Court grants leave for third amended complaint in suit against Montage Health

By Gabriel Neves | Feb 8, 2019

SAN JOSE – A federal court is permitting a woman to file a third amended complaint in her suit against a hospital for allegedly failing to administer a rape kit.

Judge Virginia Demarchi, on the bench of the U.S. District Court for the Northern District of California, San Jose Division, issued a 15-page ruling on Jan. 30 allowing a third amended complaint (TAC) in the lawsuit filed by Kelly Schramm against Montage Health.

The court allowed Schramm to file an amended complaint, reconsidering the claims of violations of the Americans with Disabilities Act (ADA) and of the Emergency Medical Treatment and Active Labor Act (EMTALA).

"Schramm has amended her allegations in the proposed TAC to address the court’s earlier concern regarding 'a real and immediate threat of repeated injury in the future,'" the ruling states. 

Schramm filed her first complaint in 2017 against Montage Health alleging she was forcibly taken to Community Hospital of the Monterey Peninsula (CHOMP), operated by the defendant, right after a sexual assault.

As stated in the ruling, "Schramm alleges that in May 2015, she was taken to CHOMP against her wishes for medical attention following a sexual assault, where defendants failed to administer a rape kit or take her rape allegation seriously because they knew she suffered from bipolar disorder." 

She described the actions on the hospital's part as "'diagnostic overshadowing,' in which mentally ill patients receive inadequate or delayed treatment on account of the misattribution of their physical symptoms to their mental illness."

After allegedly not having any care from the hospital staff, Schramm attempted to leave the hospital, but, per the ruling, she "was not permitted to leave and was instead forcibly restrained (resulting in additional physical injuries), administered inappropriate medication, catheterized, and eventually formally detained pursuant to California Welfare and Institutions Code § 5150 for three days and two nights."

After not being able to pursue charges against her assailant allegedly because the defendant failed to administer a rape kit, Schramm filed the suit against Montage Health, and her second amended complaint was dismissed.

In her ruling, Demarchi reconsidered the dismissed claims, as well as set a date of Feb. 8 for Schramm to file the third amended complaint.

U.S. District Court for the Northern District of California, San Jose Division Case number 5:17-cv-02757-VKD

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