Judge: John J. Kralik, Case: 24BBCV00304, Date: 2024-06-07 Tentative Ruling
Case Number: 24BBCV00304 Hearing Date: June 7, 2024 Dept: NCB
North
Central District
|
rene de la nuez, Plaintiff, v. burbank healthcare, inc. dba burbank healthcare and
rehabilitation center, et al., Defendants. |
Case
No.: 24BBCV00304 Hearing Date: June 7, 2024 [TENTATIVE]
order RE: demurrer |
BACKGROUND
A.
Allegations
Plaintiff Rene De La Nuez (“Plaintiff”)
alleges that he is an elder. He alleges
that Defendants Burbank Healthcare, Inc. dba Burbank Healthcare and
Rehabilitation Center and Burbank Healthcare LLC dba Burbank Healthcare and
Rehabilitation Center (collectively, “Burbank Healthcare”) were in the business
of providing long term custodial care as a 24-hour skilled nursing facility at
Burbank Healthcare and Rehabilitation Center facility (“Facility”). Plaintiff alleges that Defendants Longwood
Management LLC and Longwood Management Corp. (collectively, “Longwood”) were
engaged in operating/managing the Facility.
Plaintiff refers to Burbank Healthcare and Longwood as “Facility
Management.” Plaintiff alleges that
Defendant Ayuna K Panossian, M.D. was a licensed physician who was providing
care and treatment to Plaintiff at the Facility, and that Defendants Ayuna K.
Panossian, M.D. (a professional corporation) and Facility Management are vicariously
liable for Dr. Panossian’s actions.
Plaintiff alleges that Defendant California Wound Healing Medical Group,
Inc. (“CWHMG”) provides care, wound management, and wound treatment to
residents at the Facility. Defendant
Joseph A. Addiego, D.P.M. is alleged to have provided podiatric and/or wound
care to Plaintiff at the Facility and Defendants Joseph A. Addiego, D.P.M. (a
professional corporation), CWHMG, and Facility Management are alleged to be
vicariously liable for Dr. Addiego’s actions.
Plaintiff alleges that he was admitted to
the Facility on September 28, 2022 under the primary care of Dr. Panossian for
skilled nursing care and physical, speech, and occupational therapy, following
a stay at Providence St. Joseph Medical Center (“Providence”). Plaintiff alleges his medical history at the
time included cerebrovascular incident (stroke) with resident left-sided
weakness and diabetes mellitus. On
September 29, 2022, physical and occupational therapy evaluations were
completed, and Plaintiff was noted to require assistance for activities of
daily living including maximal assistance for bed mobility and transfers. On December 7, 2022, Dr. Panossian noted that
Plaintiff should use a walker for mobility.
On April 7, 2023, Plaintiff’s records noted a left lateral foot wound
and a left lateral ankle wound, and wound care was provided by CWHMG and Dr.
Addiego. Plaintiff alleges wound care
was provided weekly but on May 12, 2023, records indicated that the left
lateral ankle wound involved bone and in June to August 2023, there were signs
of infection in the left foot wounds. On
September 1, 2023, Plaintiff was transferred to the emergency department at
Providence. Plaintiff was diagnosed with
gangrene and he underwent an above-the-knee amputation on the left leg on
September 8, 2023. On October 1, 2023,
Plaintiff was transferred from Providence to a different skilled nursing
facility.
The complaint, filed on February 6, 2024,
alleges causes of action for: (1) elder abuse/neglect (Welfare &
Institutions Code, § 15600 et al.) against Burbank Healthcare and
Longwood; (2) elder abuse/neglect (Welfare & Institutions Code, § 15600 et
al.) against Panossian Defendants, CWHMG, and Addiego Defendants; (3)
negligence against all Defendants; and (4) violation of Patient Bill of Rights
(Health & Safety Code, § 1430(b)) against Burbank Healthcare and Longwood.
B.
Demurrer on Calendar
On April 23, 2024, Defendants Joseph A.
Addiego, D.P.M (an individual, “Dr. Addiego”) and Joseph A. Addiego, D.P.M. (a
professional corporation, “Addiego Corporation”) (collectively, “Addiego
Defendants”) filed a demurrer to the 2nd cause of action in the complaint.
On May 24, 2024, Plaintiff filed an
opposition brief.
On May 31, 2024, Addiego Defendants filed
a reply brief.
DISCUSSION
Addiego Defendants demur to the 2nd
cause of action for elder abuse/neglect in the complaint on the ground that it
fails to state sufficient facts to constitute a cause of action.
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,
Plaintiff alleges that Dr. Addiego was an agent or employee of CWHMG, Addiego
Corporation, and Facility Management.
(Compl., ¶70.) He alleges that Dr. Addiego was one of the individuals
responsible for the management, monitoring, and treatment of Plaintiff’s wound
while he was a resident at the Facility.
(Id.) He alleges that
CWHMG and Dr. Addiego undertook Plaintiff’s custodial and medical care such
that they had primary and ongoing responsibility to provide services and/or
medical or custodial care to assist with Plaintiff’s wound while he was at the
Facility. (Id.) Plaintiff alleges that while he was a
resident, Defendants had the care and custody of Plaintiff and owed him a duty
in the discharge of their respective responsibilities. (Id., ¶73.) He alleges that Defendants breached their
duty and subjected Plaintiff to elder abuse and neglect. (Id., ¶74.) Plaintiff alleges that Defendants were aware
that Plaintiff was dependent upon them for his custodial care and activities of
daily living, including but not limited to eating, hydrating, toileting,
mobility, turning, repositioning, and personal hygiene. (Id., ¶75.) He alleges at the time of his admission, he
was free and clear of any wounds on the lateral side of his left foot, but that
he developed wounds that became severely infected and led to an above-the-knee
amputation following Defendants’ failure to provide medical and custodial
services. (Id., ¶76.)
Addiego Defendants concede that there are
sufficient allegations for the negligence cause of action, but argue that Plaintiff
has not alleged sufficient facts for elder abuse. They argue that Plaintiff has not alleged
specific facts of their failure to provide medical care, of a custodial
relationship, or of recklessness, malice, oppression, or fraud.
Addiego Defendants argue that Plaintiff
has not alleged sufficient facts regarding “neglect.” Neglect includes the failure to provide
medical care for physical and mental health needs. (Welf. & Inst. Code, § 15610.57(b)(2).) Addiego Defendants argue that Plaintiff has
alleged facts showing that he had developed left lateral foot and ankle wounds
on April 7, 2023 and that wound management and care began weekly thereafter
until September 1, 2023. (Compl.,
¶¶26-31.) They argue that while the
worsening of Plaintiff’s left foot may amount to a cause of action for
negligence, it does not rise to the level of elder abuse.
The allegations regarding Addiego
Defendants’ purported neglect of Plaintiff are conclusory and are not alleged
with the heightened specificity requires for elder abuse claims. Plaintiff has not alleged facts showing that
Addiego Defendants withheld custodial or medical care from Plaintiff; rather,
the allegations show that once Plaintiff exhibited signs of leg wounds, Addiego
Defendants began providing wound care and services on a weekly basis until he
was transferred to Providence in September 2023. As currently alleged, the
facts do not rise to a showing of elder abuse or neglect.
Similarly, the allegations fail to rise to
the level of showing recklessness, malice, oppression, or fraud on the part of
Addiego Defendants. While Plaintiff need not prove such facts at the pleading
stage, he must still allege specific facts for an elder abuse claim.
Next, Addiego
Defendants argue that Plaintiff fails to allege that a custodial or caretaking relationship
existed between Addiego Defendants and Plaintiff. They rely 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.].)
As currently alleged, the complaint
does not rise to the level of showing that Addiego
Defendants had a
caretaking or custodial relationship with Plaintiff. While Addiego
Defendants may
have been Plaintiff’s podiatrist/doctor and provided wound care to Plaintiff,
Plaintiff has not alleged specific facts against Addiego
Defendants showing
that they undertook caretaking or custodial duties with ongoing
responsibilities of Plaintiff’s basic needs that an able-bodied and fully
competent adult would be capable of managing without assistance. In other words, Plaintiff has not alleged
sufficient facts showing that Addiego
Defendants acted
in a manner pursuant to a caretaking and custodial relationship. At most, Plaintiff’s allegations rise to the
level of Addiego Defendants’ provision of medical and wound
care to Plaintiff. This would amount to
a cause of action for professional negligence.
(As noted above, the 3rd cause of action is for negligence.)
CONCLUSION AND
ORDER
Defendants Joseph A. Addiego, D.P.M (an
individual) and Joseph A. Addiego, D.P.M. (a professional corporation)’s demurrer
to the 2nd cause of action in the complaint is sustained with 20
days leave to amend.
Defendants shall give notice of
this order.
DATED: June 7,
2024 ___________________________
John
Kralik
Judge
of the Superior Court