Judge: Lee W. Tsao, Case: 23NWCV04172, Date: 2024-10-31 Tentative Ruling

Case Number: 23NWCV04172    Hearing Date: October 31, 2024    Dept: C

HERRERA v. KAISER FOUNDATION HOSPITAL

CASE NO.:  23NWCV04172

HEARING:  10/31/24

#10

     I.        Defendant KAISER FOUNDATION HOSPITALS Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

    II.        Defendant KAISER FOUNDATION HOSPITAL’s Motion to Strike Portions of Plaintiff’s Complaint is MOOT.

Moving Party to Give notice.

This elder abuse/negligence action was filed by Plaintiff LEE HERRERA (“Plaintiff”) on December 22, 2023.

Plaintiff alleges that this action is “based upon Defendants’ neglect and deliberate disregard for the health and safety of decedent LEE HERRERA, a 69-year-old aged and frail ‘dependent adult[]’”(Complaint ¶1.)

Plaintiff’s Complaint asserts the following causes of action:

(1) Elder Abuse; and

(2) Negligence

The Court notes that the Complaint goes back and forth between referring to the plaintiff as “Decedent” and Mr. Lee. Although Plaintiff is identified as “Decedent”, no date or cause of death are identified or discussed throughout the Complaint.

Defendant KAISER FOUNDATION HOSPTIALS demurs to the first cause of action for elder abuse.

First Cause of Action – Elder Abuse

A cause of action under the Elder Abuse Act must be alleged with particularity.    (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)   Acts that constitute mere professional negligence do not constitute elder abuse.  “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate 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. The latter three categories involve "intentional," "willful," or "conscious" wrongdoing of a "despicable" or "injurious" nature.”  (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)   “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.”  (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.)  “‘[T]he legislature intended the Elder Abuse Act to sanction only egregious acts of misconduct distinct from professional negligence….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784.) In summary, to plead a cause of action for elder abuse under the Act based on neglect, a plaintiff must allege facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult,” “(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”; and “(3) 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…or with conscious disregard for the high probability of such injury….” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405-407.) A plaintiff must also allege facts demonstrating that the neglect caused the elder or dependent adult to suffer physical harm, pain, or mental suffering such that the causal link between the neglect and injury is specifically alleged. (Id at 407.) Section 15610.63(a)(1) defines neglect in relevant part as follows: “The negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Subsection (b) provides specific examples of neglect, and states in relevant part: “Neglect includes… (3) [f]failure to protect from health and safety hazards.” To state an elder abuse claim, a plaintiff must allege facts showing that an officer, director, or managing agent of defendant was involved in the abuse, authorized the abuse, ratified the abuse or hired the person who did the abuse with advance knowledge of the persons unfitness and hired him with a conscious disregard of the rights and safety of others. (Welf. & Inst. Code §15657(c); Cal. Civ. Code §3294.) “[T]he 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.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) 

The demurrer to the first cause of action is SUSTAINED with 30 days leave to amend.

Plaintiff alleges the following relevant facts: “Upon admission, MR. LEE was noted to have an unstageable pressure ulcer to his coccyx. [¶] The records thereafter do not contain wound notes, care plans, progress notes, or other documents related to the progression and deterioration of pressure ulcers. [¶] Mr. Lee did not receive any treatment regarding the pressure ulcer while at Kaiser Hospital Downey, despite their knowledge of the pressure ulcer upon admission. [¶] On or about November 11, 2023, Mr. Lee was discharged from the facility, at which time, it was determined that he had a stage IV pressure ulcer to his sacrum/coccyx region that was large enough to have a fist placed inside.” (Complaint ¶¶23-26.) Nothing within these facts alleged show that Defendant’s treatment of Plaintiff’s bed sores, or lack thereof, amounted to an intentional, willful, or conscious refusal/failure to treat. Plaintiff also fails to adequately allege the existence of any recklessness/deliberate disregard of Plaintiff’s bed sores. These allegations, at most, amount to claim for professional negligence.

In the interests of justice, the Demurrer is SUSTAINED with 30 days leave to amend.

Motion to Strike

The motion to strike punitive damages and attorney’s fees is MOOT for the reasons stated above.