Case Documentl Filed 07/06/18 PagelD.1 Pagelof 10 Bibianne U. Fell (SBN 234194) Patrick C. Stormes-Swan (SBN 306526) GOMEZ TRIAL ATTORNEYS 655 W. Broadway, Suite 1700 San Diego, CA 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496 Attorneys for Plaintiff Linda Sanchez UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Linda Sanchez, an individual, Case No: AJB AGS Plaintiff, COMPLAINT FOR DAMAGES V. UNITED STATES OF and Assigned to: DOES 1 through 50, inclusive, Department: Defendants. JURISDICTION AND VENUE 1. This action arises under the Federal Torts Claims Act. 2. This Court has jurisdiction under 28 U.S.C. section 1346(b). 3. For approximately three months, from around May 2017 to mid-July 2017, Leon Fajerman, MD. Fajerman?), then 74-years-old, committed acts of sexual harassment and contact against his patient, Linda Sanchez. The series of events and/or omissions to act giving rise to this action occurred in San Diego County, CA. 4. Dr. Fajerman had a history and practice of committing sexual acts against his patients at San Ysidro Health Center. There are a number of other similar incidents -1- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.2 PageZof 10 involving other female patients to date who were also sexually harassed and abused by Dr. Fajerman at San Ysidro Health Center. 5. San Ysidro Health Center is a federally quali?ed health center and a Federal Torts Claims Act deemed facility. 6. On information and belief, Dr. Fajerman was acting within the course and scope of his employment with San Ysidro Health Center and San Ysidro Health Admin- istration when he committed acts of sexual harassment and contact against Plaintiff. 7. On information and belief, federal of?cers, employees, and servants of the United States, while working in the course and scope of their employment, negligently hired, supervised, and retained Dr. Faj erman, and failed to warn others about his sexual advances and conduct with his patients at San Ysidro Health Center. 8. On information and belief, federal of?cers, employees, and servants of the United States, while working in the course and scope of their employment, dropped Plaintiff from care after Dr. Faj erman committed acts of sexual harassment and contact, and failed to provide for medication management leaving Plaintiff to go into withdrawal. 9. Venue is proper in the United States District Court for the Southern District of California because Plaintiff resides in this district and a substantial part of the events or omissions giving rise to this claim occurred in this district. 32 C.F.R. THE PARTIES 10. Plaintiff is a female adult residing in San Diego County, California. 11. Plaintiff is informed and believes that at the time of the series of events or omissions giving rise to this action, Dr. Fajerman was employed by San Ysidro Health Center and San Ysidro Health Administration, and he resided in San Diego, California. 12. Plaintiff is informed and believes that at the time of the series of events or omissions giving rise to this action, Defendant United States of America was a govern? mental entity organized under the Constitution of the United States. 13. Plaintiff is informed and believes that Defendant United States of America is vicariously liable for the negligent acts of its employee Dr. Faj erman, who was acting -2- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.3 Page30f 10 in the course and scope of his employment at all relevant times as an of?cer, employee, or servant of Defendant United States of America. 14. Plaintiff is informed and believes that Defendant United States of America is liable for the negligent acts of its of?cers, employees, and servants who, while acting in the course and scope of their employment, negligently hired, supervised, and retained Dr. Faj erman, or who failed to warn Plaintiff and others about Dr. Faj erman?s sexual advances and conduct with his patients at San Ysidro Health Center. 15. Plaintiff is informed and believes that Defendant United States of America is liable for the negligent acts of its of?cers, employees, and servants who, while acting in the course and scope of their employment, dropped Plaintiff from appropriate care after Dr. Faj erman committed acts of sexual harassment and contact, and failed to provide for medication management leaving Plaintiff to go into withdrawal. PROCEDURAL ALLEGATIONS 16. On or around November 6, 2017, Plaintiff served on Defendant United States of America a written claim for damage, injury, or death under the FTCA. 17. On or around April 2, 2018, the Department of Health Human Services denied Plaintiff 5 written claim for damage, injury, or death under the TCA. 18. Under 28 U.S.C 2675(a), Plaintiff now ?les this action. GENERAL ALLEGATIONS 19. On or around December 16, 2016, Plaintiff presented to Dr. Faj erman for the ?rst time for a appointment at a San Ysidro Health Center facility in Chula Vista, CA. 20. On or around January 31, 2017, Plaintiff presented to Dr. Fajerman for a second appointment at a SYHC facility in Chula Vista. 21. On or around March 31, 2017, Plaintiff presented to Dr. Fajerman for a third appointment at a SYHC facility in Chula Vista. When Plaintiff entered the appointment room, Dr. Fajerman commented on how ?inviting? she looked. Plaintiff asked Dr. Faj erman what he meant by his comment. Dr. Fajerman replied that Plaintiff -3- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.4 Page4of 10 looked inviting to men. Plaintiff asked for further clari?cation, at which point Dr. Fajer- man changed the subject of discussion. 22. At or near the end of Plaintiff? 3 appointment with Dr. Faj erman on or around March 31, 2017, Plaintiff began to cry. Dr. Fajerman approached Plaintiff in session and embraced her. While embracing Plaintiff, Dr. Fajerman pushed his chest against her chest, causing her to feel uncomfortable. Plaintiff told Dr. Fajerman that she was okay, at which point Dr. aj erman let her go. Plaintiff then left the appointment. 23. On or around May 12, 2017, Plaintiff presented to Dr. Fajerman for a fourth appointment at a SYHC facility in Chula Vista. At or near the end of the appointment, Plaintiff stood up to leave. Dr. Faj erman stood up and met Plaintiff face-to- face before she could exit the room. Dr. Fajerman pushed Plaintiff against a wall of the room and forcibly kissed her on the mouth and groped one of her breasts with his hand. Plaintiff asked Dr. Faj erman why he was doing this to which he responded, ?when you like something, you go for it.? Plaintiff was in shock and did not know what to do. Plaintiff told Dr. Faj erman that someone would see them through a window of the room. Dr. Fajerman responded to Plaintiff that he had another of?ce nearby the SYHC facility. Dr. Faj erman asked Plaintiff to meet him there later that day where they could talk further and ?continue this.? Plaintiff left the room and did not meet Dr. Faj erman later that day. 24. On or around June 9, 2017, Plaintiff presented to Dr. Fajerman for a ?fth appointment at a SYHC facility in Chula Vista. During this appointment, it appeared to Plaintiff that Dr. Faj erman was groping or otherwise touching himself in or around his groin area. At or near the end of the appointment, Dr. Faj erman stood up from his seat. Plaintiff believed this meant her appointment was over, so she stood up as well. Dr. Faj erman approached Plaintiff, embraced her, and began to forcibly kiss her on the mouth. Dr. Faj erman then pushed Plaintiff back into one of the comers of the room and continued to forcibly kiss her. Dr. Faj erman pressed his body against her body and then groped one of her breasts. Dr. Fajerman reached under Plaintiff? blouse with one of his hands but Plaintiff pushed his hand down before it could reach beyond her stomach area. -4- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.5 Page50f 10 Dr. Faj erman asked Plaintiff if she could meet him later at his ?private of?ce.? Plaintiff said ?yes? so that Dr. Fajerman would stop. Dr. Fajerman let Plaintiff go, and explained to her where his private of?ce was located. Plaintiff left the appointment and did not meet Dr. Faj erman at his private of?ce later that day. 25. The next day, on or around June 10, 2018, Plaintiff arrived at her residence after dropping off her child at school. Plaintiff observed a car pull up to her residence. The driver rolled down the window and Plaintiff recognized the driver as Dr. Fajerman. Plaintiff was shocked and fearful upon seeing this and asked Dr. Faj erman what he was doing there. Dr. Faj erman replied that he thought they were going to his private of?ce. Plaintiff replied that there was no way she could go to his private of?ce. Dr. Faj erman became upset and sped off. 26. Over the next weeks following the encounter on or around June 10, 2017, Dr. Faj erman called Plaintiff multiple times. Among other things, Dr. Fajerman asked about or tried to coordinate a private meeting with Plaintiff during those phone calls. 27. Throughout the months leading up to an including mid-July 2017, Plaintiff had been experiencing signi?cant emotional distress due to a close family member?s medical issues. Plaintiffs family member ultimately died from these issues. 28. During one of the aforementioned phone calls with Dr. Fajerman, Plaintiff agreed to meet Dr. aj erman at his private of?ce in the hope that he could prescribe her certain medications to help her cope with her signi?cant emotional distress. 29. On the day of the meeting, in or around mid-July 2017, Plaintiff began to feel uneasy about the situation and contacted Dr. Faj erman to tell him that she was having an issue with her car. Dr. Faj erman offered to pick up Plaintiff at her residence, which he proceeded to do. Dr. Fajerman drove Plaintiff to a brown of?ce building in Chula Vista, where he proceeded to take her to take her to a private of?ce located on the second ?oor. 30. Once they reached and entered the private of?ce, Dr. Faj erman grabbed Plaintiff arm and pushed her onto a couch. Dr. Fajerman got on top of Plaintiff and kissed her and groped her breasts and genitalia over her clothes. -5- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.6 Page6of 10 31. Plaintiff felt Dr. Faj erman?s erect penis pressed up against her body. 32. Plaintiff was petrified. She managed to get up from beneath Dr. Faj erman and off the couch in the of?ce. She told Dr. Fajerman that she was hypoglycemic and that she would faint if she did not eat soon. Dr. Fajerman said that they could leave only if Plaintiff ?showed him something.? Plaintiff turned away from him and brie?y pulled down her pants and showed him her buttocks. Dr. Faj erman lunged at her, but Plaintiff went to the door and opened it. Dr. Fajerman told Plaintiff, in Spanish, that he was going to give her a kiss. Plaintiff responded that he had to take her to eat something soon as she felt very ill. 33. Dr. ajerman agreed to drive Plaintiff to a nearby restaurant to eat. After a meal, Dr. Fajerman began to drive Plaintiff back to his private office. Plaintiff felt very frightened and told Dr. Fajerman that she could not go back because she had to pick up her child from school. Dr. Fajerman became upset, drove Plaintiff back to her residence, and sped off. 34. At no point during Plaintiff? treatment or interactions with Dr. Faj erman was Plaintiff informed by Dr. aj erman or SYHC that his medical license was being reviewed for suspension by the Medical Board for similar inappropriate conduct against another patient, or that it was in fact suspended by the Medical Board for such conduct. 35. After Plaintiff? encounter with Dr. Faj erman in mid-July 2017, Plaintiff learned there were a number of other patients who were sexually harassed and assaulted by Dr. Fajerman at or around the same time period, or before her visits with him for a year period, in the similar or same manner she was harassed and assaulted by him. 36. After Plaintiff encounter with Dr. Faj erman in mid-July 2017, and after Dr. Fajerman?s medical license was suspended by the Medical Board, SYHC cancelled Plaintiff? outstanding appointments with Dr. Faj erman and scheduled Plaintiff to see a nurse practitioner. The nurse cut the medication ?Clonazepam? Plaintiff had been on for seven years by two-thirds without any taper. Plaintiff went into withdraws as a result, and SYHC did not timely schedule an appointment for Plaintiff with a -6- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.7 Page7of 10 37. Plaintiff has also been dropped from care multiple times from SYHC following her treatment with Dr. Faj erman. SYHC sent letters to Plaintiff advising that it is discontinuing care without explanation. When Plaintiff went to schedule appointments with another provider, there was a six-month waiting period to be seen by a These drops in care from SYHC and delay in obtaining healthcare treatment resulted in her not receiving appropriate medical care or mental healthcare treatment. 38. Further, for Plaintiff to ultimately receive healthcare services at SYHC, SYHC required Plaintiff to see mental health providers in the same of?ce in which she was assaulted. This caused Plaintiff to suffer further and continued emotional distress. 39. After a series of complaints to the Medical Board, Dr. Fajerman surrendered his medical license in May 2018 due to this series of sexual abuses of patients. He is now being prosecuted for his sexual acts of contact against patients in his care. FIRST COUNT: Negligence (Against Defendant United States of America and DOES 1-50, Inclusive) 40. Plaintiff re-alleges and incorporates by reference all of the allegations contained in paragraphs 1-39 above. 41. As a health care practitioner, Dr. Faj erman held himself out as a skilled, quali?ed, able, experienced, and knowledgeable professional with good judgment in the area of treatment. Plaintiff relied on Dr. Faj erman?s representations of skill, quali?cations, abilities, judgment, and knowledge of care. SYHC and San Ysidro Health Administration made similar representations as to Dr. Faj erman?s skill, quali?cations, experiences, and knowledge to patients. 42. From and after the time of employment, Dr. Fajerman negligently failed to exercise the proper degree of knowledge and skill (including in examining, diagnosing, monitoring, ordering testing, treating, prescribing, warning, treating, and caring) and quali?cation, ability, experience, and judgment ordinarily possessed and exercised by other health care providers and other health facilities and clinics, and the like, engaged in the same profession or similar locality as Dr. Fajerman. -7- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.8 Page80f 10 43. Dr. Fajerman failed to exercise the proper degree of knowledge and skill because he negligently, carelessly, recklessly, and unlawfully treated, provided care, monitored, and/or examined Plaintiff, and ultimately failed to adequately treat and properly protect Plaintiff by and through his aforementioned conduct. This negligence includes, but is not limited to, engaging in inappropriate conversations, inappropriate physical contact, inappropriate interactions outside the of?ce setting (including but not limited to driving to Plaintiff?s home, picking up Plaintiff from her home, taking Plaintiff out to eat, taking Plaintiff to his private of?ce, and calling Plaintiff on the telephone), and making sexual advances to Plaintiff. 44. Further, Dr. Fajerman failed to advise Plaintiff that his medical license was being reviewed for suspension of similar inappropriate conduct as to another patient, and failed to advise Plaintiff that his license was in fact suspended for such conduct. He also failed to ensure that Plaintiff continue to get necessary mental healthcare treatment and medication management when she stopped coming to him for treatment. 45. Dr. Faj erman?s negligence in administering Plaintiff? 3 medical care and mental healthcare treatment directly and proximately caused Plaintiff to suffer injuries and serious emotional distress. It was a substantial factor in causing Plaintiffs harm. 46. Dr. Faj erman was acting in the course and scope of his employment with San Ysidro Health Center and San Ysidro Health Administration when he performed his negligent acts or omissions. 47. Of?cials, employees, and servants at SYHC and San Ysidro Health Admin- istration, while working in the course and scope of their employment, negligently hired, supervised, and retained Dr. Fajerman as a at SYCH and San Ysidro Health Administration. SYHC knew or should have known about Dr. Faj erman?s history and practice of sexual contact (or attempted sexual contact) with patients in his case, and that he should not have been hired or retained. 48. Further, of?cials, employees, and servants at SYHC and San Ysidro Health Administration, while working in the course and scope of their employment, also failed COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.9 Pagegof 10 to warn others about Dr. aj erman?s sexual advances and conduct with his patients at SYHC. This negligence includes, but is not limited to, SYHC continuing to schedule appointments for Dr. Fajerman to see Plaintiff despite knowing or having reason to know that he posed a danger to his clients, SYHC failing to advise Plaintiff when it became aware Dr. aj erman?s license was suspended and for what conduct his licensed was suspended, and SYHC failing to follow-up with Plaintiff and ascertain if she was a victim and additional medical care and mental healthcare support that was needed. 49. As a result of such negligent acts and omissions to act, Plaintiff did not receive prompt intervention, continued treatment, or appropriate care. This led to her experiencing withdraws and be dropped from care. Further, SYHC ultimately required that Plaintiff see mental health providers in the same SYHC of?ce in which she was assaulted. This caused her to suffer additional and repeated emotional distress. 50. Dr. aj erman had a history of sexual harassment and contact with his patients, yet he was hired and able to retain his employment at San Ysidro Health Center and San Ysidro Health Administration, and his patients were not warned about his inappropriate sexual behavior. 51. Had of?cials, employees, and servants at San Ysidro Health Center and San Ysidro Health Administration performed their ?inctions and reviewed Dr. Faj erman?s degree of knowledge, skill, quali?cation, ability, experience, and judgment, they would have recognized his un?tness to serve as a medical professional at San Ysidro Health Center and San Ysidro Health Administration and suspended or terminated his employment and warned patients about his improper conduct. 52. The acts and omissions comprising the negligent hiring, supervision, and retention claims are not based upon the exercise or performance of failure to exercise or perform a discretionary function of the United States government. 53. These negligent acts and omissions directly and proximately caused Plaintiff to suffer economic and non-economic harm. These negligent acts and omissions were a substantial factor in causing Plaintiff? harm. -9- COMPLAINT FOR DAMAGES Case Documentl Filed 07/06/18 PagelD.1O Page 10 of 10 PRAYER FOR RELIEF Plaintiff prays for judgment against Defendants, and each of them, as follows: 1. 2. 3. 4. For special and general damages, in an amount to be proven at trial. For interest as permitted by law. For cost of suit. For such other and further relief as the Court deems proper. The paragraphs of this complaint alleged on information and belief are 1?5 3. DEMAND FOR JURY TRIAL Plaintiff requests a jury trial for all triable claims. DATED: July 5, 2018 GOMEZ TRIAL ATTORNEYS Bibianne U. Fell Patrick C. Stormes-Swan Attorneys for Plaintiff -10- COMPLAINT FOR DAMAGES