Judge: David A. Hoffer, Case: 30-2022-1239096, Date: 2022-11-07 Tentative Ruling

Defendant AHMC Anaheim Regional Medical Center LP’s (“AHMC”) Demurrer to plaintiffs Jolene Avila and Susan Chappell’s (“Plaintiffs” together) First Amended Complaint (“FAC”) is OVERRULED.

AHMC demurred solely to the second cause of action for Elder Abuse pursuant to Civ. Proc. Code § 430.10(e).

As with the original complaint, this cause of action appears to be based on elder abuse from neglect as opposed to another form of elder abuse.  Failure to provide medical care is a form of “neglect” that supports an elder abuse cause of action.  (Welf. & Inst. Code § 15610.07(a); Welf. & Inst. Code § 15610.57(b)(2); (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 (“Covenant Care”).)

“[N]eglect as a form of abuse under the Elder Abuse Act refers “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” [Citation.] Thus, when the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, supra, 32 Cal.4th at 783).)”  (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404–05 (“Carter”).)  “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder. (Welf. & Inst.Code, § 15657.2; [Citation].) The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (Welf. & Inst.Code, § 15657.) Oppression, fraud and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious' wrongdoing of a ‘despicable’ or ‘injurious' nature.” [Citation] Recklessness involves “ ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur” and “rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’” [Citation.]  Thus, the enhanced remedies are available only for “‘acts of egregious abuse’ against elder and dependent adults.” ([Citation]; see also Covenant Care, supra, 32 Cal.4th at p. 786, [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs”].) In short, “[i]n order to obtain the Act's heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, at p. 789.).”  (Carter, supra, 198 Cal. App. 4th at 405.)

“The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst.Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); [Citation]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [Citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) (Welf. & Inst.Code, §§ 15610.07, subd. (b); 15610.57, subd. (b), 15657; Covenant Care, supra, 32 Cal.4th at pp. 783, 786; [Citation]). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst.Code, §§ 15610.07, subds. (a), (b), 15657; [Citations.].) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.”  (Carter, supra, 198 Cal. App. 4th at 406-07.)

Unlike the original complaint, Plaintiffs’ FAC has now alleged defendants failed to provide medical care in the form of dialysis, which was ordered multiple times over three days including on a “stat” basis.  (FAC ¶ 16.)  Plaintiffs allege the decision to withhold dialysis was intentional on the part of AHMC as Plaintiffs were told by a director (Margaret Martin) and a chief nursing officer (Lisa Hahn) of AHMC that Mellor’s needs outweighed AHMC’s resources.  (Id.)  In other words, as alleged, AHMC placed its financial interests ahead of those of a patient under its care and there was a conscious decision not to provide said care.  This willful and/or conscious decision to withhold medically necessary care allegedly for pecuniary gain despite the high degree of probability Mellor would suffer injury, supports the recklessness, oppression, and/or malice in the commission of the neglect.  (Welf. & Inst.Code §§ 15610.07(a), 15610.57, and 15657; Carter, supra, 198 Cal. App. 4th at 405.)  While it is unclear if Martin and/or Hahn were the director/officer responsible for making the decision to withhold dialysis, Plaintiffs have at least identified individuals with director/officer level authority at AHMC who may have been personally responsible for making that decision.  (Grieves v. Superior Ct. (1984) 157 Cal. App. 3d 159, 168.)  As a result of dialysis not being provided and/or Mellor not being transferred to another facility for care, Mellor’s health deteriorated and Mellor passed away from complications related to her kidney disease and denial of dialysis.  (FAC ¶ 16.)  Finally, Plaintiffs alleged AHMC had advanced knowledge of unfitness of other defendants and DOES 11 through 20, and employed and retained those parties with knowing disregard of the rights and safety of others, adopted/approved misconduct by the other defendants, and that other defendants were not disciplined for misconduct toward Mellor after such facts were made known.  (FAC ¶ 19.)

While Plaintiffs will ultimately need to demonstrate by clear and convincing evidence that AHMC is guilty of something more than mere or gross negligence in order to prevail on the elder abuse cause of action, Plaintiffs have, for the time being, pled sufficient facts to move this cause of action beyond the pleading stage.

The demurrer is overruled.  Defendants are to answer the complaint within 10 days.  Plaintiffs are ordered to give notice of this ruling.