Judge: John J. Kralik, Case: 22STCV08456, Date: 2023-07-21 Tentative Ruling
Case Number: 22STCV08456 Hearing Date: January 19, 2024 Dept: NCB
North
Central District
|
LINDA
heigle and matthew zabelle, Individually and as Successors in
Interest on behalf of Decedent RUTH S. ZABELLE, Plaintiffs, v. ICC
CONvalescent corp. dba IMPERIAL
CARE CENTER;
et al., Defendants. |
Case No.:
22STCV08456 Hearing Date: January 19, 2024 [TENTATIVE] order RE: motion for judgment on the pleadings;
motion to strike |
BACKGROUND
A.
Allegations
Plaintiffs Linda Heigle and Matthew
Zabelle (“Plaintiffs”), individually and as successors in interest on behalf of
Decedent Ruth S. Zabelle (“Decedent”), allege that Decedent was a resident at
Defendant ICC Convalescent Corp. dba Imperial Care Center (“Facility”)
beginning August 21, 2020 until her discharge on March 8, 2021. Decedent is alleged to have been over the age
of 65. Defendant David Friedman (individually
and as agent for Facility, “Friedman”) is alleged to be the Facility’s director
and owner of 39 nursing facilities.
Plaintiffs allege that Decedent was
admitted to Facility on August 21, 2020 and was discharged on March 8, 2021 and
transferred to Providence St. Joseph Medical Center. When she presented at Providence, Plaintiffs
allege that Decedent was profoundly dehydrated and had sepsis, chronic kidney
disease, acute hypoxic respiratory failure, and acute chronic encephalopathy. She
also suffered from dementia.
Defendant Keino Rutherford, M.D. (“Dr. Rutherford”) was Decedent’s
physician and Plaintiffs claim that he made no effort to speak to the family or
obtain consent for treatments and did not recognize Decedent’s lesions from
scabies. Plaintiffs allege that Dr. Rutherford
knew or should have known that scabies, if left untreated, can cause sepsis.
The Third Amended Complaint (“TAC”),
filed October 2, 2023, alleges causes of action for: (1) wrongful death against
all Defendants; (2) elder/dependent abuse and neglect (Welf. & Inst. Code,
§§ 15600 et seq.) against all Defendants; (3) violation of patient’s
rights against all Defendants except Friedman; and (4) negligence against all
Defendants.
On April 19, 2023, Plaintiff
dismissed without prejudice the 3rd cause of action as to Dr.
Rutherford only.
B.
Motions on Calendar
On December 14, 2023, Defendant Dr.
Rutherford filed a motion for judgment on the pleadings and a motion to strike
portions of the TAC.
On January 5, 2024, Plaintiffs filed opposition
briefs.
On January 10, 2024, Dr. Rutherford filed
reply briefs.
DISCUSSION RE MJOP
Dr. Rutherford
moves for judgment on the pleadings with respect to the 2nd cause of
action for elder abuse and 3rd cause of action for violation of
patient’s rights on the grounds that they fail to state sufficient facts.
A.
3rd cause of
action for Violation of Patient’s Rights
As noted above,
the 3rd cause of action was dismissed as to Dr. Rutherford on April
19, 2023. In the opposition brief,
Plaintiffs state that due to a clerical error, the cause of action was
realleged against Dr. Rutherford, but they agree that this is no longer a
viable cause of action against Dr. Rutherford.
(Opp. at p.4 at fn.1.)
To the extent the
TAC alleged the 3rd cause of action against Dr. Rutherford as
currently alleged, the motion for judgment on the pleadings as to the 3rd
cause of action is granted without leave to amend.
B.
2nd cause of
action for elder/dependent abuse and neglect
A plaintiff must prove more than
simple or even gross negligence in the provider’s care or custody of the elder or dependent
adult. (Carter v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 405.)
The plaintiff must prove by clear and convincing evidence that defendant
was guilty of recklessness, oppression, fraud or malice in the commission of the
neglect, which applies essentially the equivalent standard to support punitive
damages. (Id.; Welf. & Inst. Code, § 15657.) The enhanced remedies are available only for
acts of egregious abuse against elder or dependent adult. (Carter, supra, 198 Cal.App.4th
at 405.) “‘Recklessness’ refers to a subjective state of culpability greater
than simple negligence, which has been described as ‘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. (Delaney v. Baker (1999) 20 Cal.4th 23,
31-32.) Unlike negligence, recklessness
involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. (Id.
at 31.)
There are several factors that must
be pled with particularity, including: (1) defendants had
responsibility for meeting the basic needs of the elder or dependent adult,
such as nutrition, hydration, hygiene or medical care; (2) defendants
knew of conditions that made the elder or dependent adult unable to provide for
his or her own basic needs; (3) defendants 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); and (4) the neglect caused the elder or
dependent adult to suffer physical harm, pain or mental suffering. (Carter, supra, 198 Cal.App.4th at 406-407.)
In the 2nd cause of
action, Plaintiffs allege that Decedent was an “elder” pursuant to the code and
was over the age of 65. (TAC, ¶148.) Plaintiffs allege that Defendants each had the
care and custody of Decedent and stood in a position of trust with Decedent,
but that Defendants intentionally or recklessly caused/permitted Decedent to be
injured and created circumstances likely to produce bodily harm or death. (Id., ¶¶150-152.) They allege that Defendants’ conduct
constituted abuse, neglect, abandonment, and physical abuse pursuant to the
code. (Id., ¶¶153-156.) Plaintiffs allege that as a result, Decedent
suffered pain. (Id., ¶157.) They allege that Defendants had a scheme of underfunding
and understaffing the Facility despite knowing the risk to dependent adults
like Decedent. (Id., ¶158.) Plaintiffs allege that Defendants
operated the Facility in a manner to generate maximum revenue and income at the
expense of providing Decedent medical care and basic life necessities, such that
Decedent had injuries to her hand, a rash on her torso, lesions on her hand,
and dehydration—all of which led to her death.
(Id., ¶159.) They allege
that as a result of Defendants’ actions, Decedent suffered fear, anxiety, humiliation,
pain, emotional stress, and death. (Id.,
¶160.) The 2nd cause of
action incorporates paragraphs 1 to 145.
(Id., ¶146.)
Dr. Rutherford moves
for judgment on the pleadings as to the 2nd cause of action, arguing
that Plaintiffs fail to allege specific allegations that Dr. Rutherford was
reckless, oppressive, fraudulent, or malicious in the commission of the acts
alleged, there are no specific allegations about what Dr. Rutherford did or how
he did or did not perform his duties to Decedent, and there is no causal link
between the injuries pled against Dr. Rutherford. He also argues that the TAC lacks facts
showing that there was a robust custodial or caretaking relationship or that
Decedent was in Dr. Rutherford’s custody.
He argues that without establishing a custodial relationship (as opposed
to a medical relationship), Plaintiffs cannot allege elder abuse against him.
Dr.
Rutherford relies on the California Supreme Court case in Winn v. Pioneer Medical
Group, Inc. (2016) 63 Cal.4th 148. In
the Winn case, the Supreme Court concluded that “the Act does not apply unless
the defendant health care provider had a substantial caretaking or custodial
relationship, involving ongoing responsibility for one or more basic needs,
with the elder patient. It is the nature of the elder or dependent adult's
relationship with the defendant—not the defendant's professional standing—that makes
the defendant potentially liable for neglect. Because defendants did not have a
caretaking or custodial relationship with the decedent, we find that plaintiffs
cannot adequately allege neglect under the Elder Abuse Act.” (Winn, supra, 63 Cal.4th at 152.) The code contemplates the “existence of a robust caretaking or
custodial relationship—that is, a
relationship where a certain party has assumed a significant measure of
responsibility for attending to one or more of an elder's basic needs that an
able-bodied and fully competent adult would ordinarily be capable of managing
without assistance.” (Id. at
158.) With respect to establishing
neglect by the failure to provide medical care for physical and mental health
needs, the Winn court stated:
As with the other examples of neglect, the failure to provide medical care
assumes that the defendant is in a position to deprive an elder
or a dependent adult of medical care. Section 15610.57, subdivision
(b)(2)'s use of the word “provide” also suggests a care provider's assumption
of a substantial caretaking or custodial role, as it speaks to a determination
made by one with control over an elder whether to initiate medical
care at all. Read in tandem, section 15610.57, subdivisions (a)(1) and (b)(2)
support a straightforward conclusion: whether a
determination that medical care should be provided is made by a health care
provider or not, it is the defendant's relationship with an elder or a
dependent adult—not the defendant's professional standing or expertise—that
makes the defendant potentially liable for neglect.
(Winn, supra,
63 Cal.4th at 158.)
There
is a distinction between medical care versus custodial care. The Supreme Court in Covenant Care, Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th
771 stated:
As used in the Act, neglect refers not to the substandard performance of
medical services but, rather, 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.” (Delaney, supra, 20 Cal.4th at p. 34, 82 Cal.Rptr.2d 610,
971 P.2d 986.) Thus, 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.) The Court of Appeal in Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396 stated:
With respect to the conduct actually
attributed to the Hospital—failure to treat Grant's pressure ulcers, administer
prescribed antibiotics or stock the crash cart; false documentation; purposefully
inadequate testing for medications—plaintiffs contend their allegations the
Hospital acted “recklessly” or “fraudulently” suffice to cause “the acts to
rise to the level of neglect” under the Elder Abuse Act. We disagree.
(Carter, supra, 198 Cal.App.4th 410; Smith v. Ben Bennett, Inc.
(2005) 133 Cal.App.4th 1507, 1518 [stating that the Supreme Court held that the
term “professional negligence” within the meaning of the Welfare &
Institutions Code, § 15657.2 is mutually exclusive of the abuse and neglect specified
in section 15657]; Benun v. Superior Court (2004) 123
Cal.App.4th 113, 125 [“‘Statutorily, as well as in
common parlance, the function of a health care provider is distinct from that
of an elder custodian, and the fact that some health care institutions, such as
nursing homes, perform custodial functions and provide professional
medical care (citation) does not mean that the two functions are the same.’ (Citation.)”]
[Internal quotation marks and citations omitted.].)
Previously, the Court granted with leave to amend the
motion for judgment on the pleadings as to the 2nd cause of action,
finding that Plaintiff did not allege sufficient facts showing that Dr.
Rutherford had a caretaking or custodial relationship with Decedent, as opposed
to solely being her attending doctor at the facility (of professional
negligence). The Court stated that
Plaintiffs had not alleged sufficient facts showing that Dr. Rutherford undertook caretaking or custodial
duties with ongoing responsibilities of Decedent’s basic needs that an able-bodied
and fully competent adult would be capable of managing without assistance.
In
the TAC, Plaintiffs now allege facts that Dr. Rutherford’s conduct amounted to
neglect due to his alleged failure to provide medical care and that Dr.
Rutherford undertook a caretaking/custodial relationship and duty with respect
to Decedent. In the TAC, under the
heading “DEFENDANT RUTHERFORD’S ADDITIONAL CONDUCT,” Plaintiffs allege that Dr.
Rutherford that he transferred Decedent to ICC.
(TAC, ¶125.) They allege that on
August 21, 2020 when she was a resident and patient of Dr. Rutherford at
Sherman Oaks Hospital, her diagnosis remained constant with acute on chronic
hypercarbic respiratory failure and that Dr. Rutherford knew of her condition at
the time of transfer and agreed to be her primary physician at ICC. (Id., ¶¶125-126.) They allege that Dr. Rutherford undertook
caretaking/custodial relationship and duty with respect to Decedent, whereas
her condition was such that she could not take action to protect herself and he
was solely responsible for her medical orders and disclosures of information to
her loved ones. (Id., ¶126.) Plaintiffs allege that at ICC, Dr. Rutherford
assumed a significant amount of responsibility for attending to Decedent’s
basic needs, would not allow her to seek a second opinion, would not let her
leave the facility, could not take care to ensure that the medical treatment being
provided addressed her skin care, and failed to adequately inform the family
about her skin condition. (Id.,
¶127.) They allege that he did not see
Decedent sporadically but saw her on a regular basis. (Id., ¶¶128-129.) Plaintiffs allege that despite his visits,
Decedent was swiftly deteriorating. (Id.,
¶130.) Plaintiffs allege that Dr.
Rutherford had a duty to ensure that his patient received appropriate medical
care and follow upon on the condition, communicate with her family about
Decedent’s treatment or have her transferred to a hospital, recognize lesions from
scabies, and recognize symptoms of dehydration, skin rashes, injuries to her
hands, sepsis, and urosepsis. (Id.,
¶¶131, 134.) Plaintiffs allege that Dr.
Rutherford abandoned his client and failed to take action and; he failed to
protect her from safety hazards; failed to provide medical care by choosing not
to address or alert her care team about her scabies; and he failed to contact
her family to inform them about her condition or have her transferred to a
hospital. (Id., ¶¶132-133.) They allege that Dr. Rutherford’s conduct was
in conscious disregard to her safety and his conduct displayed a continued pattern
of withholding basic care and services.
(Id., ¶135.)
At the pleading stage, the Court will
take the allegations of the TAC as true.
Plaintiffs have included additional facts alleging that Dr. Rutherford
assumed caretaking and custodial care of Decedent, routinely visited her, knew
of her medical conditions but withheld and failed to provide medical care. Since Plaintiffs have alleged facts that Dr.
Rutherford and Decedent had a caretaking/custodial relationship, Plaintiffs may
allege a claim for elder abuse against Dr. Rutherford. While the facts alleged present an unlikely
scenario, fundamentally departing from normal professional relationships in the
context where they allegedly occurred, it is not for the Court to judge their
truth or falsity on that basis. On this motion, these additional facts must be
accepted as true. Whether there will be sufficient facts to present the issue
of the existence of a custodial/caretaking relationship, or whether Dr.
Rutherford’s conduct amounts to abuse, neglect, abandonment, and physical
abuse will be determined beyond the pleading stage, and potentially before the
matter is submitted to the jury.
The
motion for judgment on the pleadings as to the 2nd cause of action is
denied.
DISCUSSION RE
MOTION TO STRIKE
Dr. Rutherford moves to strike paragraphs
50, 51, 122, 133, 161, and 168, and the prayer for relief at paragraphs 5, 6 (page
51, lines 6-7), and 6 (page 51, lines 10-11).
He also moves to strike specific allegations for punitive damages in
paragraphs 46 (page 14, lines 11-12), 48 (page 14, line 21), 80 (page 23, line
6), 81 (page 23, line 8), 108 (page 33, line 18), 111 (page 34, line 7), 116
(page 35, line 7), 119 (page 35, line 20), 120 (page 35, line 21), 121 (page
36, line 1), 135, (page 39, line 11), 142 (page 41, line 20), 151 (page 42,
line 25), and 158 (page 44, line 24).
In light of the ruling on the motion
for judgment on the pleadings as to the 3rd cause of action, the
motion to strike paragraph 168 and the prayer for relief at paragraph 6 (page
51, lines 6-7) and paragraph 6 (page 51, lines 10-11) is granted without leave
to amend.
Dr. Rutherford moves to strike the
allegations for punitive damages. A complaint including a request for punitive
damages must include allegations showing that the plaintiff is entitled to an
award of punitive damages. (Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A
claim for punitive damages cannot be pleaded generally and allegations that a
defendant acted "with oppression, fraud and malice" toward plaintiff
are insufficient legal conclusions to show that the plaintiff is entitled to an
award of punitive damages. (Brousseau
v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Specific factual
allegations are required to support a claim for punitive damages. (Id.)
Civil Code § 3294
authorizes a plaintiff to obtain an award of punitive damages when there is
clear and convincing evidence that the defendant engaged in malice, oppression,
or fraud. Section 3294(c) defines the terms in the following manner:
(1)
"Malice" means conduct which is
intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.
(2)
"Oppression" means despicable
conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person's rights.
(3)
"Fraud" means an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant
with the intention on the part of the defendant of thereby depriving a person
of property or legal rights or otherwise causing injury.
As Plaintiffs have alleged sufficient
facts with respect to the 2nd cause of action for elder abuse, the Court
will allow the allegations for punitive damages to remain against Dr.
Rutherford for the reasons stated above.
The motion to strike the allegations for punitive damages is denied.
Dr. Rutherford also moves to strike allegations
for attorney’s fees pursuant to Welfare & Institutions Code, § 15657. As the Court will allow Plaintiffs to plead
the 2nd cause of action for elder abuse, the request for attorney’s
fees pursuant to the Welfare & Institutions Code shall remain. The motion to strike the allegations for
attorney’s fees is denied.
CONCLUSION AND
ORDER
Defendant Keino Rutherford, M.D.’s motion
for judgment on the pleadings is denied as to the 2nd cause of
action and granted without leave to amend as to the 3rd cause of
action.
Defendant Keino Rutherford, M.D.’s motion
to strike is denied as to the allegations for punitive damages and attorney’s
fees. The motion to strike is granted
without leave to amend as to the allegations in connection with the 3rd
cause of action, as the 3rd cause of action is not directed against
Dr. Rutherford.
Dr. Rutherford is ordered to answer.
Defendant shall provide notice of this
order.
DATED:
January 19, 2024 ___________________________
John Kralik
Judge
of the Superior Court