Judge: Frank M. Tavelman, Case: 21STCV18294, Date: 2023-08-11 Tentative Ruling
REQUESTING ORAL ARGUMENT PER CRC 3.1308
The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.
The
Court will indicate in the Tentative Ruling whether the Court is requesting oral argument. For cases where the Court is not requesting argument, then pursuant to
California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is
required. Unless the Court directs argument in the Tentative Ruling, no
argument will be permitted unless a “party notifies all other parties and the
court by 4:00 p.m. on the court day before the hearing of the party’s intention
to appear and argue. The tentative ruling will become the ruling of the
court if no notice of intent to appear is received.”
Notice
may be given either by email at BurDeptA@LACourt.org or by telephone at (818)
260-8412.
Notice of the ruling must be served as indicated in the tentative. Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.
Case Number: 21STCV18294 Hearing Date: January 8, 2024 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
RULING ON
SUBMITTED MATTER
JANUARY 8, 2024
MOTION
FOR SUMMARY JUDGMENT / ADJUDICATION
BHC
ALHAMBRA HOSPITAL
Los Angeles Superior Court
Case # 21STCV18294
MP: BHC Alhambra Hospital (Defendant)
RP: Olga
Zharovskaya (Plaintiff)
NOTE: For convenience of expedited access by
counsel, the Court is posting this matter on the Tentative Ruling website;
however, it is a Ruling on the Submitted Matter.
The Court
issued a Tentative Ruling and heard argument on December 18, 2023. While the moving party argued for the
complete summary judgment, they strongly encouraged the court to reevaluate the
initial denial of the summary adjudication as to the second and third causes of
actions, Dependent Adult Abuse and Willful Misconduct. Plaintiff argues that BHC’s reference to a
higher standard that the neglect was committed with recklessness, malice,
oppression or fraud was misplaced in that it applied to enhanced damages only. Defendant cites to, inter alia, Delaney v. Baker (1999) 20 Cal. 4th
23, 32 to support their position, but Plaintiff argued that the heighted
requirements are for heightened damages under the statute and not for regular
damages. The Court concurs. While
the Plaintiff may not ultimately be able to show heightened damages under the
statute, that does not alter their ability to show regular damages against a
party that is in a caretaker capacity. The
Court will adopt its tentative as the Court’s final ruling; however, the Court
inadvertently overlooked addressing the issue of punitive damages which is
addressed herein.
ALLEGATIONS:
On May
14, 2023, Olga Zharovskaya (“Plaintiff”) filed suit against BHC Alhambra
Hospital (“Defendant”). Plaintiff alleges Defendant was negligent in her care
and in the supervision of a third-party patient (“TPP”) who attacked Plaintiff
while she was a patient at Defendant’s hospital. The Complaint contains causes
of action for (1) Professional Negligence, (2) Dependent Adult Abuse, and (3)
Willful Misconduct.
Defendant now moves for summary judgment. Defendant argues no triable
issue of fact exists as to whether the actions of its staff in caring for
Plaintiff fell below the standard of care. In the alternative, Plaintiff moves
for summary adjudication of Plaintiff’s second and third causes of action.
Plaintiff opposes and Defendant replies.
The matter was originally on the Court’s calendar for December 15, 2023,
which the Court on its own motion continued to December 18, 2023 at 9:00 a.m. The matter was argued and taken under
submission.
EVIDENTIARY OBJECTIONS:
Plaintiff’s evidentiary objections to the declaration of Denise K. Rounds
are OVERRULED. Plaintiff objects to the entirety of the declaration on grounds
that Rounds, a registered nurse, is not a qualified expert for purposes of
opining on the standard of care. As Plaintiff notes, Evidence Code §
720(a) states, “a person is qualified to testify as an expert if her has
special knowledge, skill, expertise, training, or education sufficient to
qualify them as an expert on the subject to which the testimony relates.” Having
reviewed her curriculum vitae and qualifications as a Psychiatric Nurse expert,
the Court finds Rounds qualified to testify as to the standard of care for
facilities providing psychiatric nursing services. Further, Plaintiff does not
substantively brief her individual evidentiary objections to the declaration
and appears to have repeated the same objections to each regardless of the
statement’s content.
Defendant’s evidentiary
objections to the declarations of David Rudnick and Gary Mittelberg are
OVERRULED except as noted below. Defendant does not substantively brief their
individual evidentiary objections to the declarations and appears to have
repeated the same objections to each regardless of the statement’s content. For example, Defendant objects as the
declaration lacks foundation and calls for speculation; however, pages 2 and 3
of the declaration set forth an extensive list of the foundation upon which Dr.
Rudnick relied. RUDNICK SUSTAINED
OBJECTIONS: Numbers 6 (Improper Expert Opinion), and 9 (Speculation). MITTELBERG SUSTAINED OBJECTIONS: Number 27
(Speculation)
JUDICIAL NOTICE:
Plaintiff requests the Court take judicial notice of a jury verdict
rendered in the case Gerard v. BHC Alhambra Hospital, Inc. LASC
Case No. SC110387. Plaintiff does not substantively brief why notice should be
taken and the Court declines the request.
ANALYSIS:
I.
LEGAL
STANDARD
The
function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party cannot show evidentiary support
for a pleading or claim and to enable an order of summary dismissal without the
need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th
826, 843.) C.C.P.¿§ 437c(c) “requires the trial judge to grant summary judgment
if all the evidence submitted, and ‘all inferences reasonably deducible from
the evidence’ and uncontradicted by other inferences or evidence, show that
there is no triable issue as to¿any material fact and that the moving party is
entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion
for summary judgment is to delimit the scope of the issues; the function of the
affidavits or declarations is to disclose whether there is any triable issue of
fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of
Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v.
Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿
¿
As to
each claim as framed by the complaint, the defendant moving for summary
judgment must satisfy the initial burden of proof by presenting facts to negate
an essential element, or to establish a defense. (C.C.P.¿§437c(p)(2);¿Scalf v.
D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.” (Dore v.
Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿
¿
Once the
defendant has met that burden, the burden shifts to the plaintiff to show that
a triable issue of one or more material facts exists as to that cause of action
or a defense thereto. To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster
v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿
II.
MERITS
Background
Plaintiff was admitted to Defendant’s facility
on May 17, 2020. (Mot. Exh. 1, p.1.) Upon admission Plaintiff was examined by
Dr. Leonard Jones (“Jones”). (Id.) Jones noted that Plaintiff was “very
psychotic, hyperreligious and tangential” and that Plaintiff was not eating or
sleeping. (Id.) Jones noted that Plaintiff was admitted to Defendant’s
facility on a 5150-hold as “gravely disabled” and estimated her stay would be
three to five days. (Id. at p.2.) Jones issued Physician Admissions
Orders for Plaintiff prescribing Ativan, Restoril, and later Zyprexa. (Id.
at p. 91-92.)
TPP was admitted to Defendant’s facility on May
9, 2023 on a 5150-hold secondary to being a danger to others. (Mot. Exh. 2, p.
8-10.) TPP was placed on hold after he was evaluated for hearing voices,
threatening to kill his brother, and threatening to burn down his house. (Id.)
TPP was evaluated by Dr. Wakelin McNeel (“McNeel”) on May 10, 2023, who noted
TPP was not taking his usually prescribed medication. (Id.) McNeel
estimated TPP’s stay at Defendant’s facility to be between three and seven
days. (Id.)
On May 10, 2023, TPP was observed by a
housekeeper to have pulled the blanket off his roommate and punched the
roommate in the face. (Opp. Exh. C, p. 17.) TPP was then determined to be a
high risk of injury to others and transferred to a secluded unit known as the
“Open Time Out” (“OTO”) room. (Id.) McNeel ordered an emergency
treatment plan which directed that TPP be encouraged seek out staff if he was
feeling agitated. (Id. at p. 47.) TPP was transferred out of the OTO on
May 12, 2023. (Id.) TPP was ordered to be observed every 15 minutes by
McNeel. (Mot. Exh. 2, p.74.) TPP remained on 15-minute observation the entirety
of his stay at Defendant’s facility. (Id. p. 273-297.)
At around 3:00 a.m. on May 20, 2023, TPP left
his room and entered Plaintiff’s room uninhibited. (Oppo. Exh. C, p. 177.)
Immediately prior to the incident, TPP was observed to be pacing and unable to
sleep. Plaintiff was asleep at the time when TPP began to strike Plaintiff in
the face. (Mot. Exh. 1, p. 69.) Defendant’s staff responded to the incident and
separated TPP from Plaintiff. (Id.) Plaintiff sustained serious injury
and was ordered to the emergency room. (Id.) TPP was escorted back to
his room by staff where he attempted to hit his roommate and was required to be
physically restrained before medication was administered. (Oppo. Exh. C, p.
177.)
Standard of Care
Defendant first argues that summary judgment
must be granted because there is no triable issue of material fact as to
whether its staff upheld a standard of care.
“The elements of a cause of action for medical
malpractice are: (1) a duty to use such skill, prudence, and diligence as other
members of the profession commonly possess and exercise; (2) a breach of the
duty; (3) a proximate causal connection between the negligent conduct and the
injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions,
Inc. (2012) 205 Cal.App.4th 1557, 1571.)
The standard of care against which the acts of
a physician are to be measured is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony. (Hanson v. Grode (1999) 76 Cal.App.4th
601.) When a defendant moves for summary judgment and supports
his motion with expert declarations that his conduct fell within the community
standard of care, he is entitled to summary judgment unless the
plaintiff comes forward with conflicting expert evidence. (Munro v.
Regents of University of California (1989) 215 Cal.App.3d 977, 984–985
[citations omitted].)
To this end, Defendant presents the declaration
of registered nurse Denise K. Rounds (“Rounds”). Rounds has been a registered
nurse in the state of California since 1976 and has previously served as the
Psychiatric Nurse Expert for the California Board of Registered Nursing.
(Rounds Decl. ¶ 1.) Rounds states that the Lanterman-Petris-Short Act
(“LPS Act”) bars Defendant’s staff from rendering treatment to mental health
patients which is not expressly ordered by a physician. (Rounds Decl. ¶ 11(b).)
Rounds cites to Welf. and Inst. Code § 5325.1 which provides in relevant part:
“Treatment
should be provided in ways that are the least restrictive of the personal
liberty of the individual. . . (c) A right to be free from harm, including
unnecessary or excessive physical restraint, isolation, medication, abuse, or
neglect . . .”
Rounds states that the only exception to the
above provision is circumstances in which staff are confronted with a patient
engaging in violent or self-destructive behavior. (Round Decl. ¶ 11(b).)
Rounds states that because of this restriction, the applicable standard of care
for a psychiatric nursing staff is limited to whether the staff appropriately
implemented the attending physician’s orders. (Rounds Decl. ¶ 11(c).)
Rounds states that once TPP was released from
OTO on May 12, Defendant’s staff had no basis to place TPP under further
restraint or seclusion for lack of physician order. (Rounds Decl.
¶ 11(c).) Rounds further states that McNeel noted a positive reception to
medications in TPP and noted no further violent behavior. (Id.) Rounds
states that Defendant’s staff adhered to the standard of care by completing the
physician ordered 15-minute checks throughout TPP’s stay at the facility.
(Rounds Decl. ¶ 11(d).) Rounds further attests that TPP’s behavior
immediately prior to the incident, where TPP was pacing and appeared agitated,
was not cause for Defendant’s staff to restrain or seclude TPP. (Rounds Decl. ¶
11(e).) Rounds further states that Defendant’s staff met the standard of care
immediately after the incident by contacting the on-call physician. (Rounds
Decl. ¶ 11(f).)
Rounds states that there is a pervasive risk of
these sorts of incidents by virtue of Defendant’s care for a high volume of
5150-hold patients. (Rounds Decl. ¶ 11(h).) Rounds states that there was
no evidence of understaffing and that Defendant’s staff on duty were all within
sight range of the hallway. (Rounds Decl. ¶ 11(k).) Rounds states that
there is also no evidence to suggest that Defendant’s staff improperly
administered Zyprexa to Plaintiff, which would have resulted in her increased sleep
and decreased reaction time. (Rounds Decl. ¶ 11(m).) Rounds lastly states that
there is no evidence in her review that Defendant’s staff was unfit to carry
out their jobs and that the staff acted only on physicians’ orders. (Rounds
Decl. ¶ 11(n).)
Plaintiff argues that she has placed at issue
the standard of care by virtue of presenting conflicting expert evidence.
Plaintiff argues that Defendant fell below the standard of care in failing to
evaluate and implement appropriate precautionary measures which would have
prevented this incident.
Defendant presents the declaration of Dr. David
Rudnick, who is Board Certified in Psychiatry. (Rudnick Decl. ¶ 2.) Rudnick states that based upon his review of
the records, Defendant’s behavior fell below the standard of care. Rudnick
states that Defendant was aware that TPP has a history of psychosis and was
expressing homicidal ideation before arriving at the facility. (Rudnick Decl.
¶ 9.) Rudnick states that despite “assault precautions” being designated
for TPP, Defendant placed him on 15-minute checks, which constitutes the lowest
level of surveillance. (Rudnick Decl. ¶ 10.) Rudnick states that Nicholas
Duran (“Duran”), the nurse in charge of conducting the surveillance checks,
stated the requirements for patients on “assault precautions” to be minimal. (Id.)
Duran testified he was only required to give “assault precaution” patients
medication and offer that they sit in the day room if they appeared unable to
sleep. (Id.)
Rudnick further states that Defendant’s staff were
aware for three hours prior to the attack that TPP was pacing and appeared
agitated. (Id.) Rudnick states that despite this behavior, TPP was
allowed to enter Plaintiff’s room unobserved by any of Defendant’s staff. (Id.)
Rudnick also states that the standard of care was violated when Duran abandoned
his hall monitor post to deliver documents to the charge nurse while the other
staff were away on their meal break. (Id.) Rudnick states the violation
continued when Defendant’s staff immediately placed TPP back into a room with
another patient, despite his just having inflicted violence on Plaintiff. (Id.)
Rudnick concludes that Defendant failed to provide elementary safety measures
to protect patients from these sorts of incidents. Rudnick states that not
ordering additional interventions to be implemented for patients with “assault
precautions” is grossly insufficient. (Rudnick Decl. ¶12.)
Defendant also submits the declaration of
Registered Psychiatric Nurse, Gary Mittelberg (“Mittelberg”). Mittelberg also
states that Defendant violated the standard of care by placing TPP on the
lowest possible surveillance despite the knowledge of his violent tendencies.
(Mittelberg Decl. ¶ 8.) Mittelberg states Defendant’s “assault precautions”
were inadequate to keep patients safe. (Mittelberg Decl. ¶ 9.) Mittelberg
also states that Duran’s leaving his post without any available substitute
indicates Defendant was understaffed to handle its patient population.
(Mittelberg Decl. ¶ 11.) Mittelberg concludes that Defendant failed to
protect its patients from TPP by continuously housing him with other patients
and failing to supervise him more closely. (Mittelberg Decl. ¶ 12.)
The Court finds Plaintiff has provided
sufficient expert testimony in contravention of Defendant’s own expert. “The
trial court's gatekeeping role does not involve choosing between competing
expert opinions… The trial court's preliminary determination whether the
expert opinion is founded on sound logic is not a decision on its
persuasiveness. The court must not weigh an opinion's probative
value or substitute its own opinion for the expert's opinion.” (Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 186.) A
trial court may not “weigh competing expert opinions, evaluate their
credibility, and pick a winner...” (Menges v. Department of Transportation
(2020) 59 Cal.App.5th 13, 37.)
Defendant argues that Plaintiff’s declarations
do not serve to dispute Defendant’s adherence to the standard of care.
Defendant states neither the Rudnick nor the Mittelberg declarations speak to
the prohibition of increased levels of observation created by the LPS Act. The
Court finds this argument unpersuasive. The language cited by Defendant in the
LPS act states that treatment “should” be provided in ways that are least
restrictive of the personal liberty of the individual. Defendant does not
endeavor to explain what these methods are or how this statutory directive is
usually realized in the field of psychiatric nursing. The very nature of
providing care for someone on a 5150-hold is restrictive of personal liberty.
Welf. and Inst. Code § 5325.1 (c) states that it is the intent of the
legislature that persons with mental illness have the right to be free from
“unnecessary or excessive physical restraint”. This implies that some level of
restraint is occasionally required in providing care to the mentally ill.
Defendant cannot use this code section to defeat Plaintiff’s argument that the
amount of supervision was insufficient, when the code section implicitly
acknowledges some level of restraint is necessary. It cannot be that any action
not directly ordered by an attending psychiatrist is a restriction on physical
liberty.
Further, Plaintiff’s experts state Defendant’s
protocol to implement the “assault precautions,” which were explicitly ordered
by McNeel, were below the standard of care. Both Rudnick and Mittelberg attest
that Defendant’s staff failed to properly implement the physicians orders. It
is the contention of Plaintiff’s experts that Defendant’s procedures for
handling “assault precaution” patients were woefully inadequate, especially in
light of TPP’s prior violent outbursts. Further, both experts state that Duran
was stationed as a hallway monitor and abandoned his post without replacement.
This suggests either negligence on Duran’s part or that Defendant did not have
enough staff on hand to properly implement the physician’s orders.
Both parties have presented conflicting expert
testimony as to the standard of care in this case. As such, the Court finds
Plaintiff has met her burden to show a triable issue of fact. Accordingly, the
motion for summary judgment is DENIED; however, the Court will address the
motion for summary adjudication.
Dependent Adult Claim
“The
degree of neglect that will support a claim for elder abuse is the failure to
provide medical care, not the undertaking of medical services.” (Worsham v.
O’Connor Hospital (2014) 226 Cal.App.4th 331, 336.) The act does not apply
to simple or gross negligence by health care providers. (Id.) Rather, to
obtain the enhanced remedies provided for under the Act, Plaintiff must show “by
clear and convincing evidence that defendant is guilty of something more than
negligence; he or she must show reckless, oppressive, fraudulent, or malicious
conduct.” (Delaney v. Baker, 20 Cal. 4th 23, 31.) “Recklessness, unlike
negligence, involves more than 'inadvertence, incompetence, unskillfulness, or
a failure to take precautions' but rather rises to the level of a ‘conscious
choice of a course of action … with knowledge of the serious danger to others
involved in it.’” (Worsham supra, 226 Cal.App.4th at 337.)
Defendant first
argues that Plaintiff’s claim fails as a matter of law because Welf. And Inst.
Code § 15610.57 applies only to actions which derive the dependent adult of
their basic needs. The Court finds this argument unpersuasive. Welf. And Inst.
Code § 15610.57 (b)(3) defines “neglect” as including failure to protect from
health and safety hazards. Here, Plaintiff is alleging Defendant failed to implement
safety protocols which would have prevented her assault by TPP.
Defendant
further argues that the supervision of TPP is irrelevant to whether Plaintiff
was neglected within the meaning of the statute. The Court again is unpersuaded.
Defendant’s duty to adequately safeguard its patient population from violent
patients is relevant to its care of all patients, not just the patients being
supervised. The fact that Defendant did nothing directly to Plaintiff does not
disqualify her Dependent Adult Abuse claim.
Defendant
lastly argues that no triable issue of fact exists as to whether Defendant
acted with recklessness, fraud, malice, or oppression. Defendant states that
the failure of its staff to notice TPP entering Plaintiff’s room is at most the
result of simple negligence.
In Carter
the California Court of Appeals discussed situations in which care
facilities had (1) failed to provide a man suffering from Parkinson’s disease
sufficient food and water and necessary medication and left him unattended for
long periods of time, (2) left a woman with a broken ankle lying unattended for
long periods of time resulting pressure ulcers, and (3) an elderly man was
abused beaten, and unlawfully restrained. (Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406.) While these examples
are not exhaustive, they are illustrative of the types of transgression which
are usually qualified as dependent adult abuse. The thread running through each
of these examples is a pattern of prolonged failure to provide medical treatment,
which is precisely the type of behavior contemplated by § 15675.
Here,
the Court finds there is no “clear and convincing” evidence of dependent adult
neglect. Plaintiff has presented two declarations that state the behavior of
Defendant’s staff is indicative of Defendant’s insufficient protocol for
handling violent patients. However, Plaintiff has not presented sufficient
evidence to show that the conduct is anything beyond a case of simple
negligence. Both of Plaintiff’s
declarations testify to a number of ways in Defendant’s protocol could be found
inadequate, including:
·
The fact that Duran and other staff were only
required to offer medication to agitated patients on “assault protocol”.
·
The fact that Duran left his hall monitor post
with no substitute.
·
The fact that staff routinely placed TPP in
close proximity to other patients despite knowledge that he was violent,
including directly after he attacked Plaintiff.
Plaintiff’s
claims that Defendant’s protocol was ineffective all reveal that some level or
precaution was taken, or that some treatment was administered. Plaintiff does
not allege that Defendant had no safeguards in place. It is clear from
Plaintiff’s submissions that hall monitors were on guard the evening of the
incident, even if they inappropriately left their post to deliver paperwork.
Plaintiff’s submissions also show that checks were being completed by nurses on
15-minute intervals, showing that some level of precaution was being taken. In
so far as the removal of TPP to a room with other patients after the attack,
the Court finds this allegation more indicative of individualized poor decision
making by the nursing staff than any established protocol of Defendant. In
short, the conduct alleged by Plaintiff stands at odds with the conduct
typically categorized as dependent adult abuse. Plaintiff does not allege
protocols were not in place t to safeguard patients, she alleges the protocols
that were in place were either inadequate in this specific instance or were
ignored by Defendants’ staff. These allegations speak more to negligence than
to dependent adult abuse. Based on the evidence presented, the Court finds the
Plaintiff cannot show by clear and convincing evidence that Defendant’s conduct
would rise to a level of Dependent Adult abuse.
The
Court acknowledges that less egregious behavior has been found in certain cases
to become egregious when it is symptomatic of a scheme to deprive patients of
care. In Fenimore¿v. Regents of University of California¿(2016) 245
Cal.App.4th 1339, the California Appellate Court determined that allegations
that a hospital engaged in a pattern and practice of understaffing and
undertraining its staff to cut costs, which foreseeably resulted in the abuse
and neglect of its residents, were sufficient to state a cause of action under
the Elder/Dependent Abuse Act. The Fenimore court found that:
“Worsham’s determination that
understaffing constitutes no more than negligence may be true,¿absent¿further
allegations showing recklessness. But the Fenimores have alleged more than a
simple understaffing here. The FAC identified the staffing regulation the
Hospital allegedly violated and suggested a knowing pattern of violating it
constituted recklessness. A jury may see knowingly flouting staffing
regulations as part of a pattern and practice to cut costs, thereby endangering
the facility’s elderly and dependent patients, as qualitatively different than
simple negligence”
(Fenimore
supra, 245 Cal.App.4th. at 1350.)
The Fenimore
court concluded “Recklessness may be inferred when the neglect recurs in a
significant pattern.” (Id.) However, the opinion in Fenimore does
not describe what sort of pattern or practice would suffice to infer
recklessness. Although it is
procedurally distinguishable from this case, in that it concerned pleading
requirements and not the existence of a triable material fact, the Court finds
the logic in Fenimore instructive. Fenimore found allegations of
a corporate directive, i.e., understaffing, were sufficient to support a
dependent adult abuse claim. Here, the is insufficient evidence to support a
claim of understaffing.
Unlike
in Fenimore, the evidence here does not show that Plaintiff’s injury
resulted from systematic understaffing. The failure to notice TPP enter
Plaintiff’s room appears at best to be the result of a staff member abandoning
his post at an inopportune moment. Plaintiff submits insufficient evidence that
the number of staff present the night of the incident was inadequat, much less
that the number of staff usually assigned to monitor patients was routinely
insufficient. Plaintiff presents no evidence of what adequate staffing looks
like at an acute psychiatric facility or any other evidence to suggest that
Defendant’s staffing was insufficient. In short, Plaintiff’s statement that
Defendant was understaffed is at best speculative and cannot support a dependent
adult abuse claim.
Based on
the evidence presented, the Court finds the Plaintiff cannot show by clear and
convincing evidence that Defendant’s conduct would rise to a level of Dependent
Adult Abuse.
To
the extent that Plaintiff argues the “clear and convincing evidence” standard
is misapplied, the Court finds this argument at odds with the reasoning in Delaney.
The Delaney court explained:
if the neglect is “reckless[],” or done with
“oppression, fraud or malice,” then the action falls within the scope of
section 15657 and as such cannot be considered simply “based on . . .
professional negligence” within the meaning of section 15657.2. The use of such
language in section 15657, and the explicit exclusion of “professional
negligence” in section 15657.2, make clear the Elder Abuse Act’s goal was to
provide heightened remedies for, as stated in the legislative history, “acts of
egregious abuse” against elder and dependent adults while allowing acts of
negligence in the rendition of medical services to elder and dependent adults
to be governed by laws specifically applicable to such negligence.
(Delaney
supra, 20 Cal. 4th at 35 quoting Sen. 3d reading analysis, Sen. Bill No. 679.)
The
Delaney court continued “That only these egregious acts were
intended to be sanctioned under section 15657 is further underscored by the
fact that the statute requires liability to be proved by a heightened “clear
and convincing evidence standard.” (Id.)
The
idea that a cause of action under § 15657 is somehow sustainable without a
claim for heightened remedies does not stand to reason. The legislative purpose
of § 15657 is clear that the intended end result of a claim brought under the
statute is to achieve heightened remedies which would not be obtainable under
medical negligence claims. It cannot be that Plaintiff’ cause of action can
survive even though its ultimate goal, enhanced remedies under § 15657 have
been thwarted. To the extent that Plaintiff can maintain a cause of action
against Defendant for its omissions, the law is clear that cause of action is
founded in medical negligence and not elder abuse.
In short,
the evidence indicates that while Defendants’ conduct may constitute simple
negligence, it does not arise to a level contemplated by Fenimore. Based
on the evidence presented, the Court finds the Plaintiff cannot show by clear
and convincing evidence that Defendant’s conduct would rise to a level of Dependent
Adult abuse. (Carter supra, 198 Cal. App. 4th at 407, 409.) Further,
case law is clear that in the absence of “clear and convincing” evidence
Plaintiff’s cause of action cannot survive, regardless of the extent of
remedies sought Accordingly, the motion for summary adjudication of Plaintiff’s
cause of action for Dependent Adult Abuse is GRANTED.
Willful Misconduct
Defendant argues that Willful Misconduct is not
a separate cause of action. Indeed, willful misconduct is not a separate tort,
but simply an aggravated form of negligence, differing in quality rather
than degree from ordinary lack of care. (Berkley v. Dowds (2007)
152 Cal.App.4th 518, 526.) Regardless, the Court notes this argument does not
speak to the summary judgment standard. If Defendant wished to have this cause
of action removed as duplicative, the more appropriate avenue would have been a
demurrer or motion to strike. Nonetheless, given the Court is granting the
summary adjudication as to the second cause of action, the Cour will evaluate this
cause of action similarly given the argument that it is duplicative.
“Three essential elements must be present to
raise a negligent act to the level of wilful [sic] misconduct: (1) actual or
constructive knowledge of the peril to be apprehended, (2) actual or
constructive knowledge that injury is a probable, as opposed to a possible,
result of the danger, and (3) conscious failure to act to avoid the peril.” (Bains
v. Western Pacific R. Co. (1976) 56 Cal.App.3d 902, 906 [internal
quotations marks omitted].)
Plaintiff in the Complaint argues that BHC acted
intentionally or with reckless disregard for Plaintiff’s safety, and that BHC
knew or should have known of the high probability of injury or death from
failing to adhere to their duties. The
Court finds that this allegation is simply not supported by the evidence. As discussed above, while there may be an
argument for simple negligence there simply is insufficient evidence to support
a claim for willful action and/or recklessness disregard for a risk with a high
probability of injury or death for a breach of a duty. Further allegations in the Complaint of unfit
employees or despicable conduct are not supported by the evidence.
As to this cause of action, the Court finds
there is not a triable issue of fact as to whether Defendant knew of the peril
presented by TPP and consciously declined to prevent it. As such, the summary
adjudication of this cause of action is GRANTED.
Punitive Damages
BHC argues that Plaintiff did not comply with
C.C.P. 425.13 which mandates Court approval before punitive damages may be
included in a complaint. The Plaintiff
has never sought this leave from the Court, and furthermore the evidence does
not show a substantial probability Plaintiff will prevail on the claim pursuant
to Civil Code 3294. C.C.P. §437c(f). As such, the motion for summary adjudication
for punitive damages is GRANTED.
RULING:
In the event a party requests a signed order or
the court in its discretion elects to sign a formal order, the following form
will be either electronically signed or signed in hard copy and entered into
the court’s records.
ORDER
BHC Alhambra Hospital’s Motion for Summary
Judgment came on regularly for hearing on December 18, 2023, with
appearances/submissions as noted in the minute order for said hearing. The Court having heard argument took the
matter under submission and now rules as follows:
DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT IS DENIED.
DEFENDANT’S
MOTIONS FOR SUMMARY ADJUDICATION IS GRANTED AS TO THE ELDER NEGLECT CAUSE OF
ACTION, WILLFUL MISCONDUCT AND PUNITIVE DAMAGES AND IS DENIED AS TO
PROFESSIONAL NEGLIGENCE.
CLERK TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: January
8, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
RULING ON
SUBMITTED MATTER
JANUARY 8, 2024
MOTION
FOR SUMMARY JUDGMENT
WAKELIN
MCNEEL, M.D.
Los Angeles Superior Court
Case # 21STCV18294
MP: Wakelin McNeel, M.D. (Defendant)
RP: Olga
Zharovskaya (Plaintiff)
NOTICE: For convenience of expedited access by
counsel, the Court is posting this matter on the Tentative Ruling website;
however, it is a Ruling on the Submitted Matter.
ALLEGATIONS:
On May
14, 2023, Olga Zharovskaya (“Plaintiff”) filed suit against BHC Alhambra
Hospital (“BHC”) and Wakelin McNeel M.D. (“McNeel”) (collectively “Defendants”).
Plaintiff alleges McNeel was negligent in his care and in the supervision of a
third-party patient (“TPP”) who attacked Plaintiff while she was a patient at BHC’s
hospital. The Complaint contains causes of action for (1) Professional
Negligence, (2) Dependent Adult Abuse, and (3) Willful Misconduct.
McNeel now moves for summary judgment on grounds that no triable issue of
fact exists as to whether his actions in caring for TPP fell below the standard
of care. Plaintiff opposes and McNeel replies.
At the hearing, McNeel presented the argument that he has no duty toward
Plaintiff by function of Civil Code § 43.92. McNeel also presented argument
that Plaintiff’s expert declaration lacked the proper basis to refute McNeel’s
expert declaration as to the standard of care. Plaintiff in turn argued that
Civil Code § 43.92 does not apply as McNeel was not only a physiatrist with
BHC, but also a medical director. The
Court took the matter under submission to further assess the arguments made at
the hearing. Having heard argument and reviewed the matter, the Court now rules
as follows:
EVIDENTIARY OBJECTIONS:
McNeel’s evidentiary objections to the declaration of Dr. David
Rudnick are OVERRULED as to Nos. 1, 2, 3, 6, and 7.
McNeel’s objection No. 4 is
OVERRULED except as to the statement that TPP was “admitted without the
restrictions that would be prudent in such circumstances”, to which the
objection is SUSTAINED.
McNeel’s objection No. 5. is
OVERRULED except as to the statement that TPP forcibly attempted to kiss a
different patient, to which the objection is SUSTAINED. The Court sees no
evidence in TPP’s medical records, or any other exhibit, which documents this
incident.
ANALYSIS:
III.
LEGAL
STANDARD
The
function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party cannot show evidentiary support
for a pleading or claim and to enable an order of summary dismissal without the
need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th
826, 843.) C.C.P.¿§ 437c(c) “requires the trial judge to grant summary judgment
if all the evidence submitted, and ‘all inferences reasonably deducible from
the evidence’ and uncontradicted by other inferences or evidence, show that
there is no triable issue as to¿any material fact and that the moving party is
entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion
for summary judgment is to delimit the scope of the issues; the function of the
affidavits or declarations is to disclose whether there is any triable issue of
fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of
Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v.
Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿
¿
As to
each claim as framed by the complaint, the defendant moving for summary
judgment must satisfy the initial burden of proof by presenting facts to negate
an essential element, or to establish a defense. (C.C.P.¿§437c(p)(2);¿Scalf v.
D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.” (Dore v.
Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿
¿
Once the
defendant has met that burden, the burden shifts to the plaintiff to show that
a triable issue of one or more material facts exists as to that cause of action
or a defense thereto. To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (Sangster
v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿
IV.
MERITS
Background
TPP was admitted to Defendant’s facility on May
9, 2023 on a 72 hour hold secondary to being a danger to others. (TPP Medical
Records p.8.) TPP was placed on hold after he was evaluated for hearing voices,
threatening to kill his brother, and threatening to burn down his house. (Id.)
TPP was evaluated by Dr. Wakelin McNeel (“McNeel”) on May 10, 2023. (Id.)
McNeel estimated TPP’s stay at Defendant’s facility to be between three and
seven days. (Id.) McNeel’s diagnoses upon admission were psychotic
disorder and unspecified versus chronic schizophrenia versus schizoaffective disorder.
(Id.) TPP was subject to a patient risk assessment upon admittance. (Id.
at p. 5-6.) TPP reportedly scored a one out of twelve for assault risk. (Id.
at p. 38.)
On May 10, 2023, TPP was observed by a
housekeeper to have pulled the blanket off his roommate and punched the
roommate in the face. (TPP Medical Records at. p. 5, 56.) TPP was then
determined to be a high risk of injury to others and transferred to a secluded
unit known as “adult unit one” and prescribed Haldol, Ativan, and Benadryl. (Id.)
McNeel ordered an emergency treatment plan which directed that TPP be
encouraged seek out staff if he was feeling agitated. (Id. at p. 64.)
TPP was ordered to be observed every 15 minutes by McNeel. (Id. at p.73.)
TPP remained on 15-minute observation the entirety of his stay at Defendant’s
facility. (Id. p. 273-297.)
At around 3:00 a.m. on May 20, 2023, TPP left
his room and entered Plaintiff’s room uninhibited. (TPP Medical Records p. 177.)
Immediately prior to the incident, TPP was observed to be pacing and unable to
sleep. Plaintiff was asleep at the time when TPP began to strike Plaintiff in
the face. (Id. at p. 56.) Defendant’s staff responded to the incident
and separated TPP from Plaintiff. (Id. at p. 177) TPP was escorted back
to his room by staff where he attempted to hit his roommate and was required to
be physically restrained before medication was administered. (Id.)
Civil
Code § 43.92
McNeel
argues that summary judgment should be granted because he has no duty of care
toward Plaintiff as a matter of law. McNeel argues the California legislature
has specifically provided in Civil Code § 43.92 that no action for damages may
be maintained against a psychiatrist who has failed to protect others from
violence inflicted by a patient.
Civil
Code § 49.32 provides:
There shall be no
monetary liability on the part of, and no cause of action shall arise against,
any person who is a psychotherapist as defined in section 1010 of the
evidence code in failing to protect from a patient’s threatened
violent behavior or failing to predict and protect from a patient’s violent
behavior except if the patient has communicated to the psychotherapist a
serious threat of physical violence against a reasonably identifiable victim or
victims.
As
noted by the California Court of Appeal in Regents of University of
California v. Superior Court, Civil Code § 49.32 was enacted by the
California Legislature in reaction to the ruling in Tarasoff v. Regents of
University of California. (See Regents of University of California v.
Superior Court (2018) 29 Cal.App.5th 890, 904.) The statute was not
designed to overrule Tarasoff, so much as it was intended to balance the
public policy of doctor/patient confidentiality with the need to safeguard the
public. (Id. at 904.) The statute attempts to prioritize the need for
confidentiality while allowing for disclosure under circumstances where
preserving the safety of an endangered individual is certain. (Id.) In presenting this argument to the Court,
McNeel relies primarily on Ewing v. Goldstein and Calderon v. Glick. The
Court finds that a brief analysis of these rulings would be beneficial to the
determination of McNeel’s argument.
In
Ewing v. Goldstein, the parents of a victim killed by a therapist’s
patient sued the therapist for wrongful death based on the therapist’s alleged
failure to warn of a threat. (See Ewing v. Goldstein Ewing v. Goldstein (2004) 120 Cal.App.4th 807, 811.) The
victim in Ewing was dating the patient, and the victim’s father had
called and warned the therapist of threats of violence against the plaintiff. (Id.)
Much of the decision in Ewing centered around the nature of the
communication from the victim’s father and whether it qualified as a “patient
communication” within the meaning of Civil Code § 49.32. (Id.) The Court
of Appeal determined that “patient communication” included the father’s
communication from the therapist, reasoning that a requirement the
communication came from the patient is not crucial to the statutory purpose of
Civil Code § 49.32. (Id. at 818.) The court further reasoned that
because the communication from the father would have qualified as privileged,
it was statutorily consistent to find the communication qualified for purposes
of Civil Code § 49.32. (Id.)
Ultimately,
the Ewing Court found that summary judgment was inappropriate because there
existed questions of fact as to whether the therapist believed his patient
intended to kill or seriously injure the victim. (Id. at 822.) The court
reasoned that a determination of whether a threat under Civil Code § 49.32 was
“serious” required determining whether the therapist in question believed in
the veracity of the threat. (Id. at 820.) The Ewing Court found
that because the therapist treated the victim for years and had intimate
knowledge of his mental illness, it was plausible the therapist could have
perceived the patient as not being a threat to the victim despite this warning.
(Id.) Such possibilities constituted a triable issue of fact as to the
therapists knowledge of a “serious” threat to the victim. (Id.)
The
Court of Appeals reaffirmed the holding of Ewing in Calderon v. Glick,
although there it was determined that no duty to warn existed. (See Calderon v. Glick (2005) 131 Cal.App.4th 224.) In Calderon,
plaintiffs alleged therapists had a duty to warn when a patient shot three
members of his former girlfriend’s family. (Id. at 228.) The gunman expressed
the belief to his therapists that his former girlfriend had purposefully
transmitted human T-cell lymphotropic (“HLTV”) to him. (Id.) The
plaintiffs in Calderon argued that summary judgment was inappropriate
because a question o fact existed as to whether the treating therapists
actually believed or predicted their patient posed a serious threat of physical
harm to the former girlfriend or her family. (Id. at 232.) The Court
determined the evidence showed there was never a communication of an intent to
injure anyone to the therapists. The records showed that the therapists asked
the patient at each meeting if he intended to inflict violence on anyone and
the response was always in the negative. (Id.) Further, the record
showed no communication from the former girlfriend or her family to the
therapists similar to that in Ewing. (Id.)
Most recently, the California Court of Appeal
addressed Civil Code § 49.32 in Regents of the University of California v.
Superior Court. In Regents, the victim was attacked by a fellow
student on the University of California Los Angeles campus. (Regents of
University of California v. Superior Court (2018) 29 Cal.App.5th 890,
895.) The attacker had been experiencing auditory hallucinations and believed
many on the UCLA campus were committing transgressions against him. (Id.)
The attacker was in communication with many school officials and was ultimately
diagnosed by a school psychologist as being possibly schizophrenic. (Id.)
The portion of the opinion addressing the psychologist is brief compared to Ewing
and Calderon. The Court of Appeal held that because there was no evidence the
any threat was ever communicated to the psychologist, she was entitled to
judgment under Civil Code § 49.32.
Here, the Court acknowledges there are a number
of factual differences from the case law addressing Civil Code § 49.32. The
victims in Ewing, Calderon, and Regents are more tenuously connected to
the therapists in those cases than McNeel is to Plaintiff. The case law deals
with estranged lovers, family members, or total strangers. None of the cases
directly contemplate a situation in which the victim and the attacker are both
members of an acute psychiatric care facility.
The Court understands that the proximity of Plaintiff
to TPP and McNeel would tend in reason to indicate that injury to Plaintiff was
more foreseeable. Regardless, it is clear from Ewing that the question
of foreseeability only arises after an exception to Civil Code § 49.32 has been
found. Civil Code § 49.32 is specifically concerned with the duty a therapists
owes to third parties to protect from harm. The single exception to Civil Code
§ 49.32 is essentially a two-part inquiry: (1) was there a communication to the
therapist of an intent to harm a reasonably identifiable person and (2) did
that communication cause a serious belief on the therapists behalf that harm
was likely to occur. Here, there is no evidence of a communication that would
trigger the exception to Civil Code § 49.32.
Plaintiff argues that McNeel’s note that TPP
tended to attack people in their sleep is sufficient to find an exception. The
Court disagrees. Civil Code § 49.32 explicitly requires the threat be directed
to a reasonably identifiable victim. A general observation that TPP has
attacked someone in their sleep before is not a communication of intent to
injure in the future and does not concern a reasonably identifiable person. In
short, there is no communication which would trigger the exception to Civil
Code § 49.32.
Plaintiff
also raises argument regarding McNeel’s capacity as medical director for BHC.
Plaintiff argues that because McNeel serves as a medical director, his remains
liable for his BHC’s failure to implement further assault precautions. Plaintiff
submits that McNeel has served as medical director at BHC since 2011. (See
Plaintiff’s Exh. I, McNeel Depo p. 32.) Plaintiff argues that McNeel remains
liable because he plays a part in the procedural decision and policy making at
BHC. In McNeel’s words his duties as the medical director are to “represent the
department from the physician’s end”, “bring up any issues the medical staff
have regarding policies or procedures”, and coordinate between the doctors and
the hospital. (Id.) It is also clear from the deposition of McNeel that
he is being compensated by BHC directly for his services as director. (Id.
at 34.) As discussed during oral argument, Dr McNeel was not a treating
physician for Plaintiff. As such, he had
no professional duty to her. His duty
was to the TPP, who was his patient.
McNeel only treated Plaintiff on an emergent basis after the TPP’s
attack, and the allegations in the complaint do not address professional
negligence related to that treatment. Furthermore, Plaintiff presented insufficient
evidence that there is a triable issue of material fact that McNeel’s position
as a contract medical director for which he received 1099 income rather than
employee W2 income, imposed a duty of care as related to any staffing issues.
As
to Elder Neglect and Willful Misconduct for which these causes of action are
alleged against all defendants, the Court incorporates by reference the analysis
and law from the granting of the Motion for Summary Adjudication in favor of
BHC Alhambra.
In
short, the Court finds that McNeel did not have a duty to protect Plaintiff from
TPP. Civil Code § 49.32 is clear that liability cannot be imposed on McNeel for
TPP’s actions absent communication of a serious threat to harm Plaintiff. As
the evidence shows no such communication occurred, summary judgment must be
granted in favor of McNeel.
Accordingly,
McNeel’s motion for summary judgment is GRANTED.
RULING:
In a party requests a signed order or the court
in its discretion elects to sign a formal order, the following form will be
either electronically signed or signed in hard copy and entered into the
court’s records.
ORDER
Wakelin McNeel M.D.’s Motion for Summary
Judgment came on regularly for hearing on January 5, 2024 with
appearances/submissions as noted in the minute order for said hearing, and the Court
took the matter under submission and issues this revised ruling as follows:
DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT IS GRANTED.
CLERK TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: January
8, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles