Judge: Sarah J. Heidel, Case: 19STCV33844, Date: 2024-05-07 Tentative Ruling

Case Number: 19STCV33844    Hearing Date: May 7, 2024    Dept: V

MOVING PARTIES: Defendant ALHAMBRA HOSPITAL MEDICAL CENTER (erroneously sued and served as ALHAMBRA HOSPITAL)

RESPONDING PARTY: Plaintiffs VICTOR TSAI, ALICE TSAI, ROSE TSAI

 The court considered the moving papers, Opposition and Reply. 

BACKGROUND

The Complaint was filed on September 20, 2019. 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 was treated at defendants’ health care facilities, and that defendants negligently cared for decedent while under defendants’ care. On May 23, 2018 decedent came from Hoag Hospital to defendant Alhambra Hospital Medical Center (AHMC) and was treated. On May 29, 2018, decedent was transferred from defendant AHMC to Sunny View Care Center. Decedent returned to defendant AHMC on June 5, 2018, was evaluated and transferred to defendant Pine Grove on June 18, 2018.

Plaintiffs filed a first amended complaint on August 19, 2021, a second amended complaint on November 24, 2021, a third amended complaint on June 23, 2023, and the fourth amended complaint (4AC) at issue on November 27, 2023. In the 4AC plaintiffs allege medical malpractice/wrongful death, medical malpractice/negligence, and elder abuse/neglect against defendants AHMC and Pine Grove Healthcare & Wellness Centre. Defendant AHMC (defendant) filed the demurrer on January 24, 2024. Plaintiffs filed the opposition on April 24, 2024. Defendant filed the reply on April 29, 2024.

LEGAL STANDARD

A party may object to a complaint or cross-complaint; the party may file a demurrer, an answer, or both. (Code of Civ. Proc., § 430.30.) The demurrer may be filed within 30 days after service of the complaint or cross-complaint unless extended by stipulation or court order. (Code of Civ. Proc. § 430.40(a).)

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

DISCUSSION

Defendant Alhambra Hospital demurs to the third cause of action for elder abuse/neglect on the grounds that the fourth amended complaint fails to state facts sufficient to constitute any cause of action for elder abuse.

A.      Meet and Confer

The parties must meet and confer in person, by telephone, or by video conference prior to any party filing a demurrer. (Code Civ. Proc., § 430.41(a).) Here, defendant has shown they made a good faith effort to meet and confer by contacting plaintiffs’ counsel by sending a detailed letter to start the meet and confer process by mail and email. (Decl. of Daniel K. Dik, ¶ 2.) Defendant’s counsel sent a follow up letter by email. Defendants’ counsel made calls numerous times but the parties were unable to meet. On January 24, 2024, the parties were able to meet and confer via telephone and cordially discuss the case. The parties were unable to come to an informal resolution. (Decl. of Daniel K. Dik, ¶ 2.) The court finds that the meet and confer requirement was satisfied.

B.      Plaintiffs did not allege sufficient facts to state a claim for elder abuse.

Plaintiffs allege that defendant failed to exercise reasonable care for decedent’s physical health needs pursuant to Welfare and Institutions Code § 15610.57(b)(2). (4AC ¶ 37.) Plaintiffs allege decedent was diagnosed with multiple serious medical conditions, including life[1]threatening liver conditions, requiring care and treatment but was not treated by appropriate specialists because Alhambra Hospital failed to provide consult with higher level facilities, specialist, or specialty medical services. (4AC ¶ 10, 14.) Instead, defendant chose to transfer decedent to a lower-acuity skilled nursing facility two times. (4AC ¶ 37.) Plaintiffs allege that the transfer of decedent to both of those facilities, Sunny View Care Center on or about May 29, 2018 and Pine Grove Healthcare & Wellness Centre, LP amounted to a refusal to provide medical care. (4AC ¶ 11, 15.) Plaintiffs further allege that defendant failed to obtain informed consent for the transfers (4AC ¶ 11, 15, 37.) Plaintiffs allege that defendant deprived plaintiffs of meaningfully deliberating further care options for decedent like specialists and that these acts  and omissions amount to a deliberate denial or withholding of medical care by defendant when it knew or should have known decedent required such care. (4AC ¶ 37.)

a.      Plaintiffs failed to allege facts showing defendant’s actions amounted to neglect under the Elder Abuse Act.

The court finds that plaintiffs did not make sufficient specific allegations against defendant to state a claim for elder abuse. The Elder Abuse Act does not apply to simple or gross negligence by health care providers. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336.) In Elaine Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, the court set out several factors to constitute neglect within the meaning of the Elder Abuse Act: plaintiff must allege sufficient facts with particularity that the defendant (1) was responsible for meeting the basic needs of the elder like nutrition, hydration, hygiene, or medical care; (2) knew that elder had conditions that made them unable to provide for their own basic needs; (3) and denied or withheld goods or services the elder needed to meet their basic needs, either knowing that injury was substantially certain or with conscious disregard of the high probability of such an injury. (Id. at 406-07.) Here, plaintiffs have not alleged sufficient facts showing that defendant’s provision of medical care amounted to anything beyond negligence because all they have alleged is that they disagreed with the discharge and transfer of the decedent, and therefore deprived her of medical care. These allegations do not show that defendant knew that injury was substantially certain or with conscious disregard of the high probability that decedent would be injured.

b.      Defendant is not liable for the conduct of other medical care facilities.

Plaintiffs alleged that the care provided by the nursing facilities to which decedent was transferred fell under the standard of care given her medical diagnoses. In Carter, the court held that the hospital was not liable for the misconduct of a different care facility. (Carter v. Prime Healthcare Paradise Valley LLC, supra, 198 Cal.App.4th at 410.) Similarly, plaintiffs cannot hold Defendant liable for the actions of the nursing facilities decedent was transferred to.

c.      Plaintiffs’ disagreements with defendant about medical treatment do not amount to elder abuse.

Plaintiffs alleged that decedent’s transfers were made without her consent or that of her family’s. In Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, the court 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." (Id. at 223.) Plaintiffs’ allegations are similar to those in Alexander because decedent’s family disagreed with the medical care their wife and mother was receiving, the transfers to Sunny View Care Center and Pine Grove, and therefore do not give rise to an elder abuse cause of action.

Plaintiffs argue that this case is different from Alexander because in that case the hospital had an “Appropriate Care Committee” designed to evaluate a patient’s further options, while defendant had no such committee and failed to refer decedent to specialists for further evaluation of her condition. Plaintiff argues that because defendant did not take any reasonable steps to evaluate decedent’s condition, that amounted to a deprivation of medical care. However, as the defendant argued in their reply, these allegations are a criticism of the level of medical care provided to decedent, not a failure to provide medical care.

C.     Leave to Amend

Plaintiffs have failed to cure the defects in the third amended complaint. A court should grant leave to amend if the plaintiff has not been given the opportunity to correct the defect and the deficiency can be easily corrected. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) Here, plaintiffs were already given the opportunity to correct the defects in the third amended complaint to allege with particularity sufficient facts for a cause of action for elder abuse against defendant and plaintiffs failed to do so. Therefore, the court finds that plaintiff cannot successfully amend their complaint to state a cause of action for elder abuse against defendant AHMC. Accordingly, plaintiffs do not have leave to amend, unless plaintiffs can demonstrate at the hearing that the cause of action can be successfully amended.

Based on the foregoing, the court SUSTAINS defendant’s demurrer as to the third cause of action in plaintiffs’ fourth amended complaint without leave to amend