Judge: John J. Kralik, Case: 24NNCV06452, Date: 2025-04-04 Tentative Ruling
Case Number: 24NNCV06452 Hearing Date: April 4, 2025 Dept: NCB
North
Central District
|
berjue
shamirian, by and through her successor-in-interest, hamlet shamirian, et al., Plaintiffs, v. ksm healthcare,
inc. dba dreier’s nursing care center, Defendant. |
Case
No.: 24NNCV06452 Hearing
Date: April 4, 2025 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Berjue Shamirian (“Decedent”),
by and through her successor-in-interest, Hamlet Shamirian, and Hamlet
Shamirian (“Mr. Shamirian”) filed this elder abuse action against Defendant KSM
Healthcare, Inc. dba Dreier’s Nursing Care Center (“Defendant”). Plaintiffs allege that Decedent died on
December 16, 2023, and that she is succeeded by her surviving son, Mr.
Shamirian. Plaintiffs allege that
Decedent was a resident of Defendant’s facility and that Defendant was a “care
custodian” of Decedent pursuant to the Welfare & Institutions Code. Plaintiffs allege that Decedent was neglected
by Defendant when Defendant failed to protect her from health and safety
hazards, failed to provide her physical health needs, and failed to exercise
the degree of care that a reasonable person in a like position would
exercise. (FAC, ¶21.)
Specifically, Plaintiffs allege that
Decedent was admitted to the facility on November 29, 2023 for skilled nursing
and rehabilitation services after hospitalization at St. Joseph Medical Center
for pneumonia and sepsis. Plaintiffs
allege that Defendant failed to create or develop a care plan to address her
respiratory issues or risk of infection associated with her Foley catheter and
history of sepsis. On December 13, 2023,
Decedent had breathing difficulty such that her catheter was removed and a
physician ordered Decedent’s urinary output be monitored. However, Plaintiffs allege that Defendant
failed to conduct a pain and abdominal assessment prior to removing the
catheter and failed to monitor intake/output of fluids. On December 14, 2023, Decedent had not
urinated for 8 hours but her provider was not notified for the critical
changes. Plaintiffs allege that Decedent
was then found unresponsive and thereafter her provider was notified and she
was transported to Providence St. Joseph Medical Center. Decedent passed away on December 16, 2023 at
the hospital, listing the cause of death as septic shock and urosepsis.
The first
amended complaint (“FAC”), filed February 4, 2025, alleges causes of action
for: (1) elder abuse/neglect; (2) negligence/willful misconduct; (3) violation
of residents’ rights; and (4) wrongful death.
B. Motions
on Calendar
On March 5, 2025, Defendant filed a
demurrer and motion to strike portions of the FAC.
On March 31, 2025, Plaintiff filed a
combined opposition brief.
On March 28, 2025, Defendant filed reply
papers.
DISCUSSION RE DEMURRER
Defendant
demurs to the 1st, 3rd, and 4th causes of action
for elder abuse/neglect, violation of residents’ rights, and wrongful death, respectively.
A.
1st cause of action for elder abuse/neglect
Pursuant
to Welfare & Institutions Code, § 15610.27, an “elder” is any person residing in California that is 65 year of age
or older. Abuse of an elder means: “(a)
Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or
other treatment with resulting physical harm or pain or mental suffering” or
“(b) The deprivation by a care custodian of goods or services that are
necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07.) “Neglect” includes the negligent failure of
any person having the care or custody of an elder to exercise the degree of
care that a reasonable person in like position would exercise, including the
failure to provide medical care or protect from health and safety hazards. (Id.,
§ 15610.57(a)-(b).) The statutory
definition of “neglect” does not speak to the undertaking of medical services, but the failure to provide medical
care. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198
Cal.App.4th 396, 404.)
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.)
Examples
of conduct sufficiently egregious to warrant the award of enhanced remedies
under the Elder Abuse Act include the following:
1) An 88-year-old woman with a broken
ankle was frequently left lying in her own urine and feces for extended periods
of time and she developed pressure ulcers on her ankles, feet and buttocks that
exposed bone, despite persistent complaints to nursing staff, administration,
and to a nursing home ombudsman. (Delaney v. Baker (1999) 20 Cal.4th 23, 41.)
2) A physician concealed the existence of
a serious bedsore on a nursing home patient under his care, opposed her hospitalization
where circumstances indicated it was medically necessary, and then abandoned
the patient when she was dying. (Mack
v. Soung (2000) 80 Cal.App.4th 966, 973.)
3) A skilled nursing facility failed to
provide an elderly man suffering from Parkinson’s disease with sufficient food
and water and necessary medication, left him unattended and unassisted for long
periods of time, left him in his own excrement so that ulcers exposing muscle
and bone became infected; and misrepresented and failed to inform his children
of his true condition. (Covenant
Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 778.)
4) A skilled nursing facility failed to
provide adequate pressure relief to a 76-year-old woman with severe pain of her
left leg and identified as at high risk for developing pressure ulcers, dropped
the patient, left her in filthy and unsanitary conditions, and
failed to provide her the proper diet, monitor food intake and assist her with
eating. (Country Villa
Claremont Healthcare Center, Inc. v. Superior Court (2004) 120
Cal.App.4th 426, 430, 434-435.)
5) The staff of a nursing home failed to
assist a 90-year-old, blind, and demented woman with eating, used physical and
chemical restraints to punish the elder and prevent her from obtaining help,
and physically and emotionally abused the elder by bruising her, withholding
food and water, screaming at her, and threatening her. (Benun v. Superior Court (2004) 123
Cal.App.4th 113, 116-117.)
6) A 78-year-old man admitted to a
skilled nursing facility was abused, beaten, unlawfully restrained, and denied
medical treatment. (Smith v.
Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1512.)
7) A facility caring for a dependent
adult with a known condition causing progressive dementia, requiring nutrition
and hydration through a gastrostomy tube, and subjecting her to skin
deterioration, ignored a medical care plan requiring the facility to check the
dependent adult’s skin on a daily basis and failed to notify a physician when
pressure ulcers and other skin lesions developed. (Sababin v. Superior Court (2006)
144 Cal.App.4th 81, 83-87, 90.)
(Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396,
406-407.)
In
the 1st cause of action, Plaintiffs allege that Decedent was 88
years old and an “elder.” (FAC,
¶64.) They allege that Defendant, a
business providing long-term care as a 24-hour health facility, engaged in acts
and omissions that constituted neglect.
(FAC, ¶¶65-67.) Paragraphs 64-70
provide the general law regarding elders and elder abuse/neglect, paragraphs
71-84 are regarding ratification, and paragraph 85 seeks punitive damages. The 1st cause of action
incorporates the prior allegations, which include the facts of the case (as
summarized above).
Reading
the complaint as a whole, the Court finds that the allegations fail to rise to
the level of particularity required to show elder abuse and/or neglect. Plaintiffs essentially allege the standard
and the accompanying “buzz” words, but alleging these words without factual
support amounts to conclusory pleadings.
At most, Plaintiffs allege that Defendant failed to conduct a pain and
abdominal assessment prior to removing her catheter or failed to document her
fluid intake/output (FAC, ¶¶24-25), as well as generalized allegations of
understaffing. However, Plaintiffs have
not alleged Defendant’s failure to provide medical services to Decedent (as
opposed to Defendant’s undertaking of medical services since Defendant removed
the catheter, had her admitted to the hospital, etc. and alleged negligence
thereto).
In
addition, the allegations for ratification are generalized and conclusory. (FAC, ¶¶71-85.) The FAC lacks allegations that notice was
provided regarding Decedent’s allegedly substandard care at the facility, or
that an agent/officer of the facility ratified Defendant’s conduct. No persons are identified in the FAC
(caretakers, physicians, or management personnel).
The
demurrer to the 1st cause of action is sustained with leave to
amend.
B.
3rd cause
of action for violation of residents’ rights
Plaintiffs’ 3rd cause of action
is based on Health & Safety Code §1430(b), which expressly authorizes a
current or former resident or patient of a skilled nursing facility to bring a
civil action against the licensee of a facility who violates any rights of the
resident or patient as set forth in the Patient’s Bill of Rights in 22 C.C.R. §
72527, or any other right provided for by federal or state law or
regulation. This is a statutory claim
and the pleadings must state with reasonable particularity the facts supporting
the statutory elements of the violation.
(Khoury v. Maly's of California,
Inc. (1993) 14 Cal. App. 4th 612, 619.)
The 3rd cause of action incorporates
the prior allegations and then essentially provides a recitation of the
law. (FAC, ¶¶95-96, 98.) Plaintiffs allege that Defendant was a
licensee of a skilled nursing facility (id., ¶97), Decedent was a member
of a group protected under the statute (id., ¶100), and that Defendant
violated Decedent’s Patient’s Bill of Rights under the code (id., ¶101). These general allegations that refer to
unknown, prior portions of the pleadings do not state with reasonable
particularity the facts supporting the statutory elements of the claimed
violation of section 1430(b). As a
result, the pleadings are insufficient.
The demurrer to the 3rd cause
of action is sustained with leave to amend.
C.
4th cause
of action for wrongful death
The elements of a
wrongful death cause of action are: (1) a wrongful act or neglect on the part
of one or more persons that (2) causes (3) the death of another person. (Nogart
v. Upjohn Co. (1999) 21 Cal.4th 383, 390.)
In
the 4th cause of action, Plaintiffs allege:
Plaintiffs hereby incorporate the allegations asserted
in the paragraphs above of this Complaint as though set forth at length below.
Specifically, Ms. SHAMIRIAN was admitted to Providence St. Joseph Medical
Center on December 14, 2023, with diagnoses of septic shock, multi-organ
failure due to urinary and pulmonary infections, acute respiratory failure with
pneumonia and bilateral pleural effusions, acute kidney injury with acute
tubular necrosis, and atrial fibrillation with rapid ventricular response.
Despite treatment, she tragically passed away on December 16, 2023, at
Providence St. Joseph Medical Center. Ms. SHAMIRIAN’s death certificate lists
the cause of death as septic shock and urosepsis as her cause of death. Due to Defendants’ failure to create,
develop, and initiate the appropriate care plans, the medical care necessary to
meet her physical health needs was withheld. This medical care would include
daily respiratory assessments and daily assessments for signs/symptoms of
infection. The standard of care required the Defendants to monitor Ms.
SHAMIRIAN for signs/symptoms of infection every shift. Had Defendants provided
this care, Ms. SHAMIRIAN’s fatal infection would have been identified timely,
allowing the physician to prescribe life-saving medical care and treatment.
FACILITY also failed to monitor, measure, and record fluid intake and output
for Ms. SHAMIRIAN who had an indwelling catheter, as required by her plan of
care, the facility’s policies and procedures, and the standard of care. Had
FACILITY performed the required intake and output monitoring, the nursing staff
could have quickly identified issues like reduced or absent urine flow,
prompting timely interventions. Patients with indwelling catheters are at high
risk for urinary tract infections (UTIs), which can escalate to serious
conditions like urosepsis. Monitoring urine for changes in color, clarity, or
odor can help detect infections early. Defendants’ failure to monitor Ms.
SHAMIRIAN’s urine output resulted in a critical delay in treatment for her
infection, causing her to develop urosepsis. In sum, regular and accurate
monitoring of urine intake and output for patients with indwelling catheters is
essential for maintaining their health, preventing complications, and ensuring
early intervention when issues arise. By neglecting this aspect of care, Defendant caused a severe
and fatal outcome, as demonstrated by Ms. SHAMRIRIAN’s development of
urosepsis.
(FAC, ¶102.)
Defendant
argues that while Plaintiffs allege that Decedent passed away, the FAC fails to
allege facts regarding how Defendant’s conduct ultimately caused Decedent’s
death.
While
Plaintiffs have not alleged sufficient facts for elder abuse at this time, the
allegations are sufficient to allege a wrongful death cause of action based on
negligence. Paragraph 102 sufficiently
alleges facts that Defendant’s failure to implement an appropriate care plan,
perform daily assessments, have prescriptions and treatment timely
administered, etc. caused Decedent to undergo septic shock and organ failure. As such, the Court will allow the cause of
action to stand.
The
demurrer to the 4th cause of action is overruled.
DISCUSSION RE MOTION TO STRIKE
Defendant moves to strike the
allegations for attorney’s fees and costs and punitive damages with respect to
the 1st cause of action, and attorney’s fees and costs with respect
to the 3rd cause of action.
In light of the ruling to sustain
the demurrer to the 1st and 3rd causes of action, the
motion to strike is taken off-calendar as moot.
CONCLUSION AND
ORDER
Defendant KSM Healthcare, Inc. dba
Dreier’s Nursing Care Center’s demurrer is sustained with 20 days leave to
amend as to the 1st and 3rd causes of action. The demurrer is overruled as to the 4th
cause of action.
Defendant shall provide notice of this
order.
DATED: April 4,
2025 ___________________________
John
Kralik
Judge
of the Superior Court