Judge: Salvatore Sirna, Case: 23PSCV01147, Date: 2023-11-30 Tentative Ruling

Case Number: 23PSCV01147    Hearing Date: March 26, 2024    Dept: G

Defendant Pomona Valley Hospital Medical Center’s Demurrer to Plaintiffs’ Second Amended Complaint

Respondent: Plaintiffs Kelly Chu and Ken Chu

Defendant Pomona Valley Hospital Medical Center’s Motion to Strike Portions of Plaintiffs’ Second Amended Complaint

Respondent: Plaintiffs Kelly Chu and Ken Chu

TENTATIVE RULING

Defendant Pomona Valley Hospital Medical Center’s Demurrer to Plaintiffs’ Second Amended Complaint is SUSTAINED without leave to amend.

Defendant Pomona Valley Hospital Medical Center’s Motion to Strike Portions of Plaintiffs’ Second Amended Complaint is GRANTED.

BACKGROUND

This is an action for dependent adult abuse. On April 28, 2022, Plaintiff Kelly Chu was admitted to Defendant Pomona Valley Hospital Medical Center (PVHMC)’s intensive care unit (ICU) after suffering a stroke. To prevent the formation of deep vein thrombosis, PVHMC staff began to utilize a sequential compression device. From April 29 to April 30, Kelly Chu alleges PVHMC staff failed to ensure the sequential compression device did not cause injury or discomfort to Kelly Chu. As a result, Kelly Chu alleges the sequential compression device caused a medical device-related pressure injury to form.

On April 18, 2023, Kelly Chu and Ken Chu filed a complaint against PVHMC and Does 1-250, alleging the following causes of action: (1) dependent adult abuse/neglect, (2) negligence, and (3) loss of consortium.

On September 14, 2023, the Chus filed a First Amended Complaint (FAC) against the same Defendants alleging the same causes of action. On November 30, the court sustained PVHMC’s demurrer to the FAC with leave to amend.

On December 6, 2023, the Chus filed a Second Amended Complaint (SAC) against the same Defendants alleging the same causes of action.

On January 12, 2024, PVHMC filed the present demurrer and motion to strike. At the court’s direction, PVHMC’s counsel telephonically met and conferred with the Chus’ counsel on March 8. (Hayati Suppl. Decl., ¶ 6.)

A hearing on the demurrer and motion to strike is set for March 26, 2024, along with a case management conference/status conference re: ADR.

ANALYSIS

PVHMC demurs to Kelly Chu’s first cause of action for dependent adult abuse and neglect. For the following reasons, the court SUSTAINS their demurrer with leave to amend.

Legal Standard

Demurrer

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Elder Abuse

Pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA), a “dependent adult” is defined as any person “regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.” (Welf. & Inst. Code, §15610.23, subd. (a).)¿“Abuse of an elder or a dependent adult” includes (1) “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or (2) “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd. (a)(1), (2).)

Neglect is defined as the “[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, subd. (a)(1).) It includes but is not limited to:

“(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. A person shall not be deemed neglected or abused for the sole reason that the person 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) Substantial inability or failure of an elder or dependent adult to manage their own finances.

(6) Failure of an elder or dependent adult to satisfy any of the needs specified in paragraphs (1) to (5), inclusive, for themselves as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.” (Welf. & Inst. Code, § 15610.57, subd. (b).)

For heightened remedies under EADACPA, “a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care).) “[W]hen the medical care of an elder is at issue, ‘the statutory definition of “neglect” speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405 (Carter), quoting Covenant Care, supra, 32 Cal.4th at p. 783.)

“To obtain the remedies provided by [EADACPA] pursuant to 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.’ [Citation.] 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.’ Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88–89, quoting Delaney v. Baker (1999) 20 Cal.4th 23, 31 (Delaney).)

Discussion

In this case, PVHMC argues Kelly Chu failed to sufficiently allege egregious abuse or neglect. Pursuant to the EADACPA, “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.’” (Covenant Care, supra, 32 Cal.4th at p. 783, quoting Delaney, supra, 20 Cal.4th at p. 34.) In other words, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Ibid.)

In Kruthanooch v. Glendale Adventist Medical Center (2022) 83 Cal.App.5th 1109 (Kruthanooch), while undergoing an MRI at a hospital, an elder patient received second degree burns after the hospital’s staff failed to remove an EKG patch that had been placed on the elder patient’s chest. (Id., at p. 1116-1118.) The court held the hospital’s failure to properly screen the elder patient before taking the MRI did not constitute neglect because the harm occurred while they were undertaking medical services. (Id., at p. 1134-1135.) And in Carter, a hospital’s failure to administer antibiotics and stock a crash cart with the correct endotracheal tubes did not constitute neglect where the hospital’s staff were actively providing treatment and instead suggested professional negligence. (Id., at p. 408.)

Here, Kelly Chu alleges the pressure injury was caused by the failure to routinely inspect the skin beneath the medical device, the failure to regularly reposition Kelly Chu, the failure to ensure the medical device was the appropriate size, and the failure to ensure enough nursing staff were available for patient safety. (SAC, ¶ 31.) But Kelly Chu also alleges the nursing staff continuously applied the sequential compression device as ordered from April 28 to April 30. (SAC, ¶ 20.) Based on these alleged facts, Kelly Chu’s pressure injury was not caused by PVHMC’s failure to provide care. Rather, it appears the pressure injury was caused by allegedly negligent use of the sequential compression device.

In opposition, Kelly Chu argues PVHMC neglected Kelly Chu by withholding care through failing to monitor Kelly Chu’s skin condition after utilizing the sequential compression device. But the failure to monitor Kelly Chu’s skin condition was not the withholding of medical care. Rather, as alleged, it was a failure to properly undertake the medical services provided which does not qualify as neglect. Kelly Chu also argues this case is distinguishable from Kruthanooch and Carter because those cases involved an immediate injury. The court finds this distinction of no effect.

As noted in Covenant Care, neglect is determined by “the failure to provide medical care” and not the provision of medical services. (Covenant Care, supra, 32 Cal.4th at p. 783.) While PVHMC’s staff may have neglected their duty of care in failing to monitor the sequential compression device, the fact that they might have neglected their duty of care in providing medical treatment to Kelly Chu removes this case from the statutory definition of neglect pursuant to the EADACPA.

Accordingly, PVHMC’s demurrer to this cause of action is SUSTAINED without leave to amend. Furthermore, because PVHMC’s motion to strike seeks to strike attorney fees and punitive damages requested pursuant to the EADACPA, it is GRANTED for the same reasons described above.

CONCLUSION

Based on the foregoing, PVHMC’s demurrer to the SAC is SUSTAINED without leave to amend.

Based on the analysis regarding the demurrer, PVHMC’s motion to strike is GRANTED.