Judge: Lee W. Tsao, Case: 23NWCV02616, Date: 2024-01-17 Tentative Ruling
Case Number: 23NWCV02616 Hearing Date: January 17, 2024 Dept: C
Andrade, et al. v.
La Mirada, et al.
CASE NO.: 23NWCV02616
HEARING: 1/17/24 @ 10:30 AM
#9
Defendant Morado’s Demurrer to the First
Cause of Action is SUSTAINED with leave to amend within 30 days of this order.
Moving Party to give NOTICE.
Defendant Andrew Morado, MD (Morado) demurs to
the First Cause of Action for Elder Abuse in Plaintiff Juan Andrade’s
(Plaintiff) Complaint on the grounds that it fails to plead facts to support a
cause of action.
Plaintiff
Juan Andrade, by and through his successor in interest, Maria Andrade, filed a
Complaint alleging Elder Abuse and Negligence against Defendants Morado and La
Mirada Healthcare (La Mirada) (collectively Defendants) and Violation of
Patient’s Bill of Rights against Defendant La Mirada. Plaintiffs Maria Andrade
and Benny Andrade alleged a Wrongful Death cause of action against Defendants.
Erwin
Andrade and Luz Howard were named as nominal defendants because they are heirs
of Plaintiff, however, they chose to not participate in the lawsuit.
Legal
Standard
The
party against whom a complaint has been filed may object to the pleading, by
demurrer, on several grounds, including the ground that the pleading does not
state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A
party may demur to an entire complaint, or to any causes of action stated
therein. (CCP § 430.50(a).) “‘[A] demurrer based on an affirmative defense will
be sustained only where the face of the complaint discloses that the action is
necessarily barred by the defense.’” (McKenney v. Purepac Pharmaceutical Co.
(2008) 167 Cal.App.4th 72, 78-79.)
Meet
and Confer
The
Court finds that the parties adequately met and conferred.
Discussion
Plaintiff alleges that he was in the care and
custody of Morado during his stays at La Mirada, a skilled nursing facility. Specifically, Plaintiff alleges in the
Complaint that:
8. Defendant ANDREW MORADO, M.D. and DOES 51-75
(hereinafter “DR. MORADO”) and each of them, were physicians licensed by the
State of California. DR. MORADO lists his business address 5451 La Palma
Avenue, Ste. 19, La Palma, CA 90623. DR. MORADO entered into a physician-patient
relationship with PLAINTIFF to care for PLAINTIFF’s medical needs while he was
hospitalized and while PLAINTIFF was a resident at FACILITY. Additionally,
MORADO was PLAINTIFF’s attending physician throughout all times relevant to
this case. DR. MORADO wrote multiple orders for treatment and medications that
hospital and nursing home staff were required to follow. DR. MORADO was part of
a care team responsible for PLAINTIFF while he was a patient at FACILITY. This
care team, including DR. MORADO, was responsible for ongoing assessments of
PLAINTIFF while he was a patient at FACILITY and was responsible, along with
FACILITY staff, for deciding when PLAINTIFF should be transferred to the
hospital. Additionally, DR. MORADO made ongoing treatment decisions for
PLAINTIFF while he was a patient at the hospital and at FACILITY. This care
team, including DR. MORADO, took responsibility for and directed care for
PLAINTIFF’s basic needs, which an able-bodied and fully competent adult would
ordinarily be capable of managing without assistance.
28. PLAINTIFF was originally hospitalized on
June 17, 2022. At the time, he was diagnosed with, among other things, c-diff
colitis, a urinary tract infection from his Foley catheter, and malnutrition
because his appetite had decreased. C-diff colitis is an intestinal issue that
results in severe diarrhea and potential damage to the colon if left untreated.
The resulting diarrhea can cause severe dehydration and malnutrition if
immediate medical care is not provided. After receiving treatment at the hospital,
PLAINTIFF was transferred to FACILITY and admitted on June 30, 2022. PLAINTIFF
was a resident of FACILITY from June 30, 2022 through July 11, 2022 when he was
hospitalized again. PLAINTIFF returned to FACILITY on July 15, 2022 where he
remained until August 2, 2022.
29. On admission on June 30, PLAINTIFF was
under in the care and custody of DR. MORADO, who was PLAINTIFF’s attending
physician throughout his time at FACILITY. PLAINTIFF was also in the care and
custody of FACILITY staff. At the time, FACILITY and DR. MORADO knew
PLAINTIFF’s history of c-diff, malnutrition, and the fact he still required a
Foley catheter and had a recent history of urinary tract infection. FACILITY
and DR. MORADO knew that decreased appetite, abdominal pain, and diarrhea,
among other things, were signs and symptoms that PLAINTIFF’s urinary tract
infection and c-diff infection were recurring. Indeed, FACILITY implemented a
care plan that required staff to notify DR. MORADO of any of these symptoms,
which DR. MORADO was also aware of.
30. During PLAINTIFF’s June 30 to July 11
admission to FACILITY, PLAINTIFF was noted to have low blood pressure and was
easily fatigued. This was especially true during physical and occupational
therapy sessions. Due to these troubling findings, FACILITY staff contacted DR.
MORADO who ordered transfer to the hospital on July 11. This is an indication
that both FACILITY and DR. MORADO were aware of the importance of transferring
PLAINTIFF to the hospital emergently if his condition deteriorated. During his
July 11 to July 15 hospital admission, PLAINTIFF was diagnosed by DR. MORADO
with COVID-19, failure to thrive, c-diff, and a urinary tract infection among
other diagnoses. At the time of discharge from the hospital, DR. MORADO failed
to implement any meaningful treatment for PLAINTIFF’s c-diff. DR. MORADO knew
at the time that his failure to adequately treat PLAINTIFF’s c-diff posed a
substantial likelihood that PLAINTIFF’s c-diff would continue to worsen and
cause permanent damage to PLAINTIFF’s colon if not treated appropriately.
Defendant argues that Plaintiff fails to
adequately plead facts sufficient to constitute a claim for elder abuse with
particularity. Elder abuse requires:
(1) defendant had responsibility for meeting
the basic needs of the elder or dependent adult, such as nutrition, hydration,
hygiene or medical care;
(2) defendant knew of conditions that made the
elder or dependent adult unable to provide for his or her own basic needs;
(3) defendant denied or withheld goods or
services necessary to meet the elder or dependent adult's basic needs, either:
a. with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice); or
b. 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 v. Prime Healthcare Paradise Valley
LLC (2011) 198 Cal.App.4th 396, 406-407.)
As to the first element, Plaintiff argues that
elder abuse does not require pleading the defendant was a care custodian.
However, the Supreme Court ruled that the plaintiff must allege that they are
in the “care or custody” of the defendant and “care or custody” requires robust
caretaking or custodial relationship, “involving ongoing responsibility for one
or more basic needs, with the elder patient.” Thus, Plaintiff must plead that he
was in a caretaking or custodial relationship with Morado. Here, Plaintiff has
not adequately pleaded that he was in a caretaking or custodial relationship
with Morado. Elder Abuse causes of action must be plead with particularity. (Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396.)
Plaintiff alleges vague facts that Morado had an ongoing responsibility for
assessments and directing care of Plaintiff’s basic needs. (Compl. ¶ 8.) “As
used in [Welf. & Inst. Code § 15610.57], 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.’” (Covenant Care, Inc. v. Superior Court (2004)
32 Cal.4th 771, 783.) Plaintiff has failed to plead specifically what basic
needs Morado was responsible for and how the ongoing treatment and assessments
were such that they would constitute a basic need as opposed to normal medical
care. Plaintiff’s allegations in Paragraphs 28-30 of the Complaint relate to
Morado’s alleged failure to provide medical services and not any failure to
attend to the basic needs of Plaintiff. The allegations detail Morado’s alleged
substandard care of Plaintiff’s C-diff colitis. Thus, Plaintiff has failed to
adequately plead that he was in the care or custody of Morado. Therefore,
Defendant Morado’s Demurrer to the First Cause of Action for Elder Abuse is
sustained.
Leave to amend is granted because this is the
first demurrer to Plaintiff’s Complaint.
Accordingly, Defendant
Morado’s Demurrer to the First Cause of Action is SUSTAINED with leave to amend
within 30 days of this order.