Judge: Michael Shultz, Case: 21STCV29973, Date: 2022-08-16 Tentative Ruling
Case Number: 21STCV29973 Hearing Date: August 16, 2022 Dept: A
21STCV29973
Ollie Pearl Owens v. St. Francis Medical Center, et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The Second Amended Complaint (“SAC”)
filed on May 17, 2022, alleges that during Plaintiff’s admission to St. Francis
Medical Center (“St. Francis”) for emergency care, Defendants negligently
failed to lock the wheels to Plaintiff’s hospital bed causing Plaintiff to fall
and sustain injury while Defendants transferred Plaintiff from a gurney to the
bed. Plaintiff alleges claims for medical malpractice, negligence, negligent
supervision and retention, elder abuse, and negligent infliction of emotional
distress.
II.
DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT BY ST. FRANCIS
A.
Demurrer filed May 27, 2022
St. Francis
demurs to the fourth cause of action for violation of the Elder Abuse and
Dependent Adult Civil Protection Act (the “Act”). This action sounds in negligence only.
Defendant’s rendering of treatment to an elder does not transform a negligence
claim to one for elder abuse. Plaintiff is not entitled to recover the
heightened remedies under the Act. Plaintiff alleges negligence because she
fell from a bed. This is not “sufficiently egregious” to support a claim for
elder abuse which is premised on a fundamental failure to provide medical care
for physical and mental health needs. Leave to amend should not be granted.
B.
Opposition filed August 3, 2022
Plaintiff
argues that she is a “Dependent Adult” as defined by Welfare and Institutions
Code section 15610.23. Defendants dropped Plaintiff while being transporting
her to a hospital bed. Defendants failed to prevent a second fall in quick
succession when Plaintiff tried to stand up. Plaintiff is entitled to
heightened remedies where Defendants acted with malice, fraud, or oppression in
commission of abuse. Elder abuse is a viable claim where Defendants dropped the
patient. If the court sustains demurrer, Plaintiff requests leave to amend.
C.
Reply filed August 9, 2022
The facts
alleged in the SAC sound in negligence, not elder abuse. Plaintiff’s conclusion
that the Defendants acted recklessly does not transform it into elder abuse.
The court has discretion to reject conclusions.
III.
LEGAL STANDARDS
A demurrer reaches defects
that appear on the face of the complaint. The court considers the allegations
and matters that are subject to judicial notice. All facts are accepted as true
for purposes of the demurrer. Saunders v. Superior Court (1994) 27 Cal.
App. 4th 832, 838. A demurrer tests the legal sufficiency of the allegations.
It does not test their truth, the Plaintiff’s ability to prove them, or the
possible difficulty in making such proof. Id. at 840.
In testing the sufficiency of
the complaint, the court must assume the truth of (1) the properly pleaded
factual allegations; (2) facts that can be reasonably inferred from those
expressly pleaded; and (3) judicially noticed matters. Blank v. Kirwan
(1985) 39 Cal.3d 311, 318. The court may not consider contentions, deductions,
or conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.App.4th
634, 638.
Because a demurrer tests the
legal sufficiency of a pleading, the plaintiff must show that the pleading
alleges facts sufficient to establish every element of each cause of action. Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the
pleading fails to state facts sufficient to constitute a cause of action,
courts should sustain the demurrer. Code Civ. Procedure § 430.10(e); Zelig
v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.
Sufficient facts are the
essential facts of the case stated "with reasonable precision and with
particularity sufficiently specific to acquaint the defendant with the nature,
source, and extent of his cause of action.” Gressley v. Williams (1961)
193 Cal.App.2d 636, 643-644. Whether the Plaintiff will be able to prove the
pleaded facts is irrelevant. Stevens
v. Superior Court (1986) 180 Cal.App.3d 605, 609–610. A demurrer may also be sustained if a
complaint is “uncertain.” Uncertainty exists where a complaint’s factual
allegations are so confusing, they do not sufficiently apprise a defendant of
the issues it is being asked to meet. Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).
A pleading is required to
assert general allegations of ultimate fact. Evidentiary facts are not
required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th
26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690.
However, unlike federal courts, California state courts are not a
notice-pleading jurisdiction; notice alone is not a sufficient basis for any
pleading. California is a fact-pleading jurisdiction. Merely putting an opposing
party on notice is not sufficient. Bach v. County of Butte (1983) 147
Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d
244, 250.
IV.
DISCUSSION
Defense counsel complied with the
requirement to meet and confer with Plaintiff’s counsel prior to filing the
demurrer. The parties were not able to resolve their disputes. Declaration of
Daniel Dik, ¶ 3; Code Civ. Proc., § 430.41/
Abuse of an elder is defined in
pertinent part as "(1) Physical abuse, neglect, abandonment, isolation,
abduction, or other treatment with resulting physical harm or pain or mental
suffering." Welf. & Inst. Code, § 15610.07. “Neglect” is further
defined in part as "[t]he negligent failure of any person having the care
or custody of an elder or a dependent adult to exercise that degree of care
that a reasonable person in a like position would exercise." Welf. &
Inst. Code, § 15610.57.
The California Supreme Court distinguished
claims for medical malpractice based on negligence with statutory claims for “neglect”
defined under the Act. The Court concluded that “nothing in the legislative
history suggests that the Legislature intended the Act to apply whenever a
doctor treats any elderly patient. Reading the act in such a manner would
radically transform medical malpractice liability relative to the existing
scheme. " Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th
148, 163. “Neglect” under the Act is distinguished from medical malpractice.
The act states that "any cause of action for injury or damage against a
health care provider, as defined in Section 340.5 of the Code of Civil
Procedure, based on the health care provider's alleged professional negligence,
shall be governed by those laws which specifically apply to those professional
negligence causes of action." Welf. & Inst. Code, § 15657.2.
The degree of neglect that will
support a claim for elder abuse is the failure to provide medical care, not the
undertaking of medical services.” Worsham v. O'Connor Hospital (2014)
226 Cal.App.4th 331, 336. The act does not apply to simple or gross negligence
by health care providers. Id. Rather, to obtain the enhanced remedies
provided for under the Act, Plaintiff must show "’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.’ (Delaney,
supra, 20 Cal.4th at p. 31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) ‘Recklessness’
refers to a subjective state of culpability greater than simple negligence,
which has been described as a ‘deliberate disregard’ of the ‘high degree of
probability’ that an injury will occur [citations]. Recklessness, unlike negligence,
involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to
take precautions’ but rather rises to the level of a ‘conscious choice of a
course of action ... with knowledge of the serious danger to others involved in
it.’” Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 337.
Plaintiff alleges that Defendants
“failed to lock the wheels of Plaintiff’s bed,” causing Plaintiff to fall to
the ground upon being transferred from a gurney. SAC, 2:11-12. Plaintiff
alleges a failure to take the necessary precautions, as opposed to conduct
showing malice, fraud, or oppression. Even if Defendants “dropped” Plaintiff as
she contends in opposition, the actionable conduct is the alleged failure to
lock the wheels. Opp. 1, 8-9.
Plaintiff contends that Country
Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120
Cal.App.4th 426, applies since the defendants in that action dropped the
plaintiff, and the court found that the conduct was egregious enough to support
the elder abuse claim. However, in Country Villa, the Plaintiff was not
provided pain relief as prescribed, Defendants failed to implement protocols to
prevent pressure ulcers, and failed to provide for decedent’s personal hygiene,
“leaving her in filthy and unsanitary conditions." Id. at 430. She
developed aspirational pneumonia as a result of Country Villa’s failure to
provide plaintiff with the property diet, to monitor her food intake, and
assist her with her eating. Id. Therefore, Country Villa is
distinguishable, because it did not arise solely from Defendants’ negligence in
dropping plaintiff, but alleged other conduct amounting to a failure to provide
care.
The SAC does not allege a failure
to provide care. The action is premised on injuries suffered as a result of the
alleged fall after Plaintiff was admitted to Defendant’s emergency department.
SAC, ¶¶ 17-19.
Plaintiff
has not adequately demonstrated what allegations could transform a negligent
failure to lock wheels into an action that amounts to a failure to provide
care, on which an elder abuse claim can be based.
III. CONCLUSION
Based on the foregoing,
Defendant’s demurrer to the fourth cause of action for elder abuse only is
sustained without leave to amend. Defendant is ordered to file an answer to the
remaining causes of action within 10 days. CA ST CIVIL RULES Rule 3.1320.