Judge Ronald F. Frank, Case Number: 24TRCV00484, Date: 2024-08-23 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV00484, Date: 2024-08-23 Tentative Ruling

Case Number: 24TRCV00484 Hearing Date: August 23, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: August 23, 2024¿

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CASE NUMBER: 24TRCV00484

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CASE NAME: Susan Rosak, by and through her Power of Attorney, Michael Rosak v. Providence Health System – Southern California, et al.

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MOVING PARTY: Defendants, Providence Little Company of Mary Medical Center Torrance and Providence Little Company of Mary Transitional Care Center

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RESPONDING PARTY: Plaintiffs, Susan Rosak

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TRIAL DATE: None set.

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MOTION:¿ (1) Demurrer¿

(2) Motion to Strike

Tentative Rulings: (1) SUSTAINED with twenty (20) days leave to amend.

(2) MOOTED.

I. BACKGROUND¿¿

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A. Factual¿¿

On February 9 2024, Plaintiff, Susan Rosak, by and through her Power of Attorney, Michael Rosak (“Plaintiff”) filed a complaint against Defendants, Providence Health System – Southern California dba Providence Little Company of Mary Medical Center Torrance, Providence Health System – Southern California dba Providence Little Company of Mary Transitional Care Center, and DOES 1 through 200. The complaint alleges causes of action for: (1) Elder Abuse; (2) Negligence; and (3) Violation of Residents Rights. The complaint asserts that while under the care and treatment of Defendants, Plaintiff developed pressure injuries to her sacrum/coccyx which caused her to endure extreme pain and suffering. (Complaint, ¶ 13.)

Defendants, Providence Little Company of Mary Medical Center Torrance and Providence Little Company of Mary Transitional Care Center (collectively, “LCM”) file a demurrer and motion to strike portions of the complaint.

B. Procedural¿¿

On July 24, 2024, Demurring Defendants, filed a demurrer and motion to strike portions of the original complaint. On August 12, 2024, Plaintiff filed an opposition brief. On August 16, 2024, Demurring Defendants filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE

With LCM’s moving papers, they also requested this Court take judicial notice of the following documents:

1. Publication from the United States Department of Health and Human Services, Office of the Inspector General, Adverse Events Toolkit: Clinical Guidance for Identifying Harm (July 2023), p. 36, accessed at https://oig.hhs.gov/oei/reports/OEI-06-21-00031.pdf.

2. Corporate documents filed with the California Secretary of State, which may be accessed at https://bizfileonline.sos.ca.gov/.

3. Facility-license documents from the California Department of Health Care Access and Information, which may be accessed at https://hcai.ca.gov/facilities/building-safety/facility-detail/.

The Court also GRANTS this request and takes judicial notice of the above documents.

III. ANALYSIS¿

A. Demurrer

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿

Elder Abuse

LCM Defendants demur to the complaint on the grounds they argue the first cause of action for Elder Abuse fails to state facts sufficient to constitute a cause of action against demurring Defendants as the facts alleged pertain to the provision of medical services by a hospital and skilled nursing facility – not services by a custodial caretaker. Moving Defendants also demur to the first cause of action for Elder Abuse on the grounds that they assert it is uncertain and not stated with sufficient particularity against demurring Defendants.

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against those who abuse an elder or a dependent adult. Dependent adult abuse includes physical abuse, neglect, isolation, deprivation by a care custodian of necessary goods or services, and financial abuse. (Welf. & Inst. Code, § 15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).)

[S]everal factors [] 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; (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 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). 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. 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.

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407 (“Carter”), citations omitted.)

Before this Court probes the line drawing between “negligence” and “neglect,” which often arises in these cases, Plaintiff must plead that LCM Defendants had a “caretaking or custodial” relationship with the Plaintiff. This is merely another way of describing the first element of the claim – no defendant can be liable unless they were “responsible” for meeting the “basic needs” of the injured party. According to the California Supreme Court, a “basic need” is something “that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.) LCM Defendants argue that the allegations relative to provision of substandard medical services by a hospital have the gravamen of a theory of medical negligence, not elder abuse.

LCM Defendants rely on the case of Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, to argue that Plaintiff’s allegations are not indicative of elder abuse as they demonstrate that Plaintiff relied on Defendants to address her medical concerns in a way consistent with how a person would usually act in “reliance on the advice and care of his or her medical provider.” (Oroville Hospital v. Superior Court(2022) 74 Cal.App.5th 382, 405-406; quoting Winn, supra, 63 Cal.4th at 165.) In Alexander, the decedent, a 70-year-old woman suffering from end-stage terminal pancreatic cancer, died days after she was transferred from a skilled nursing facility to the defendant hospital. (Alexander, supra, 23 Cal.App.5th at 212.) The complaint alleged that the “[d]efendants administered drugs to [the decedent] to hasten her death and withheld nutrition, hydration, and pain medication,” but was also “replete with allegations that [the decedent] regularly received pain medication, nutrition, and fluids” and that defendants “provided [the decedent] with medical care throughout her hospitalization.” (Id. at 224.) The Fourth District Court of Appeal held that the plaintiffs’ complaint was insufficient to state a cause of action for elder abuse within the meaning of the Elder Abuse Act because “[u]nlike cases in which elder abuse is properly pleaded because the patient was abandoned or ignored for extended periods of time, her 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.” (Id. at 223. )

LCM Defendants also rely on Winn v. Pioneer Medical Group, Inc., where the California Supreme Court flushed out the legislative intent of the statute to determine the relationship between provider and patient. In Winn, the Court noted that section 15610.57, subdivision (b)(2)’s use of the word “provide: suggested “a care provider’s assumption of a substantial caretaking or custodial role, as it speaks to a determination made by one with control over an elder whether to initiate medical care at all. Read in tandem, section 15610.57, subdivisions (a)(1) and (b)(2) support a straightforward conclusion: whether a determination that medical care should be provided is made by a health care provider or not, it is the defendant’s relationship with an elder or a dependent adult – not the defendant’s professional standing or expertise – that makes the defendant potentially liable for neglect.” (Winn, supra, at 158.) As such, LCM Defendants argue that pursuant to the above precedent, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covernant Care, supra, 32 Cal.4th at 783.)

Here, this Court notes that the failure to protect from health and safety hazards may qualify as a basic need. (Welfare & Institutions Code §15610.57, subd. (b)(3).) This is what Plaintiff alleges both LCM Defendants were to provide. The complaint alleges that both Mary Medical and Mary Transitional neglected to provide medical care for Plaintiff’s physical and mental health needs by failing to take all the necessary steps to properly care for her pressure injuries. (Complaint, ¶¶ 20, 26.) Further, this Court notes that the Elder Abuse Act defines “care custodians” to include “[t]wenty-four-hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code,” which includes both general acute care hospitals as well as skilled nursing facilities. (Cal. Health & Safety Code § 1250, subds. (a), (c)(1).) Plaintiff identifies LCM Medical as a licensed general acute care hospital and identifies LCM Transitional as a licensed 24-hour skilled nursing facility. (Complaint, ¶¶ 2, 3.) As such, based on these allegations, Plaintiff has alleged the very definitions required by the statute. However, these allegations alone do not determine the relationship between LCM Defendants and Plaintiff.

This Court preliminarily disagrees with LCM Defendants’ argument that this case is akin to Alexander. The complaint in the case at bar is not premised on a disagreement between physician and patient/patient’s family as to the nature of care Plaintiff was receiving. Instead, this Court finds this case to be far more similar to the facts in Carter v. Prime Healthcare Paradise Valley, LLC. In Carter, an 87-year-old was admitted to defendant Hospital for chest pain approximately two months after undergoing hip surgery. (Carter, supra, 198 Cal.App.4th at 401.) The decedent was hospitalized on three different occasions at defendant Hospital. The first time, he did not have pressure ulcers. (Ibid.) However, during the latter two, decedent was admitted for the treatment of not only pneumonia, but sepsis and pressure ulcers as well. (Ibid.) The complaint in Carter also alleged that during his time at the hospital, he developed additional pressure ulcers. (Id. at 401-402.) During his third visit to the hospital, the hospital failed to give decedent life-saving medications, including antibiotics, despite records stating the contrary, and failed to properly stock a “crash cart” for use in emergency situations, again despite records stating the contrary. (Id. at 402.) As to the pressure ulcers, the Fourth District Court of Appeal held that the trial court did not err in sustaining the demurrer as the allegations that decedent developed pressure ulcers on his lower back and buttocks while at the center, developed additional ulcers at the hospital, and that the hospital “fraudulently and falsely” documented as :there one day and then disappearing the next,” failed to allege that any treatment or care by the hospital was denied or withheld from decedent. (Id. at 408.) Further, the Carter Court held that although plaintiff alleged that during his hospitalization, decedent suffered additional pressure ulcers, which were falsely documented, there were no allegations as to how the Hospital or its false documentation caused the ulcers or any other injury to decedent. (Ibid.)

Here, Plaintiff has alleged that both LCM Defendants failed to adequately inform Plaintiff’s physician of the nature and extent of her pressure injuries, and failed to adequately and completely carry out doctor’s orders for their treatment and failed to adequately and appropriately document Plaintiff’s plan of care. (Complaint, ¶¶ 21, 26.) Plaintiff also alleges that both LCM Defendants’ neglect of Plaintiff was reckless, oppressive, and malicious as the individuals who cared for her knew that taking the necessary precautions to prevent her from incurring avoidable pressure injuries, was critical to her health, well-being, and prognosis. (Complaint, ¶¶ 22, 27.) By failing to address Plaintiff’s patient care issues, Plaintiff alleges that both LCM Defendants knew that it was highly probable that she would suffer pressure injuries and they knowingly disregarded that risk. (Complaint, ¶¶ 22, 27.) The complaint further contends that Plaintiff’s injuries would not have occurred had LCM Defendants adhered to applicable rules, laws and regulations, as well as the acceptable standards of practice governing the operation of both a general acute care hospital and a skilled nursing facility. (Complaint, ¶¶ 23, 28.)

Plaintiff alleges that as a direct result of the chronic understaffing at LCM Medical by their managing agents in both number and training, and in deliberate violation of Title 22 §§ 70214 (staff training) and 702117 (staff ratios), LCM Medical staff failed to provide Plaintiff with proper care (repositioning and skin inspections) to prevent skin breakdown. (Complaint, ¶ 24.) Plaintiff asserts that she suffered these injuries because LCM Medical staff did not have adequate time or the knowledge base to provide her with the required care and to document and address her emergent conditions. (Complaint, ¶ 24.) Plaintiff also alleges that minimum staffing of personnel at LCM Transitional was dependent by law upon the acuity (need) level of the patients of both LCM Defendants, and at the time of Plaintiff’s residency, was so high that the required “minimum” staffing ratios exceeded the applicable numeric minimum requirement of Health and Safety Code section 1276.5 pursuant to the provisions of Title 22 C.C.R. §§ 7251(b) and 72329. (Complaint, ¶ 29.) During the residency of Plaintiff at LCM Transitional, LCM Transitional did not meet those minimum staffing requirements based on its residents’ acuity levels, including Plaintiff. (Complaint, ¶ 29.)

This Court notes that unlike the allegations in Carter, Plaintiff in this alleges how the actions of LCM Defendants caused the pressure ulcers by including that they failed to properly staff their care facilities. Despite these allegations, LCM Defendants argue that that the requirements of Winn are still not met. In opposition, Plaintiff cites to the case of Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, to argue that there, allegations in a complaint that a hospital had a pattern and practice of improperly staffing which, in turn, led to a patient fell and suffered a hip injury when left unattended despite the hospital knowing he was an extreme fall risk, were sufficient to state a claim for elder abuse under Welfare and Institutions Code section 15657. However, as noted by LCM Defendants, the California Supreme Court in Winn was decided two months after Fenimore, and thus, Fenimore did not analyze the distinctions between professional negligence and elder-dependent adult abuse or between medical services and custodial neglect, which Winn deemed is required.

Additionally, this Court notes that Plaintiff’s complaint fails to allege how LCM Defendants’ understaffing amounted to recklessness on the part of LCM Defendants. How understaffed were LCM Defendants? Was Plaintiff not rotated enough or examined enough due to how understaffed LCM Defendants were? This portion of the complaint does lack the specificity required in an Elder Abuse Act cause of action. This Court holds that although more detailed than some of the cases LCM Defendants cite to, the complaint lacks the level of particularity needed to maintain a cause of action for statutory elder abuse. This Court also finds that the complaint failure to plead this cause of action with the requisite level of particularity leaves it vulnerable to amounting to professional negligence versus the recklessness required for a statutory elder abuse claim. For example, although not decided on demurrer, both parties cited to the California Supreme Court case of Delaney v. Baker (1999) 20 Cal.4th 23. In Delaney, the California Supreme Court affirmed a judgment award in favor of Plaintiff on her reckless neglect of an elder cause of action after evidence was introduced that she was left lying in her own urine and feces for extended periods of time and at the time of her death, had stage III and stage IV pressure ulcers to the point where her tissue had been eaten away down to the bone. (Delaney, supra, 20 Cal.4th at 27.) Although this issue is being decided at demurrer, the Plaintiff must allege how the understaffing and failure to train led to Plaintiff’s injuries. Was Plaintiff left alone for long periods of time without being adjusted? Were Plaintiff’s skin injuries treated incorrectly? Because this demurrer is brought only after Plaintiff’s original pleading, the Court need not decide whether this cause of action is duplicative of the professional negligence cause of action as this Court will be allowing Plaintiff leave to amend.

As such, the demurrer is SUSTAINED with twenty (20) days leave to amend.

B. Motion to Strike

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that the pleading has irrelevant, false improper matter, or has not been drawn or filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Id., § 437.)¿ “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)¿ ¿

Discussion

Here, LCM Defendants move to strike the following from Plaintiff’s complaint: (1) From the Prayer for damages, page 11, lines 4-5, ¶ 3, “For attorney’s fees and costs pursuant to Welfare and Institutions Code § 15657(a) (As to the First Cause of Action only)”; and (2) From the Prayer for damages, page 11, lines 6-7, ¶ 4, “For exemplary and punitive damages pursuant to Civil Code §3294 (As to the First Cause of Action only).” (Exhibit 7.) Because the motion to strike is premised on the failed Elder Abuse cause of action, this Court notes that its above sustaining of the demurrer on the same grounds effectively MOOTS the motion to strike.

IV. CONCLUSION¿¿

For the foregoing reasons, the LCM Defendants’ demurrer is SUSTAINED in part and SUSTAINED with twenty (20) days leave to amend. Further, the motion to strike is MOOTED.

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LCM Defendants are ordered to give notice.¿¿¿¿