Judge: Melvin D. Sandvig, Case: 20STCV09257, Date: 2023-02-01 Tentative Ruling
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Case Number: 20STCV09257 Hearing Date: February 1, 2023 Dept: F47
Dept. F47
Date: 2/1/23
TRIAL DATE: 5/1/23
Case #20STCV09257
SUMMARY JUDGMENT/SUMMARY ADJUDICATION
Motion filed on 4/20/22.
MOVING PARTY: Defendant Pacifica
Hospital of the Valley
RESPONDING PARTY: Plaintiffs
Angelica J. Humphrey; Denise Caouette, an individual and on behalf of James
Caouette, III
NOTICE: ok
SUMMARY OF FACTS AND PROCEDURAL HISTORY
This action arises out of care and treatment provided by
Defendant Pacifica Hospital of the Valley (Defendant) to decedent James
Caouette, III (Decedent), Plaintiff Denise Caouette’s son, and Plaintiff
Angelica J. Humphrey’s brother.
Plaintiffs allege that Defendant neglected Decedent and provided
negligent care and treatment to Decedent from 4/13/19 through 7/10/19,
ultimately resulting in or contributing to Decedent’s death on 12/7/19. Specifically, Plaintiffs contend that Defendant
failed to adequately manage Decedent’s skin breakdown, failed to adequately and
timely carry out orders for wound care and treatment, and failed to
appropriately care for Decedent’s pain during his hospital admission. The operative Third Amended Complaint contains
causes of action for: (1) Medical Malpractice (CCP 377.30 and CCP 377.60)
brought by Denise Caouette as successor in interest to James Caouette III ; (2)
Dependent Adult/Elder Abuse – Welfare & Institutions Code 15657, 15610.57
brought by Denise Caouette as successor in interest to James Caouette III; and
(3) Wrongful Death by Denise Caouette and Angelica Humphrey as individuals.
Defendant now moves for an order granting summary
judgment in favor of Defendant Pacifica Hospital of the Valley and against
Plaintiffs Angelica J. Humphrey; Denise Caouette, an individual and on behalf
of James Caouette, III. Alternatively,
Defendant Pacifica Hospital of the Valley requests summary adjudication of
Plaintiff’s causes of action for medical negligence, wrongful death, and
dependent adult abuse/neglect; Plaintiff’s claim for punitive damages; and/or
Plaintiff Angelica Humphrey’s lack of standing in this action. Plaintiffs have opposed the motion.
ANALYSIS
Defendant’s objections to evidence, numbers 1-12, are
overruled.
Plaintiffs’ objection to Defendant’s reply is
overruled. Contrary to Plaintiff’s
assertion, a reply to an opposition to a motion for summary judgment/summary
adjudication is due to be filed and served “not less than five days preceding
the noticed or continued date of hearing.”
CCP 437c(b)(4). The statute does
not indicate five court days, unlike CCP 1005(b). As such, the reply papers were timely filed
and served on 1/27/23, five calendar days before the 2/1/23 hearing date.
On this motion, Defendant bears the initial burden of
establishing that Plaintiffs causes of action have no merit by showing that one
or more elements of the cause of action cannot be established or by showing
that there is a complete defense to the cause of action. CCP 437c(p)(2). In ruling on a motion for summary judgment
and/or summary adjudication, the moving party’s evidence must be strictly
construed while the responding party’s evidence must be liberally construed with
any doubts or ambiguities resolved in favor of the responding party. See D’Amico (1974) 11 C3d 1,
21; Binder (1999) 75 CA4th 832, 839; Aguilar (2001) 25 C4th 826,
843; Johnson (2008) 43 C4th 56, 64; Schachter (2009) 47 C4th 610,
618; Ragland (2012) 209 CA4th 182, 199.
With regard to the medical malpractice and wrongful death
causes of action, Defendant argues that these claims have no merit because the
care and treatment provided to Decedent by Defendant met the applicable
standard of care and/or because Decedent’s death was not caused by
Defendant.
In a medical malpractice action (and/or a wrongful death
action based on medical malpractice), the plaintiff must establish: (1) the
duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligence conduct and the
resulting injury; and (4) actual loss or damage resulting from the
professional’s negligence. Hanson (1999) 76 CA4th 601, 606.
The standard of care in medical malpractice actions is
peculiarly within the knowledge of experts.
Hanson, supra citing Flowers (1994) 8 C4th 992,
1001; Willard (1981) 121 CA3d 406, 412.
As such, expert opinion is necessary to establish whether Defendant’s
conduct fell within or below the applicable standard of care. Id.
Similarly, it must be shown by expert testimony that the care and
treatment by Defendant caused or significantly contributed to Decedent’s
death. A plaintiff cannot recover if
there is only a mere possibility that the defendant’s alleged negligence may
have caused some type of harm. Jones
(1985) 163 CA3d 396, 402-403. In a
wrongful death action, a plaintiff must show the cause of death by a reasonable
medical probability, not certainty. Nelson
(2003) 113 CA4th 783, 792; Logacz (1999) 71 CA4th 1149, 1157; Major
(2017) 14 CA5th 1179, 1200.
Here, Defendant has provided the expert declarations of
Kwon Lee, M.D. and Andrew S. Wachtel, M.D. who both opine that Defendant’s care
and treatment of Decedent met the applicable standard of care and that nothing
Defendant did or did not do caused or contributed to Decedent’s death. (See Lee Decl. ¶¶8-14; Wachtel Decl.
¶¶9-13). On the other hand, Plaintiffs
have provided the expert declaration of Roger B. Schechter, M.D. FACEP,
UHM-ABEM who opines that Defendant’s care and treatment of Decedent did not
meet the applicable standard of care and that to a reasonable medical
probability Defendant’s care and treatment of Decedent caused or contributed to
his death. (Schechter Decl. ¶¶15-18). The foregoing conflicting expert opinions
create a triable issue of material fact as to the medical malpractice and
wrongful death causes of action.
The Court notes that in Defendant’s Response to Plaintiffs’
Separate Statement it seems that with
regard to certain facts that Defendant disputes, Defendant is attempting to
object to evidence submitted in support of the opposition, including portions
of Dr. Schechter’s declaration filed in support of the opposition. (See Defendant’s Response to Facts
4-12, 21). However, written objections
to evidence must be served and filed separately and follow the format set forth
in CRC 3.1354(b). While Defendant did
file separate written objections to evidence, these objections did not include
objections to Dr. Schechter’s declaration.
(See Defendant’s Objection to Plaintiffs’ Evidence filed on
1/27/23). To the extent that Defendant’s
Response to Plaintiff’s Separate Statement is intended to include objections to
Dr. Schechter’s declaration, such objections are not separately ruled upon as
they have not been properly presented.
Even if the statements in Defendant’s responsive separate statement had
been properly formatted as objections to Dr. Schechter’s declaration, considering
the liberality with which Plaintiff’s (as the responding party on this motion)
evidence is to be construed, such objections would be overruled.
With regard to the dependent adult abuse/neglect cause of
action, Defendant argues that the claim has not merit because Defendant did not
neglect Decedent. With regard to the
claim for punitive damages, Defendant argues that the prayer for such damages
fails because Defendant did not act with oppression, fraud or malice with
regard to Decedent.
Neglect includes “the negligent failure of any person
having the care and custody of an elder or a dependent adult to exercise that
degree of care that a reasonable person in a like position would exercise.” Welfare & Institutions Code
15610.57.
Based on the expert declaration of Dr. Schechter and the
deposition testimony of Plaintiffs, a triable issue of material fact exists as
to whether Defendant’s staff ignored Decedent’s care plan and Defendant’s own
policies and procedures in failing to adequately assess/monitor Decedent’s skin
condition, reposition/turn Decedent as needed and/or meet Decedent’s basic
needs (i.e., hygiene, toileting, etc.).
(See Plaintiffs’ Reply to Defendant’s Separate Statement, Issue
3, Nos. 27-36; Plaintiff’ Separate Statement Nos. 9-10, 12, 16-18, 22). A trier of fact could find that Defendant’s
staff ignoring Decedent’s care plan, failing to check his skin condition,
failing to reposition/turn Decedent as needed, and/or failing to meet
Decedent’s basic needs shows a deliberate disregard of the high probability
that Decedent would suffer injury (i.e., neglect under Welfare &
Institutions Code 15610.57). See Sababin
(2006) 144 CA4th 81, 89-90. Similarly, a
triable issue of material fact exists as to whether such conduct amounts to
fraud, oppression or malice under Civil Code 3294. See Civil Code 3294(a), (c).
A triable issue of material fact also exists as to
whether Defendant authorized or ratified the neglect allegedly committed by its
staff so as to impose liability on Defendant for dependent adult abuse/neglect
and/or punitive damages and attorney fees.
See Welfare & Institutions Code 15657(c); Civil Code 3294(b). Plaintiffs have presented evidence that based
on what they perceived to be the mistreatment of Decedent by Defendant’s staff
Plaintiffs made a complaint to Defendant.
(Plaintiff’s Separate Statement, No.24).
The fact that Defendant chose to respond to that complaint by holding a
meeting with an ombudsman for the hospital, who Defendant now claims is not in
a position of authority, is not sufficient to establish that the conduct was
not authorized or ratified by an officer, director or managing agent of
Defendant. (See Reply,
p.6:18-20). A trier of fact could find
that the failure of an officer, director or managing agent of Defendant to
respond to Plaintiffs’ complaint constitutes authorization or ratification of
the alleged neglect. Otherwise, a
corporate defendant could avoid liability for elder/dependent adult abuse or
neglect by simply making its officers, directors and/or managing agents
unreachable or intentionally ignorant of such complaints.
Based on the foregoing, triable issues of material fact
exist as to the dependent adult abuse/neglect cause of action and the claim for
punitive damages.
With regard to Plaintiff Angelica Humphrey’s claim for
wrongful death, Defendant argues that Humphrey lacks standing to assert such a
claim. The Court finds that Defendant
has met its burden on this issue.
Humphrey is Decedent’s sister.
(Third Amended Complaint ¶3; Plaintiffs’ Reply to Defendant’s Separate
Statement, Issue 5, No.42).
The right/standing to bring a wrongful death action is
governed by statute, here CCP 377.60 The
category of persons eligible to bring a wrongful death action is strictly
construed. Phraner (1977) 55
CA4th 166, 169.
CCP 377.60 provides, in relevant part:
“A cause of action for the death of
a person caused by the wrongful act or neglect of another may be asserted by
any of the following persons or by the decedent's personal representative on
their behalf:
(a) The decedent's surviving
spouse, domestic partner, children, and issue of deceased children, or, if
there is no surviving issue of the decedent, the persons, including the
surviving spouse or domestic partner, who would be entitled to the property of
the decedent by intestate succession. …”
In enacting CCP 377.60, the Legislature made clear that
standing is to be determined according to the laws of intestate succession. Cheyanna M. (1998) 66 CA4th 855,
863-864. Probate Code 6402 provides the
order in which persons would be entitled to a decedent’s property pursuant to
intestate succession if the decedent had no surviving spouse:
“Except as provided in Section
6402.5, the part of the intestate estate not passing to the surviving spouse
under section 6401, or the entire intestate estate if there is no surviving
spouse, passes as follows:
(a) To the issue of the decedent,
the issue taking equally if they are all the same degree of kinship….
(b) If there is no surviving issue,
to the decedent’s parent or parents equally
(c) If there is no surviving issue
or parent, to the issue of the parents or either of them, the issue taking
equally if they are all of the same degree of kinship to the decedent….”
Based on the foregoing, as Decedent’s sister, Humphrey
would only have standing on a wrongful death claim if Decedent had no surviving
issue or parent. Here, Decedent does
have a surviving parent, Denise Caouette, who is already a Plaintiff under the
wrongful death cause of action. (Third
Amended Complaint ¶¶3-4, p.14:4-7).
Additionally, Denise Caouette has been designated as Decedent’s
“successor in interest.” (Third Amended
Complaint ¶6).
Humphrey’s reliance on Wilson (1951) 106 CA2d 440
as authority for her standing to bring a wrongful death claim for “nominal damages”
is unavailing. Wilson is
distinguishable from the instant case.
In Wilson, the decedent’s parents were dead. Id. at 444. Additionally, the Wilson court determined that the brother-sister
relationship in that case was “more than a brother-and-sister relationship” and
“[f]actually, it resemble[d] a father-and-daughter relationship” wherein in the
plaintiff-sister relied on the decedent-brother for financial, as well as
social support. Id. Here, Humphrey presents no evidence to
dispute that she received no financial support from Decedent. (Plaintiffs’ Reply to Defendant’s Separate
Statement, Issue 5, No. 43).
Based on the facts that Decedent’s mother is alive and a
plaintiff in this action, that Humphrey
did not receive any financial support from Decedent and the foregoing statutes
and case law, Humphrey has failed to establish her standing, as a collateral
heir, to recover even nominal damages in this case.
As such, Defendant is entitled to summary judgment as
against Humphrey on her sole cause of action for wrongful death.
CONCLUSION
Based on the foregoing, summary judgment and/or summary
adjudication are denied as to Plaintiff Denise Caouette, individually and as
successor-in-interest to James Caouette III.
Summary judgment is granted as to Plaintiff Angelica J. Humphrey on her
sole cause of action for wrongful death.