typical of all Class Members' claims as demonstrated herein. 9 c. Adequacy: Plaintiff is qualified to, and will, fairly and adequately, protect the interests 10 of each Class Member with whom she has a well-defined community of interest and 11 typicality of claims, as alleged herein. Plaintiff acknowledges that she has an 12 obligation to make known to the Court any relationship, conflicts, or differences with 13 any Class Member. Plaintiffs attorneys and class counsel are versed in the rules 14 governing class action discovery, certification, and settlement. Plaintiff has incurred, 15 and throughout the duration of this action will continue to incur, costs and attorneys' 16 fees that have been, are, and will be necessarily expended for the prosecution of this 17 action for the substantial benefit of each Class Member. 18 d. Superiority: The nature of Plaintiffs claims makes the class action procedure superior 19 to other methods. A class action will achieve economies of time, effort and expense as 20 compared with separate lawsuits, and will avoid inconsistent outcomes because the 21 same issues can be adjudicated in the same manner and at the same time for the entire 22 class. 23 e. Public Policy Considerations: California health care providers have strict obligations 24 with respect to the privacy of their patients. This action seeks to redress Defendants' 25 breach of patient privacy. A class action here serves the important public policy 26 consideration of allowing patients a type of anonymity that allows for the vindication 27 of their rights while still protecting their privacy. 28 II I 7 FIRST AMENDED CLASS ACTION COMPLAINT 1 2 38. There are common questions of law and fact as to the Class that predominate over questions affecting only individual members, including, but not limited to: a. Whether Defendants' recording of patients through a hidden camera violated their 3 4 right to privacy; b. Whether Defendants' v1ewmg of these recording violated the patients' right to 5 6 pnvacy; c. Whether Defendants' obtained the written consent of any patient to this secret 7 8 recording through its admission or other forms; d. Whether Defendants' breached their Code of Conduct regarding Standards of 9 10 Behavior regarding confidentiality of patients; 11 e. Whether Defendants' breached their list of Patient Rights; and 12 f. 13 The appropriate amount of damages, restitution, and/or monetary penalties resulting from Defendant's conduct. 14 FIRST CAUSE OF ACTION 15 Breach of Fiduciary Duty 16 Against All Defendants and on Behalf of Plaintiffs and the Class Members 17 18 19 20 21 39. Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated herein the material allegations set out in the preceding paragraphs. 40. Defendants owed a fiduciary duty to act with the utmost good faith in the best interests of Plaintiff and the Class Members, and to act with reasonable care. 41. Defendants further owed a fiduciary duty to maintain inviolate the confidential 22 information of Plaintiff and the Class Members, including, but not limited to, their confidential 23 communications under California Evidence Code section 992. 24 25 26 42. Defendants had information relating to Plaintiff and the Class Members that they knew or should have known was confidential. 43. Defendants used Plaintiff and the Class Members' confidential information for their own 27 benefit in conducting an internal investigation or communicated their confidential information to third 28 parties, all in violation of California Evidence Code section 994. 8 FIRST AMENDED CLASS ACTION COMPLAINT 1 2 44. their conduct, did not give informed consent, or were acting under duress. 45. 3 4 Plaintiff and the Class Members were ignorant of Defendants' conduct, did not authorize Plaintiff and the Class Members' confidential information was not a matter of general knowledge. 5 46. Plaintiff and the Class members placed trust and confidence in Defendants. 6 47. Defendants acted on behalf of Plaintiff and the Class Members in providing them with 7 medical treatment. 8 48. 9 10 Defendants failed to act as reasonably careful medical professionals would have acted under the same or similar circumstances, thereby breaching their fiduciary duties to Plaintiff and the Class Members. 49. 11 Plaintiff and the Class Members suffered harm, including but not limited to, suffering, 12 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, 13 mortification, hurt feelings, disappointment, depression and feelings of powerlessness. 14 15 Defendants' conduct was a substantial factor in causing Plaintiff and the Class Members' 51. Defendants' conduct as alleged above was despicable; it was conduct so vile, base, or harm. 16 17 50. contemptible that it would be looked down on and despised by reasonable people. 52. 18 Defendants engaged in the conduct alleged above with malice, oppression, or fraud in that 19 Defendants' conduct was done with a willful and knowing disregard of Plaintiff and the Class Members' 20 rights, Defendants' conduct subjected Plaintiff and the Class Members to cruel and unjust hardship in 21 knowing disregard of their rights, or Defendants intentionally concealed a material fact (the secret 22 recording devices) and did so intending to harm Plaintiff and the Class Members or in reckless disregard 23 that such harm would result. 53. 24 25 As a result, in addition to other remedies available, Plaintiff and the Class Members may also recover damages to punish Defendants and deter future similar wrongful conduct. 26 54. Plaintiff and the Class Members are informed and believe that Defendants' conduct is 27 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 28 relief. 9 FIRST AMENDED CLASS ACTION COMPLAINT SECOND CAUSE OF ACTION 2 Unlawful Recording of Confidential Information - Penal Code sections 632 & 637.2 3 Against All Defendants and on Behalf of Plaintiff and the Class Members 4 5 55. Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated herein the material allegations set out in the preceding paragraphs. 6 56. Defendants intentionally video recorded and/or eavesdropped on Plaintiff and the Class 7 Members' confidential communications and medical procedures in the operating rooms of SGH's 8 Women Center by using an electronic device (hidden video cameras). 9 10 57. Plaintiff and the Class Members had a reasonable expectation that their medical procedures were not being video recorded. 11 58. Plaintiff and the Class Members had a reasonable expectation that their communications 12 with medical personnel and their medical procedures were not being viewed by Sharp security personnel 13 or by anyone not physically present in the operating room at the time of these procedures. 14 59. Defendants, by acting as herein alleged, unlawfully recorded confidential information of 15 Plaintiff and the Class Members and violated Plaintiff and the Class Members' privacy rights in violation 16 of California Penal Code §§632 & 637.2. 17 18 60. Defendants did not have the consent of all parties to said conversations and communications to record them. 19 61. Plaintiff and the Class Members suffered harm, including, but not limited to, suffering, 20 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, 21 mortification, hurt feelings, disappointment, depression and feelings of powerlessness. Plaintiff and the 22 Class Members are entitled to treble damages for such harm. 23 24 25 62. Defendants' conduct was a substantial factor in causing Plaintiff and the Class Members' 63. As a result, and in addition to other available remedies at law, pursuant to Penal Code harm. 26 section 63 7 .2, Plaintiff and the Class Members are entitled to recover a sum equal to the greater of treble 27 their actual damages or statutory penalties of five thousand dollars ($5,000) per class member per 28 10 FIRST AMENDED CLASS ACTION COMPLAINT 1 violation. 2 64. Plaintiff and the Class Members, in accordance with Chapter 3 (commencing with Section 3 525) of Title 7 of Part 2 of the Code of Civil Procedure, also bring an action to enjoin and restrain the 4 Defendants from any violation of this chapter by continuing to secretly video record medical procedures 5 without the consent of all parties. 6 THIRD CAUSE OF ACTION 7 Negligent Creation of Medical Information 8 (Civil Code Section 56.101) 9 Against All Defendants and on Behalf of Plaintiff and the Class Members 10 11 65. Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated herein the material allegations set out in the preceding paragraphs. 66. 12 Under the California Confidentiality of Medical Information Act, including, without 13 limitation, Civil Code Section 56.101, Defendants owed Plaintiff and the Class Members a duty to act 14 with reasonable care. 67. 15 The video recordings are medical information and contain individually identifiable 16 information, in electronic form, in possession of or derived from a provider of health care, health care 17 service plan, or contractor regarding a patient's medical history, physical condition, or treatment and the 18 medical infonnation includes or contains an element of personal identifying information sufficient to 19 allow identification of the individual, including information and images that, alone or in combination 20 with other publicly available information, reveals the individual's identity. As such, they are "medical 21 information" within the meaning and intent of California Civil Code section 56.05(j). 22 68. Defendants, by secretly recording Plaintiff and the Class Members, and by acting as 23 alleged above, negligently created medical information in violation of the California Confidentiality of 24 Medical Information Act, Civil Code Section 56.101. 69. 25 At all relevant times, Plaintiff and the Class Members were ignorant of Defendants' 26 conduct and Defendants acted without Plaintiff and the Class Members' authorization or informed 27 consent or Plaintiff and the Class Members were under duress. 28 /// 11 FIRST AMENDED CLASS ACTION COMPLAINT 1 70. Plaintiff and the Class Members suffered harm, including, but not limited to, suffering, 2 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, 3 mortification, hurt feelings, disappointment, depression and feelings of powerlessness. 4 5 71. Defendants' conduct was a substantial factor in causing Plaintiff and the Class Members' 72. As a result, and in addition to any other remedies available at law, pursuant to Civil Code harm. 6 7 section 56.36, Plaintiff and the Class Members are entitled to actual damages and nominal statutory 8 damages in the amount of one thousand dollars ($1,000) per class member per violation. 73. 9 Plaintiff and the Class Members are informed and believe that Defendants' conduct is 10 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 11 relief. 12 FOURTH CAUSE OF ACTION 13 Negligent Maintenance of Medical Information 14 (Civil Code Section 56.101) 15 Against All Defendants and on Behalf of Plaintiff and the Class Members 16 17 18 74. Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated herein the material allegations set out in the preceding paragraphs. 75. Under the California Confidentiality of Medical Information Act, including, without 19 limitation, Civil Code Section 56.l 01, Defendants owed Plaintiff and the Class Members a duty to act 20 with reasonable care. 21 22 23 76. The video recordings are "medical information" within the meanmg and intent of California Civil Code section 56.05(j). 77. Defendants breached their duties and violated the California Confidentiality of Medical 24 Information Act, Civil Code Section 56.101, by allowing their security personnel to view the recordings 25 of Plaintiff and the Class Members and by negligently creating, maintaining, preserving and storing 26 Plaintiff and the Class Members' medical information in a manner that failed to preserve the 27 confidentiality of that information. 28 12 FIRST AMENDED CLASS ACTION COMPLAINT 78. Defendants further breached their duties and again violated the California Confidentiality 2 of Medical Information Act, Civil Code Section 56.10, by disclosing the surreptitious recordings of 3 Plaintiff and the Class Members to third parties during an internal investigation and by acting as alleged 4 above. 5 79. At all relevant times, Plaintiff and the Class Members were ignorant of Defendants' 6 conduct and Defendants acted without Plaintiff and the Class Members' authorization or informed 7 consent or Plaintiff and the Class Members were under duress. 80. 8 9 10 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, mortification, hurt feelings, disappointment, depression and feelings of powerlessness. 11 12 Plaintiff and the Class Members suffered harm, including, but not limited to, suffering, 81. Defendants' conduct was a substantial factor in causing Plaintiff and the Class Members' 82. As a result, and in addition to any other remedies available at law, pursuant to Civil Code harm. 13 14 section 56.36, Plaintiff and the Class Members are entitled to actual damages and nominal statutory 15 damages in the amount of one thousand dollars ($1,000) per class member per violation. 16 83. Plaintiff and the Class Members are informed and believe that Defendants' conduct is 17 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 18 relief. 19 FIFTH CAUSE OF ACTION 20 Unlawful Disclosure of Medical Information 21 (Civil Code Sections 56.10, et seq.) 22 Against All Defendants and on Behalf of Plaintiff and the Class Members 23 24 25 84. Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated herein the material allegations set out in the preceding paragraphs. 85. The California Confidentiality of Medical Information Act, including, without limitation, 26 Civil Code Section 56.10, prohibits health care providers from disclosing a patient's medical information 27 without first obtaining their valid authorization. 28 13 FIRST AMENDED CLASS ACTION COMPLAINT 86. 1 2 California Civil Code section 56.05(j). 87. 3 4 The video recordings are "medical information" within the meanmg and intent of At all relevant times, Defendants owed Plaintiff and the Class Members a duty to maintain the confidentiality of their medical information. 88. 5 Defendants breached their duties and unlawfully disclosed Plaintiff and the Class 6 Members' medical information in violation of the California Confidentiality of Medical Information Act, 7 Civil Code Section 56.101, by allowing their security personnel to view the secret recordings of Plaintiff 8 and the Class Members. 9 89. Defendants again breached their duties and unlawfully disclosed Plaintiff and the Class 10 Members' medical information in violation of the California Confidentiality of Medical Information Act, 11 Civil Code Section 56.10, by disclosing the surreptitious recordings of Plaintiff and the Class Members 12 to third parties during an internal investigation and by acting as alleged above. 90. 13 Defendants failed to obtain a valid authorization to disclose Plaintiff and the Class 14 Members' medical information. Instead, Defendants' conduct was, at all relevant times, without Plaintiff 15 and the Class Members' knowledge, authorization or informed consent or Plaintiff and the Class 16 Members were under duress. 17 91. Defendants' wrongful conduct caused Plaintiff and the Class Members to sustain personal 18 mJury in the form of suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, 19 humiliation, embarrassment, shame, mortification, hurt feelings, disappointment, depression and feelings 20 of powerlessness. 21 92. As a result, and in addition to any other remedies available at law, pursuant to Civil Code 22 section 56.35, Plaintiffs are entitled to recover compensatory damages, punitive damages not to exceed 23 three thousand dollars ($3,000) per class member per violation, attorneys' fees not to exceed one 24 thousand dollars ($1,000) per class member per violation, and the costs of litigation. 25 93. As a result, and in addition to any other remedies available at law, pursuant to Civil Code 26 section 56.36, Plaintiffs are entitled to actual damages and nominal statutory damages in the amount of 27 one thousand dollars ($1,000) per class member per violation. 28 /// 14 FIRST AMENDED CLASS ACTION COMPLAINT 94. 1 Plaintiff and the Class Members are informed and believe that Defendants' conduct is 2 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 3 relief. 4 SIXTH CAUSE OF ACTION 5 Invasion of Privacy - Intrusion Into Private Affairs 6 Against All Defendants and on Behalf of Plaintiff and the Class Members 95. 7 8 herein the material allegations set out in the preceding paragraphs. 9 10 96. Plaintiff and the Class Members had a reasonable expectation of privacy in the operating rooms of Sharp Grossmont Hospital's Women Center. 97. 11 12 Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated Plaintiff and the Class Members also had a reasonable expectation of privacy that their communications with medical personnel and their medical procedures were not being video recorded. 13 98. Plaintiff and the Class Members further had a reasonable expectation that their 14 communications with medical personnel and their medical procedures were not being recorded by Sharp 15 security personnel or by anyone not physically present in the operating room at the time of said 16 communications and procedures. 99. 17 18 Defendants intentionally intruded on Plaintiff and the Class Members' pnvacy by installing recording devices in the operating rooms. 100. 19 Defendants also intentionally intruded on Plaintiff and the Class Members' privacy by 20 recording Plaintiff and the Class Members' confidential communications and medical procedures in the 21 operating rooms of Sharp Grossmont Hospital's Women's Center. 101. 22 Defendants additionally intentionally intruded on Plaintiff and the Class Members' 23 privacy by allowing third parties, including Defendants' security personnel and attorneys, to view the 24 recordings of Plaintiff and the Class Members. 102. 25 Defendants further intentionally intruded on Plaintiff and the Class Members' privacy by 26 disclosing certain recordings of Plaintiff and the Class Members to third parties during the course of an 27 internal investigation. 28 /// 15 FIRST AMENDED CLASS ACTION COMPLAINT 103. 2 rights at a time when Plaintiff and the Class Members' were at their most vulnerable. 104. 3 4 In acting as alleged above, Defendants' conduct was outrageous and motivated by a commercial interest in disregard of Plaintiff and the Class Members' privacy rights. 105. 5 6 In acting as alleged above, Defendants' violated Plaintiff and the Class Members' privacy Defendants' intrusion into Plaintiff and the Class Members' privacy would be highly offensive to a reasonable person. 106. 7 Plaintiff and the Class Members suffered harm, including, but not limited to, suffering, 8 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, 9 mortification, hurt feelings, disappointment, depression and feelings of powerlessness. 10 11 107. Defendants' conduct was a substantial factor in causing Plaintiff and the Class Members' 108. Plaintiff and the Class Members are informed and believe that Defendants' conduct is harm. 12 13 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 14 relief. 15 SEVENTH CAUSE OF ACTION 16 Invasion of Privacy - California Constitution, Art. 1, section 1 17 Against All Defendants and on Behalf of Plaintiff and the Class Members 109. 18 19 herein the material allegations set out in the preceding paragraphs. 110. 20 21 Plaintiff and the Class Members had a reasonable expectation of privacy in the operating rooms of Sharp Grossmont Hospital's Women's Center. 111. 22 23 Plaintiff and the Class Members incorporate by reference and re-allege as if fully stated Plaintiff and the Class Members also had a reasonable expectation of privacy that their communications with medical personnel and their medical procedures were not being video recorded. 112. 24 Plaintiff and the Class Members further had a reasonable expectation that their 25 communications with medical personnel and their medical procedures were not being viewed or heard by 26 Sharp security personnel or by anyone not physically present in the operating room at the time of said 27 conversations, communications and procedures. 28 /// 16 FIRST AMENDED CLASS ACTION COMPLAINT 1 2 113. Defendants intentionally intruded on Plaintiff and the Class Members' pnvacy by installing recording devices in the operating rooms. 114. 3 Defendants also intentionally intruded on Plaintiff and the Class Members' privacy by 4 recording Plaintiff and the Class Members' confidential communications and medical procedures in the 5 operating rooms of Sharp Grossmont Hospital's Women's Center. 6 115. Defendants additionally intentionally intruded on Plaintiff and the Class Members' 7 privacy by allowing Defendants' security personnel to view the recordings of Plaintiff and the Class 8 Members. 9 116. Defendants further intentionally intruded on Plaintiff and the Class Members' privacy by 10 disclosing certain recordings of Plaintiff and the Class Members to third parties during the course of an 11 internal investigation. 117. 12 13 rights under Article I, section 1 of the California Constitution. 14 15 118. In acting as alleged above, Defendants' conduct was outrageous and motivated by a commercial interest in disregard of Plaintiff and the Class Members' privacy rights. 119. 16 17 In acting as alleged above, Defendants' violated Plaintiff and the Class Members' privacy Defendants' intrusion into Plaintiff and the Class Members' privacy would be highly offensive to a reasonable person. 120. 18 Plaintiff and the Class Members suffered harm, including, but not limited to, suffering, 19 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, 20 mortification, hurt feelings, disappointment, depression and feelings of powerlessness. 21 22 121. Defendants' conduct was a substantial factor in causing Plaintiff and the Class Members' 122. Plaintiff and the Class Members are informed and believe that Defendants' conduct is harm. 23 24 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 25 relief. 26 Ill 27 Ill 28 Ill 17 FIRST AMENDED CLASS ACTION COMPLAINT 1 EIGHTH CAUSE OF ACTION 2 Distribution of Private Sexually Explicit Materials - Civil Code section 1708.85 3 Against All Defendants and on Behalf of Plaintiff and the Subclass Members 4 5 123. Plaintiff and the Subclass Members incorporate by reference and re-allege as if fully stated herein the material allegations set out in the preceding paragraphs. 6 124. Plaintiff and the Subclass Members underwent medical procedures on their reproductive 7 organs. During those procedures, Plaintiff and the Subclass Members' intimate body parts were exposed, 8 uncovered and visible. 9 10 125. Plaintiff and the Subclass Members had a reasonable expectation of privacy m the operating rooms of Sharp Grossmont Hospital's Women's Center. 126. 11 Plaintiff and the Subclass Members also had a reasonable expectation of privacy that their 12 communications with medical personnel and their medical procedures were private and would remain 13 private. 14 15 127. Defendants knew or should have known of Plaintiff and the Subclass Members' privacy expectations. 16 128. Defendants intentionally intruded on Plaintiff and the Subclass Members' privacy by 17 recording Plaintiff and the Subclass Members while they were in the operating rooms of Sharp 18 Grossmont Hospital's Women Center and by capturing on video camera Plaintiff and the Subclass 19 Members' intimate body parts. 20 129. Defendants intentionally distributed the secret video recordings of Plaintiff and the 21 Subclass Members to third parties, including Defendants' non-medical employees, security guards, and 22 attorneys for review. 23 130. 24 Defendants also intentionally distributed the secret video recordings of Plaintiff and the Subclass Members to third parties during the course of an internal investigation. 25 131. Plaintiff and the Subclass Members are informed and believe that many of these secret 26 recordings show Plaintiff and the Subclass Members' intimate body parts, such as parts of their genitals 27 or parts of their breasts below the areola. 28 /// 18 FIRST AMENDED CLASS ACTION COMPLAINT 132. 1 2 Plaintiff and the Subclass Members did not consent to Defendants' distribution of these video recordings. 133. 3 In acting as alleged above, Defendants violated Plaintiff and the Subclass Members' 4 privacy rights and unlawfully distributed Plaintiff and the Subclass Members' private sexually explicit 5 materials in violation of Civil Code section 1708.85. 6 134. Plaintiff and the Subclass Members suffered harm, including, but not limited to, suffering, 7 anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, shame, 8 mortification, hurt feelings, disappointment, depression and feelings of powerlessness. 9 10 135. Defendants' conduct was a substantial factor in causing Plaintiff and the Subclass Members' harm. 136. 11 Plaintiff and the Subclass Members are informed and believe that Defendants' conduct is 12 ongoing and will cause irreparable harm if an injunction does not issue, and therefore seek injunctive 13 relief. 14 15 16 PRAYER FOR RELIEF Plaintiff, on behalf of herself and all others similarly situated, prays for relief and judgment against Defendants, jointly and severally as follows: 17 1. That this action be certified as a class action; 18 2. For general damages according to proof; 19 3. For special damages according to proof; 20 4. For nominal damages according to proof; 21 5. For treble damages according to proof; 22 6. For statutory penalties according to proof; 23 7. For punitive damages according to proof; 24 8. For statutory attorneys' fees according to proof; 25 9. For reasonable attorneys' fees; 26 10. For the costs of the litigation; 27 11. For an injunction ordering Defendants to cease and desist from the unlawful conduct 28 described herein; and 19 FIRST AMENDED CLASS ACTION COMPLAINT 1 12. For such other and further relief as is just and proper. 2 3 Dated: July 29, 2016 PATTERSON LAW GROUP 4 B~ ~itChell 5 6 7 Attomevs for Plaintiff MELISSA ESCALERA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 FIRST AMENDED CLASS ACTION COMPLAINT 5 James R. Patterson, State Bar No. 211102 Allison H. Goddard, State Bar No. 211098 Elizabeth A. Mitchell, State Bar No. 204853 Catherine S. Wicker, State Bar No. 306494 PATTERSON LAW GROUP APC 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 756-6990 Facsimile: (619) 756-6991 6 Attorneys for Plaintiff MELISSA ESCALERA 2 3 4 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN DIEGO - CENTRAL DIVISION 11 12 13 MELISSA ESCALERA, on behalf of herself and all others similarly situated, 14 Plaintiff, 15 vs. 16 17 18 Case No. 37-2016-00017392-CU-PO-CTL [E-FILE] PROOF OF SERVICE SHARP HEALTHCARE, a California Corporation, SHARP GROSSMONT HOSPITAL, and DOES 1100, inclusive, Defendants. 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 1 PROOF OF SERVICE 2 I, the undersigned, say: I am over 18 years of age, employed in the County of San Diego, California, in which the within-mentioned service occurred; and that I am not a party to the subject cause. My business address is 402 West Broadway, 29th Floor, San Diego, California 92101. 3 On July 29, 2016, I caused the following document(s) to be served: 4 5 6 • FIRST AMENDED COMPLAINT to each addressee named herein and addressed as follows: Teresa C. Chow tchow@bakerlaw.com Daniel M. Goldberg dgoldberg@bakerlaw.com BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: 310.820.8800 Facsimile: 310.820.8859 Attorneys for Defendants 7 8 9 10 11 12 13 MAIL. I am familiar with this firm's practice of collection and processing correspondence ( y.. )BY for mailing with the United States Postal Service, and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business pursuant to Code of Civil Procedure §1013a. 14 15 16 ('I )BY ELECTRONIC MAIL TRANSMISSION: A PDF format copy of such document(s) was sent by via e-mail or electronic mail transmission thru OneLegal.com to each such person at the e-mail address on the service list. The transmission was reported as complete and without error. 17 ( 18 )BY OVERNIGHT MAIL. I caused such envelope to be delivered via overnight delivery addressed as indicated on the attached service list. Such envelope was deposited for delivery with Federal Express this same day in the ordinary course of business. 19 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 29, 2016. 21 Tupu O'Neill 22 23 24 25 26 27 28 PROOF OF SERVICE