Judge: Ralph C. Hofer, Case: 19STCV33844, Date: 2023-11-17 Tentative Ruling


Case Number: 19STCV33844    Hearing Date: November 17, 2023    Dept: D

TENTATIVE RULING

Calendar:    2
Date:          11/17/2023 
Case No: 19 STCV33844 Trial Date:  June 24, 2024 
Case Name: Tsai, et al. v. Alhambra Hospital, et al.

DEMURRERS (2)
 
Moving Party:            Defendant Pine Grove Healthcare & Wellness
Centre, LP       
Defendant Alhambra Hospital Medical Center 
Responding Party: Plaintiffs Victor Tsai, Alice Tsai and Rose Tsai      
 
RELIEF REQUESTED:
Sustain demurrer to third cause of action of Third Amended Complaint    

CAUSES OF ACTION:   from Third Amended Complaint  
1) Medical Malpractice/Wrongful Death  
2) Medical Malpractice/Negligence/Survival Action 
3) Elder Neglect 

SUMMARY OF FACTS:
Plaintiff Victor Tsai, the surviving spouse of decedent Mimi Kuo, and plaintiffs Alice Tsai and Rose Tsai, the surviving children of decedent, allege that from May through June of 2018, decedent received treatment at different defendants’ health care facilities, and that defendants, and their employees and agents, negligently cared for decedent while she underwent medical treatment under defendants’ care. 

Plaintiffs allege that in May of 2018, decedent was admitted to the emergency room at defendant Hoag Memorial Hospital Presbyterian, where a doctor initially informed decedent and plaintiffs that the hospital needed to keep her due to her condition, but then changed their minds and insisted decedent be transferred out of the hospital despite decedent and plaintiffs’ requests that she not be transferred right away.  

Decedent was transferred to defendant Alhambra Hospital, which pressured decedent to be discharged and transferred to a nursing home, despite decedent and plaintiffs’ request not to be discharged yet.  Decedent was discharged and transferred to Sunny View Care Center, on May 29, 2018, and on June 5, 2018, was transferred back to Alhambra Hospital.  
A few days before June 18, 2023, Alhambra Hospital pressured decedent to be discharged and transferred to a nursing home, again over decedent and plaintiffs’ request not to be discharged, and ultimately discharged decedent and transferred her to defendant Pine Grove Healthcare & Wellness Centre, LP (Pine Grove).

The TAC alleges that all interfacility transfers by the hospitals were untimely and caused additional suffering, injuries and great distress to decedent, and resulted in her death. 
Plaintiffs allege that on June 18, 2018, decedent was admitted to Pine Grove’s facility in San Gabriel, and that the health care providers at Pine Grove were reckless and grossly negligent in their care and treatment of decedent, ignoring decedent’s complaints of feeling feverish, and failing to regularly check her vital signs. 

Plaintiffs allege that on June 21, 2018, decedent became unusually sleepy and not talking, and when plaintiffs requested the nursing personnel to check on her vital signs, personnel would insist that they were normal.  In the early morning of the following day, June 22, 2018, decedent could not be awakened, and plaintiffs requested that nursing personnel check her vital signs.  Nursing personnel used a small blood pressure monitor and claimed the blood pressure was normal, then when the charge nurse was asked to check, and used a blood pressure machine on wheels, the nurse got a completely different reading.  However, the charge nurse still insisted the blood pressure was normal.  Plaintiffs requested another accurate blood pressure machine, but there was no other functional one at the facility, and plaintiffs ultimately located a wrist blood pressure monitor decedent had brought from home to double check her blood pressure.  Plaintiffs were shocked and terrified to find that decedent’s blood pressure was at a very dangerous low level.  Plaintiffs allege that at this time nursing personnel, including the charge nurse, were not reacting to the emergency, and plaintiffs requested that the doctor be called immediately, and had to go to the nursing station several times to demand a call be made to the doctor, and attempted to contact the doctor directly.   The doctor ordered that an ambulance be called right away to transfer decedent to the emergency room of the nearest hospital. 

Plaintiffs allege that when the ambulance/paramedics arrived, and the ambulance/paramedics asked the nursing personnel for a report, the nursing personnel lied with false information to cover the gross mistakes they had previously made, and were unable to give consistent answers concerning the correct blood pressure last taken, so that the paramedics questioned how all of them as health care providers to the patient could not know the state of the patient’s vital signs, and could not give straight answers.  One paramedic scolded the nursing personnel.  Plaintiffs allege that the medical care provided to decedent by defendant Pine Grove was grossly negligent and fraudulent. 

The complaint alleges that as a result of Pine Grove’s gross negligence, decedent was transferred to the ER at San Gabriel Valley Medical Center in the morning of June 22, 2018, where she was coded and intubated, and subsequently transferred to the intensive care unit, where she was coded again on the morning of June 25, 2018, and passed away.  

The file shows that plaintiffs had filed the initial complaint, a first amended complaint, and then a second amended complaint alleging medical malpractice (wrongful death) and medical malpractice (survival action).   Defendants filed answers to the second amended complaint. 

On November 21, 2022, plaintiffs filed a Request for Dismissal with prejudice of Sunny View Care Center, which dismissal was entered as requested on November 22, 2022.    

On June 22, 2023, the court, the Honorable Lisa R. Jaskol presiding, granted a motion brought by plaintiffs for leave to file a Third Amended Complaint to add a cause of action for elder abuse, and plaintiffs were ordered to file and serve the TAC within five days. 

The TAC was timely filed and served on June 23, 2023. 

Defendants Pine Grove and Alhambra Hospital have each filed separate demurrers challenging the sufficiency of the newly added third cause of action for elder neglect. 

ANALYSIS:
Demurrer of Pine Grove 
Defendant Pine Grove argues that the newly added third cause of action for statutory Elder Abuse fails to meet the heightened pleading requirements for statutory claims, and fails to allege specific facts supporting plaintiffs’ allegations that Pine Grove, its employees or staff, acted with oppression, fraud or malice.   Pine Grove also argues that the pleading is vague and uncertain. 

Welfare & Institutions Code §15657, provides for heightened remedies to an elder adult: 
“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse…”

Under Section 15610.57, “neglect” is defined as follows:
“(a) "Neglect" means either of the following:

 (1) The 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.

 (2) The negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise.

(b) Neglect includes, but is not limited to, all of the following:

(1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.

(2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

 (3) Failure to protect from health and safety hazards.

 (4) Failure to prevent malnutrition or dehydration.

 (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.”
(Emphasis added).

The TAC alleges that defendant Pine Grove failed to exercise reasonable care for decedent’s physical needs pursuant to subdivision (b)(2). 
 
The cause of action itself alleges as to Defendant Pine Grove:
“That Defendant Pine Grove Health and Wellness Center failed to exercise reasonable care for Ms. Kuo’s physical needs pursuant to Welfare and Institutions Code § 15610.57(b)(2). Pine Grove Health and Wellness staff failed to regularly assess Ms. Kuo’s vital signs including her blood pressure, ignored Plaintiff Rose Tsai’s attempts to alert staff of Ms. Kuo’s deteriorating level of consciousness, and ultimately failed to transfer Ms. Kuo to a hospital despite Ms. Kuo’s condition becoming a clear and life-threatening medical emergency.”
[TAC, para. 28]. 

The TAC also includes incorporated allegations from the general allegations, which describe in some detail that decedent complained of feeling feverish, which complaints were ignored, that personnel did not check on decedent’s vital signs regularly, and that after failing to reliably take a blood pressure reading, and faced with a situation where decedent’s family had taken matters into their own hands, and realized that decedent was in a health crisis due to dangerously low blood pressure, the Pine Grove staff delayed in calling the doctor, and then lied to the paramedics concerning their assessment of decedent’s condition, providing false information to cover the mistakes they had previously made.  [TAC, para. 10].  It is also alleged that as the result of defendants’ failure to protect decedent and properly supervise, decedent suffered serious injuries to her internal organs, and suffered pain due to those injuries before her death.  [TAC, para 11].   

Defendant relies on Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, in which the court of appeal affirmed the trial court’s sustaining of a demurrer, without leave to amend, of a hospital’s demurrer to claims for elder abuse, willful misconduct and wrongful death, where the allegations were that plaintiff’s decedent developed pneumonia and pressure ulcers after the hospital transferred him to a nursing facility, decedent was twice readmitted to the hospital for treatment of these conditions and died the second time. 

It was also alleged that the hospital did not give decedent lifesaving medications, despite records stating the contrary, and failed to properly stock a crash cart, as a result of which those treating him could not locate a common size endotracheal tube and intubate him in time to save his life.  

The court of appeal set forth several examples of cases in which conduct had been sufficiently egregious to warrant an award of enhanced remedies for Elder Abuse, and set forth the following factors which must be present for conduct to qualify as Elder Abuse:
“From the statutes and cases discussed above, we distill several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney, supra, 20 Cal.4th at p. 34); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin, supra, 144 Cal.App.4th at pp. 85, 90;Benun, supra, 123 Cal.App.4th at p. 116; Mack, supra, 80 Cal.App.4th at pp. 972–973); 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 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) (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b), 15657; Covenant Care, supra, 32 Cal.4th at pp. 783, 786; Delaney, at pp. 31–32). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst. Code, §§ 15610.07, subds. (a), (b), 15657; Perlin, supra, 163 Cal.App.4th at p. 664; Berkley, supra, 152 Cal.App.4th at p. 529.) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims. (Covenant Care, at p. 790.)”
Carter, at 406-407. 

As quoted above, the court of appeal in Carter also held that since violation of the Elder Abuse Act was a statutory cause of action, the facts constituting the neglect and causation must be alleged with “particularity” specificity.  
The allegations which are directed specifically to Pine Grove appear to meet this standard, as it is alleged that this defendant withheld necessary medical attention, both in connection with previous fever and lack of ability to rouse the patient, as well as the later situation where it had become evident that an immediate call to a physician was required, and cooperation with paramedics in assessing decedent’s condition, but defendant’s nursing staff and other personnel delayed in responding and then deliberately covered up their previous conduct.  Defendant argues that it is not alleged with particularity how the conduct caused decedent’s eventual death, but as set forth above, there are allegations that the conduct or failure to act caused damage to vital organs, and pain and suffering by decedent before her death.  [TAC para. 11]. 

Plaintiffs in opposition rely on Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, in which the court of appeal affirmed a judgment entered by the trial court on an elder abuse cause of action after sustaining a demurrer without leave to amend.  

In Worsham, plaintiff, an elder, alleged that she had entered defendant hospital to undergo hip surgery to treat a fractured hip she had suffered as a result of falling in her home.  Following surgery, she was discharged to defendant’s transitional care unit, where she suffered a fall, breaking her right arm and re-breaking her hip.  Plaintiff’s cause of action for elder abuse alleged that the transitional care unit was understaffed and undertrained, and that the lack of sufficient well-trained staff caused her fall.

Plaintiffs apparently rely on the distinction in Worsham drawn between the withholding of treatment and the negligent provision of care, arguing that in this case, both withholding of care and negligence in performing that care occurred. 

In Worsham, the court of appeal set forth the test as follows:
“The Elder Abuse Act does not apply to simple or gross negligence by health care providers. (Delaney v. Baker, supra, 20 Cal.4th at pp. 28–29, fn. 2 (Delaney); Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 785.) To obtain  the enhanced remedies of 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.” (Delaney, supra, 20 Cal.4th at p. 31.) “‘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.’ [Citation.]” (Id. at pp. 31-32).” 
Worsham, at 336-337, italics in original. 

Here, the TAC contains specific allegations of defendant’s personnel withholding testing, and deliberately withholding critical medical information regarding decedent’s vital signs from paramedics in order to cover up prior conduct or failure to act, which could fairly be found by a trier of fact to rise to the level of a conscious choice of a course of action with knowledge of the serious danger to decedent involved in it. 

The demurrer on these grounds accordingly is overruled. 

However, defendant makes a brief argument that the TAC also fails to set forth facts to establish that an officer or other managing agent for Pine Grove consented to, or substantially ratified the improper acts or omissions of their officers or employees. 

Under Welfare & Institutions Code section 15657(c):
 (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer.”

Civil Code sec. 3294(b) requires that a plaintiff seeking punitive damages against a corporation must show such wrongful conduct by managing personnel of the corporation:
“An employer shall not be liable for [exemplary]...damages based upon acts of an employee of the employer, unless the employer...ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice.  With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, or ratification of an act of oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation. “
 Civil Code section 3294(b).  
    
Here, there are no allegations that the Pine Grove employees engaging in the subject conduct were in fact officers, directors, or managing agents, or that their conduct was subsequently ratified by such agents. At best, the allegations refer to the conduct or omissions of a “charge nurse” and the participation of a “supervising nurse” in failing to provide necessary information to the paramedics.  [TAC, para. 10].  It is not alleged that these individuals were managing agents.  The demurrer accordingly is sustained on this ground, with leave to amend to appropriately allege facts supporting participation or ratification by appropriate managerial agents of the corporate employer.   

Demurrer of Alhambra Hospital 
Defendant Alhambra Hospital argues that the third cause of action of the TAC fails to state facts sufficient to state a cause of action against the moving defendant. 

Plaintiffs in opposition again argue that the cause of action is a statutory claim pursuant to which plaintiffs seek to impose responsibility on defendant for neglect of decedent, an elder. 

Plaintiffs argue that the action against the hospital is based on conduct which constitutes both medical malpractice and elder abuse.  Plaintiffs argue that in this case there are allegations of the withholding of life saving medical care by the hospital staff, and that the allegations of the act of transferring a dying patient to a skilled nursing facility is egregious to the point of elder neglect.   As pointed out in the moving papers, while there are certainly allegations that there was allegedly negligent handling of decedent during her stay at Pine Grove, the allegations against the hospital are not detailed. The allegations appear limited to two transfers from the hospital, objected to by decedent and plaintiffs, but not clearly alleged to have been wrongful under any objective standard concerning the operation of the hospital.  

The general allegations against Alhambra Hospital are primarily that the hospital, on two occasions, discharged decedent and had her transferred to other nursing facilities over the objection of decedent and plaintiffs, when decedent and plaintiffs expressed to defendant that decedent was not ready to be transferred yet.  [TAC, para. 8].

Plaintiffs in the opposition rely on the following general allegation from the TAC with respect to the hospital:
“All the interfacility transfers by the hospitals were untimely and caused additional sufferings, injuries and great distresses to Ms. Mimi Kuo. Ms. Mimi Kuo was forced to be transferred and/or discharged prematurely and/or unnecessarily, which caused further injuries to her health and resulted in her death.”
[TAC, para. 9]. 

The cause of action itself alleges, with respect to defendant Alhambra Hospital:
“That Defendant Alhambra Hospital Medical Center failed to exercise reasonable care for Ms. Kuo’s physical, medical, and/or mental health needs pursuant to Welfare and Institutions Code § 15610.57(b)(2). Despite Ms. Kuo presenting severe symptoms requiring care at an accredited hospital, Alhambra Hospital Medical Center instead chose to transfer Ms. Kuo to a lower-acuity skilled nursing facility two separate times. Further, Alhambra Hospital Medical Center failed to properly advise the Plaintiffs of Ms. Kuo’s negative obtain [sic] informed consent the Plaintiffs of this decision and its underlying reasoning. In effect, this prevented the Plaintiffs from meaningfully deliberating regarding Ms. Kuo’s further care options.”
[TAC, para. 27].  

These allegations do not appear sufficiently detailed, as required under Carter, discussed above, to show the affirmative withholding of care, or some conscious disregard with respect to a looming problem which could support a finding on the part of the trier of fact that moving defendant acted with a conscious choice of a course of action with knowledge of the serious danger to others involved in it.

Defendant hospital argues that this case is similar to Carter, in which the court of appeal found the demurrer of the hospital had been properly sustained, in part because the egregious conduct alleged in that matter was conduct which had not been engaged in by the hospital, but by the skilled nursing facility. Carter, at 409-410  (“The only acts and omissions listed in these “counts” that arguably are sufficiently egregious to constitute elder abuse—abandoning and isolating Grant in the shower; not drying him after bathing; not providing sufficient fluids for proper hydration; and not treating the pressure ulcers on his lower back and buttocks, resulting in sepsis… are attributable exclusively to the Center.”)

Defendant also cites to Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, in which the court of appeal affirmed the trial court’s sustaining of a demurrer without leave to amend to an elder abuse cause of action based on allegations that a patient died after defendants hospital and various medical professionals failed to provide the life-sustaining treatment and comfort care requested in the patient’s advance health directive.  The court of appeal specifically noted:
"Unlike cases in which elder abuse is properly pleaded because the patient was abandoned or ignored for extended periods of time, here family members disagreed with the nature of care their mother was receiving. Disagreements between physicians and the patient or surrogate about the type of care being provided does not give rise to an elder abuse cause of action."
Alexander, at 223. 

The allegations here, vague allegations that transfers were made with which decedent and plaintiffs, decedent’s family members, disagreed, appear to fall within this analysis in Alexander. 

The demurrer accordingly is sustained on this ground with leave to amend to allege facts with particularity supporting a claim against moving defendant hospital which would rise to the level of elder abuse.  


Leave to Amend
Moving defendants both argue that the demurrers should be sustained without leave to amend.  The argument appears to be that this is plaintiffs’ third amended complaint, and plaintiffs have already amended filed four versions of the complaint.  However, this is the first version of the complaint to attempt to allege elder abuse based on neglect, and the first demurrers which have been filed to any version of the complaint.  

Particularly, as at least one demurrer is sustained at least in part for failure to allege the cause of action with particularity, and the other for failure to clearly allege ratification or conduct by personnel specifically alleged to have been officers, directors, or managing agents.  It does not appear from the pleadings and circumstances that the pleading could not be successfully amended.  One opportunity to amend this new cause of action accordingly is permitted. 

RULING:
Demurrer of Pine Grove:
Defendant Pine Grove Healthcare & Wellness Centre, LP’s Demurrers and General and Special Demurrers to Third Amended Complaint are SUSTAINED WITH LEAVE TO AMEND on the ground the third cause of action fails to allege conduct engaged in by, or authorized or ratified by an officer, director or managing agent of the moving defendant.  

Demurrers on all other grounds are OVERRULED. 

Defendant Pine Grove Healthcare & Wellness Centre, LP’s UNOPPOSED Request that the Court Take Judicial Notice in Support of its Demurrer to the Third Amended Complaint is GRANTED, to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the Court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case.).

Ten days leave to amend. 

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed. 

Demurrer by Alhambra Hospital Medical Center to Third Amended Complaint:

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the third cause of action for elder neglect on the grounds the pleading fails to allege facts with particularity supporting a claim against moving defendant hospital which would rise to the level of elder abuse.  

Ten days leave to amend, if possible. 

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed. 


 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 
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