Judge: Ralph C. Hofer, Case: 22STCV07440, Date: 2022-08-12 Tentative Ruling
Case Number: 22STCV07440 Hearing Date: August 12, 2022 Dept: D
TENTATIVE RULING
Calendar: 7
Date: 8/12/2022
Case No: 22 STCV07440 Trial Date: None Set
Case Name: Shu v. Lin, et al.
DEMURRER
MOTION TO STRIKE
Moving Party: Defendant San Gabriel Valley Medical Center
Responding Party: Plaintiff Margaret Shu, individually and as Successor in Interest
RELIEF REQUESTED:
Sustain demurrer to first and fourth causes of action of First Amended Complaint
Strike punitive damages, enhanced remedies
CAUSES OF ACTION: from First Amended Complaint
1) Elder Abuse and Neglect
2) Wrongful Death
3) Medical Malpractice
4) Violation of Resident’s Bill of Rights
SUMMARY OF FACTS:
Plaintiff Margaret Shu, individually and as successor in interest to decedent Itzu Po, Shu’s parent, alleges that plaintiffs’ decedent was approximately 80 years old, and at all relevant times an elder, when she was sent from Kaiser to defendant San Gabriel Valley Medical Center on April 13, 2021, and on admission was assessed as being bed bound, intubated and dependent for bed mobility and transfers. On admission, decedent did not have any skin breakdowns.
The FAC alleges that as early as May 4, 2021, Shu advised San Gabriel Valley Medical Center of decedent’s skin breakdown, but defendant failed to treat and comply with decedent’s plan of care, so that the skin breakdown worsened, and decedent developed multiple pressure ulcers to multiple areas, including her sacral area. The FAC alleges that defendant failed to reposition decedent, and that decedent was left sitting in her own urine and feces, and that defendant delayed for lengthy periods in cleaning decedent even after plaintiff Shu had asked for decedent to be changed. Plaintiffs allege that defendant failed to comply with accepted standards and principles as required under federal and state statutes and regulations, including those requiring defendant to develop, implement and update patient care plans, to hire and schedule sufficient staff to care for patients, to accept and retain only those patients for whom the facility could provide adequate care, and to ensure that the resident environment remained one with adequate supervision and assistance devices to prevent accidents. It is alleged that defendant allowed decedent to deteriorate, and to suffer significant skin breakdown necessitating wound care and surgery, and that defendant attempted to conceal their conduct by failing to advise decedent’s family of the situation, and to properly address the issues and recommended interventions.
The FAC also alleges that in February of 2021, decedent presented to defendant Michael W. Lin, M.D. for medical treatment of diabetes, and was prescribed medication. At a follow up appointment defendant Dr. Lin noted that decedent had not responded to the maximum dose of the medication, and therefore started decedent on a Basaglar 30 units in the morning but failed to provide decedent with insulin initiation teaching or other instructions on the use of insulin. On April 2, 2021, decedent had a telehealth appointment with defendant Dr. Lin, and continued to have elevated blood sugar, so that Dr. Lin increased the Basaglar to 50 units. On April 10, 2021, decedent was found unresponsive by plaintiff Shu, and was taken to the hospital and never recovered, ultimately dying on November 15, 2021. The FAC alleges that the breaches of defendants’ duties, and their acts and omissions, were the direct and proximate causes of decedent’s death.
The FAC also alleges that during decedent’s residency at defendant San Gabriel Valley Medical Center, defendant violated several of the patient’s rights under the Resident’s Bill of Rights.
ANALYSIS:
Demurrer
First Cause of Action—Elder Abuse and Neglect
Moving defendant San Gabriel Valley Medical Center argues that the cause of action is uncertain and fails to facts sufficient to state the cause of action.
Specifically, it is argued that plaintiffs lump together intentional and negligent misconduct, creating ambiguity.
The FAC brings this cause of action based on alleged neglect by defendant while decedent was a resident at defendant’s facility. Defendant’s argument appears to concede that the cause of action includes at least some alleged intentional activity.
Welfare & Institutions Code §15657, provides for heightened remedies to an elder or dependent 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.”
(Emphasis added).
Defendant argues that the FAC fails to sufficiently allege neglect, alleging only negligence, in reliance on Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771 and Delaney v. Baker (1999) 20 Cal.4th 23. Covenant Care concerned resolution of the issue, which had resulted in a split among the Districts, of whether an Elder Abuse plaintiff need file a separate CCP section motion to allege punitive damages. The California Supreme Court relied on the distinction between professional negligence and the higher level of misconduct required to support an Elder Abuse claim, noting:
“It is true that statutory elder abuse includes "neglect as defined in Section 15610.57" (Welf. & Inst. Code, @ 15657), which in turn includes negligent failure of an elder custodian "to provide medical care for [the elder's] physical and mental health needs" (id., @ 15610.57, subd. (b)(2)). But as we explained in Delaney, " neglect" within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from "professional negligence."
As used in the Act, 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." (Delaney, supra, 20 Cal.4th at p. 34.) Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. (Ibid.) Notably, the other forms of abuse, as defined in the Act--physical abuse and fiduciary abuse (Welf. & Inst. Code, @ 15657)--are forms of intentional wrongdoing also distinct from "professional negligence." Delaney, supra, at p. 34.)
As we determined in Delaney, if the neglect (or other abuse)
is reckless or done with oppression, fraud, or malice, "then the action falls within the scope of [Welfare and Institution Code] section 15657 and as such cannot be considered simply 'based on ... professional negligence' ....
That only these egregious acts were intended to be sanctioned under Section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened 'clear and convincing evidence' standard." (Delaney, supra, 20 Cal.4th at p. 35.)
Covenant, at 783.
Covenant involved allegations of long-term neglect, resulting in decedent’s near starvation, severe dehydration, and infected bed sores, as well as allegations of a corporate scheme to misappropriate Medicare funds and avoid code violations. These allegations were clearly sufficient to amount to Elder Abuse under the statute.
Delaney v. Baker (1999) 20 Cal.4th 23 involved allegations that decedent had been repeatedly permitted to lie in her own urine and feces at a nursing home, so that four months after admission, she suffered pressure ulcers down to her bones.
The allegations here are similarly that decedent was admitted to defendant’s facility with no skin breakdown but was allowed to lie in her own urine and feces at defendant’s facility, so that within weeks she developed skin breakdown, which was permitted to develop into significant pressure ulcers, which ultimately required surgery. [FAC, paras. 18-20, 29, 31, 32]. It is also alleged that defendant was aware it was understaffed and unable to sufficiently attend to decedent, and that it attempted to conceal its misconduct, despite the fact any reasonable person would have seen decedent was suffering. [FAC, paras. 21, 28, 29, 32]. These allegations appear to be similar to the conduct found sufficient in Covenant Care and Delaney to support an elder abuse claim based on neglect, specifically, the failure to provide personal hygiene, provide medical care, and protect from health and safety hazards.
Defendant also 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 discussed above, the pleading here alleges in detail that defendant neglected decedent, leaving her lying in her own feces and urine so that she developed severe pressure ulcers, which ultimately required surgery. This showing is more than sufficient to allege the statutory conditions of neglect with sufficient factual particularity.
In addition, the court of appeal in Carter found the demurrer of the hospital in that case had been properly sustained, in part because the egregious conduct alleged in that matter was conduct which had not been engaged in by the demurring hospital defendant, but by the skilled nursing facility, which conduct is similar to the type of conduct alleged on the part of moving defendant here:
“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 (see Welf. & Inst.Code, § 15610.07, subd. (a) [abuse includes abandonment and isolation]; id., § 15610.57, subd. (b)(1), (2), (4) [neglect includes failure to assist with hygiene, provide medical care or prevent dehydration] )—are attributable exclusively to the Center.
Carter, at 409-410, emphasis added.
The FAC sufficiently alleges neglect to survive demurrer, and the demurrer on this ground is overruled.
Defendant also argues that the pleading fails to sufficiently allege ratification of the alleged conduct by defendant, the employer of the staff allegedly engaged in the alleged elder abuse.
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. “
Civ. Code sec. 3294(b).
The FAC does not appear to include allegations that defendant employer ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice, or that any authorization or ratification was made on the part of an officer, director, or managing agent of the corporate defendant.
Plaintiffs in opposition argue that plaintiffs allege the existence of a managing agent, or that the corporate hierarch authorized persons to engage in the abusive conduct, but points to no allegations in the pleading directed to such managing agent or authorization.
The demurrer accordingly is sustained on the ground that the pleading fails to sufficiently allege conduct or ratification by managing personnel of the corporate defendant.
Fourth Cause of Action—Violation of Patient’s Bill of Rights
Defendant San Gabriel Valley Medical Center argues that plaintiffs allege that defendant is a “general acute care hospital,” and that the Resident’s Bill of Rights relied upon does not apply to such hospitals.
Health and Safety Code section 1430(b) provides:
“(b) A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.”
Under Health and Safety Code section 1250:
“(c) "Skilled nursing facility" means a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.
(d) "Intermediate care facility" means a health facility that provides inpatient care to ambulatory or nonambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care.”
The section also defines, at subdivision (a), a “General acute care hospital.” This language suggests that the provisions of section 1430(b) intentionally exclude such facilities from its reach.
The FAC alleges at paragraph 7 that defendant San Gabriel Valley Medical Center “was doing business as a general acute care hospital located at 438 W. Las Tunas Dr., San Gabriel, CA 91776.” [FAC, para. 7].
Plaintiffs in opposition argue that it is alleged the defendant is a skilled nursing facility, and that defendant has not requested that the court judicially notice any material that would contradict the allegation as to defendant’s status.
The FAC does allege at paragraph 66, in the cause of action for Violation of Residents’ Bill of Rights:
“Plaintiffs are informed and believe, and thereupon allege, that SAN GABRIEL VALLEY MEDICAL CENTER located at 438 W. Las Tunas Drive, San Gabriel, California. [sic]. Defendant SGVMC are licensed through the California Department of Public Health to actively provide 24-hour custodial care and services and otherwise do business as a skilled nursing facility, further defined in Health and Safety Code section 1250 as a “health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis.” Accordingly, SGVMC is and has at all relevant times been governed by state and federal laws and regulations regarding skilled nursing facilities.”
[FAC, para. 66].
This allegation is in seeming contradiction to the previous allegation and creates ambiguity and uncertainty within the pleading itself. Plaintiffs argue that defendant has “another campus that acts as a Skilled Nursing Facility…” [Opposition, p. 8:25-28, emphasis added]. This claim does not appear to establish that the facility at issue is subject to the Resident’s Bill of Rights, if the skilled nursing facility is a separate facility. Plaintiffs also in opposition requests that the court take judicial notice of supposed licensing documentation inserted into the opposition memorandum. As pointed out in the reply, this is improper, as CRC Rule 3.1113(l) provides, with respect to a memorandum filed in support of a motion:
“(l) Requests for judicial notice Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”
There has been no separate document filed requesting judicial notice here, and this request accordingly is denied.
The demurrer is sustained with leave to amend to clarify whether the facility where decedent was a resident and treated, and where the alleged violations occurred, was a general acute care hospital, or some other type of facility subject to the Resident’s Bill of Rights. If the facility in question is a general acute care hospital, the court will expect on any further demurrer thorough briefing on how the operation of another facility with a skilled nursing license would impose the alleged statutory duties on defendant San Gabriel Valley Medical Center.
Strike
Defendant seeks to strike the claim for punitive damages and enhanced remedies sought in connection with the Elder Abuse cause of action, and as incorporated into the second, third and fourth causes of action. As noted above, such remedies are available when an Elder Abuse claim is sufficiently established. Since the court will permit leave to amend the Elder Abuse and Neglect cause of action to sufficiently allege ratification to support the claim and the heighted remedies, the motion to strike is deemed moot.
To the extent the motion seeks to strike such damages to the extent plaintiffs intend to pursue them as to the second and third causes of action, moving defendant is not named in those causes of action as a defendant, so has no standing to move to strike the allegations as to those causes of action.
To the extent the motion seeks to strike such damages to the extent plaintiffs intend to pursue them as to the fourth cause of action, the motion is deemed moot in light of the sustaining of the demurrer to that cause of action with leave to amend.
Plaintiffs on amendment should consider clarifying which damages and remedies are sought in connection with each cause of action, rather than incorporating allegations by reference.
RULING:
Defendant San Gabriel Valley Medical Center’s Demurer to Plaintiff’s First Amended Complaint:
Demurrer is SUSTAINED WITH LEAVE TO AMEND to the first cause of action for Elder Abuse and Neglect on the ground the cause of action fails to allege conduct engaged in by, authorized, or ratified by an officer, director or managing agent of the moving defendant.
Demurrer on all other grounds is OVERRULED.
Demurrer is SUSTAINED WITH LEAVE TO AMEND to the fourth cause of action for Violation of Resident’s Bill of Rights on the ground the cause of action is ambiguous and uncertain with respect to whether the moving defendant is alleged to be a general acute care hospital or a skilled nursing facility. [Compare para. 7 to para. 66].
To the extent plaintiffs appear to request that the court judicially notice materials in the opposition memorandum, the request is not made in a separate document, and the material not sufficiently provided to the Court, so the request for judicial notice is DENIED. CRC Rule 3.1113(l)
Ten days leave to amend.
Defendant San Gabriel Valley Medical Center’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is MOOT in light of the sustaining of the demurrer with leave to amend.
The parties are ordered to meet and confer in full compliance with CCP §§ 430.41 and 435.5 before any further demurrer or motion to strike may be filed.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines. In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask. The Department D Judge and court staff will continue to wear face masks. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.
