Judge Stephen P. Pfahler, Case Number: 23CHCV00933, Date: 2023-10-17 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23CHCV00933, Date: 2023-10-17 Tentative Ruling

Case Number: 23CHCV00933 Hearing Date: October 17, 2023 Dept: F49

Dept. F-49

Date: 10-17-23

Case #23CHCV00933

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendants, KF Rinaldi Inc., et al.

RESPONDING PARTY: Plaintiffs, Arnold Stover, et al.

RELIEF REQUESTED

Demurrer to the Complaint

· 1^st Cause of Action: Elder Abuse

· 2^nd Cause of Action: Violation of Patients’ Bill of Rights

Motion to Strike

· Allegations in support of, and claim for, punitive damages

· Claims for $500/Violation Fine

· Claims for Attorney Fees

· Claim for Injunctive Relief

· Claim for Costs and Interest

SUMMARY OF ACTION

On June 17, 2022, 98-year old Arnold Stover was admitted to third party Northridge Hospital for a urinary tract infection. Arnold previously resided in an assisted living facility from May 8, 2018.

On June 20, 2022, Arnold was transferred to facilities operated by defendants KF Rinaldi Inc., dba Rinaldi Convalescent Hospital and Cambridge Healthcare Servcies, LLC, for completion of “intravenous antibiotic therapy.” During the period of residency at the facility, Arnold developed pressure sores, which eventually caused or contributed to his death on August 1, 2022.

On March 30, 2023, plaintiffs Arnold Stover and Mark Stover filed a complaint for Elder Abuse & Neglect, Violation of Patients’ Bill of Rights Pursuant to California Health and Safety Code section 1430(B), Negligence, and Wrongful Death.

RULING

Demurrer: Overruled

Defendants KF Rinaldi Inc., dba Rinaldi Convalescent Hospital and Cambridge Healthcare Servcies, LLC filed a demurrer on grounds that the complaint insufficiently articulates elder abuse with sufficient factual particularity. Plaintiff in opposition maintains all challenged causes of action are properly pled. Defendants in reply reiterates the factual challenges to the individual causes of action.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

1^st Cause of Action: Elder Abuse

Defendants contend Plaintiffs insufficiently articulate facts supporting elder abuse based on the actual provision of care and treatment, and merely constitutes a list of conditions without sufficient establishment of causation. Plaintiffs cite to the operative allegations of the complaint, including the failure to deliver sufficient treatment of the pressure sores as a proper basis for elder abuse due to neglect.

Neglect is specifically defined as follows:

(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. 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).)

“As used in the [Elder Abuse] 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.’ [Citation.] Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32, Cal.4th771, 783.)

“[N]eglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from ‘professional negligence’ in section 15657.2: “neglect” as defined in former section 15610.57 and used in section 15657 does not refer to the performance of medical services in a manner inferior to ‘“the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing”’ (citation), 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 v. Baker (1999) 20 Cal.4th 23, 34.)

The demurrer questions the allegations of the complaint regarding a link between the care and treatment provided to the alleged multiple falls occurring during Plaintiff’s residency. Plaintiffs counter that Defendants were aware of the fall risks as instructed by the treating physician, and such concerns were therefore part of the care plan. Understaffing led to less attention provided to Plaintiff, thereby allowing the falls to occur.

The complaint alleges Arnold’s admission to the facility for custodial care in order to complete antibiotic therapy with the intention of returning to the prior assisted living facility. [Comp., ¶¶ 15, 36, 57.] Nothing in the complaint alleges any provision of medical services for such things as rehabilitation or recovery, thereby rendering the action as one exclusive to negligence recovery. (See Worsham v. O’Connor Hospital (2014) 226 Cal.App.4^th 332, 337-338; Fenimore v. Regents of the University of California (2016) 245 Cal.App.4^th 1339, 1348-1351.) While Arnold presented with multiple comorbidities as a 98-year old, the complaint specifically and categorically documents the development of pressure sores while a resident. [Comp., ¶¶ 16-26.]

The court finds the complaint sufficiently alleges elder abuse based on the failure to sufficiently address Plaintiff’s risk for pressure sores, earlier recognition of said sores, and arranging for medical care at an earlier time. Said neglect caused or exacerbated by alleged understaffing. [Comp., ¶¶ 58-60, 62, 70.] (Welf. & Inst. Code, § 15610.57, subd. (b)(2); Fenimore v. Regents of the University of California, supra, 245 Cal.App.4^th at p. 1350.) The court declines to qualitatively consider extrinsic circumstances regarding the death of Arnold, and instead allows the parties to conduct discovery into potential factual defenses based on causation.

2^nd Cause of Action: Violation of Patients’ Bill of Rights

Defendant contends the subject cause of action also lacks sufficient articulation. Plaintiff maintains the regulatory violation is properly pled.

(b)(1) A current or former resident or patient, or the legal representative, personal representative, or successor in interest of 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 Section 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees.

(A) For violations that occurred prior to March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) and for costs and attorney's fees, and may be enjoined from permitting the violation or violations to continue.

(B) For violations that occur on or after March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney's fees, and may be enjoined from permitting the violation or violations to continue.

(C) An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive that resident's or patient's rights to sue pursuant to this subdivision is void as contrary to public policy.

(2) In assessing the amount of the statutory damages to be awarded under this subdivision, the following factors shall be considered:

(A) The nature and seriousness of each violation.

(B) The likelihood and severity of the risk that each violation would cause a resident to suffer indignity, discomfort, or pain.

Health & Saf. Code, § 1430

(a) Patients have the rights enumerated in this section and the facility shall ensure that these rights are not violated. The facility shall establish and implement written policies and procedures which include these rights and shall make a copy of these policies available to the patient and to any representative of the patient. The policies shall be accessible to the public upon request. Patients shall have the right:

(1) To be fully informed, as evidenced by the patient's written acknowledgement prior to or at the time of admission and during stay, of these rights and of all rules and regulations governing patient conduct.

(2) To be fully informed, prior to or at the time of admission and during stay, of services available in the facility and of related charges, including any charges for services not covered by the facility's basic per diem rate or not covered under Titles XVIII or XIX of the Social Security Act.

(3) To be fully informed by a physician of his or her total health status and to be afforded the opportunity to participate on an immediate and ongoing basis in the total plan of care including the identification of medical, nursing and psychosocial needs and the planning of related services.

(4) To consent to or to refuse any treatment or procedure or participation in experimental research.

(5) To receive all information that is material to an individual patient's decision concerning whether to accept or refuse any proposed treatment or procedure. The disclosure of material information for administration of psychotherapeutic drugs or physical restraints or the prolonged use of a device that may lead to the inability to regain use of a normal bodily function shall include the disclosure of information listed in Section 72528(b).

(6) To be transferred or discharged only for medical reasons, or the patient's welfare or that of other patients or for nonpayment for his or her stay and to be given reasonable advance notice to ensure orderly transfer or discharge. Such actions shall be documented in the patient's health record.

(7) To be encouraged and assisted throughout the period of stay to exercise rights as a patient and as a citizen, and to this end to voice grievances and recommend changes in policies and services to facility staff and/or outside representatives of the patient's choice, free from restraint, interference, coercion, discrimination or reprisal.

(8) To be free from discrimination based on sex, race, color, religion, ancestry, national origin, sexual orientation, disability, medical condition, marital status, or registered domestic partner status.

(9) To manage personal financial affairs, or to be given at least a quarterly accounting of financial transactions made on the patient's behalf should the facility accept written delegation of this responsibility subject to the provisions of Section 72529.

(10) To be free from mental and physical abuse.

(11) To be assured confidential treatment of financial and health records and to approve or refuse their release, except as authorized by law.

(12) To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care of personal needs.

(13) Not to be required to perform services for the facility that are not included for therapeutic purposes in the patient's plan of care.

(14) To associate and communicate privately with persons of the patient's choice, and to send and receive personal mail unopened.

(15) To meet with others and participate in activities of social, religious and community groups.

(16) To retain and use personal clothing and possessions as space permits, unless to do so would infringe upon the health, safety or rights of the patient or other patients.

(17) If married or registered as a domestic partner, to be assured privacy for visits by the patient's spouse or registered domestic partner and if both are patients in the facility, to be permitted to share a room.

(18) To have daily visiting hours established.

(19) To have visits from members of the clergy at any time at the request of the patient or the patient's representative.

(20) To have visits from persons of the patient's choosing at any time if the patient is critically ill, unless medically contraindicated.

(21) To be allowed privacy for visits with family, friends, clergy, social workers or for professional or business purposes.

(22) To have reasonable access to telephones and to make and receive confidential calls.

(23) To be free from any requirement to purchase drugs or rent or purchase medical supplies or equipment from any particular source in accordance with the provisions of Section 1320 of the Health and Safety Code.

(24) To be free from psychotherapeutic drugs and physical restraints used for the purpose of patient discipline or staff convenience and to be free from psychotherapeutic drugs used as a chemical restraint as defined in Section 72018, except in an emergency which threatens to bring immediate injury to the patient or others. If a chemical restraint is administered during an emergency, such medication shall be only that which is required to treat the emergency condition and shall be provided in ways that are least restrictive of the personal liberty of the patient and used only for a specified and limited period of time.

(25) Other rights as specified in Health and Safety Code, Section 1599.1.

(26) Other rights as specified in Welfare and Institutions Code, Sections 5325 and 5325.1, for persons admitted for psychiatric evaluations or treatment.

(27) Other rights as specified in Welfare and Institutions Code Sections 4502, 4503 and 4505 for patients who are developmentally disabled as defined in Section 4512 of the Welfare and Institutions Code.

(b) A patient's rights, as set forth above, may only be denied or limited if such denial or limitation is otherwise authorized by law. Reasons for denial or limitation of such rights shall be documented in the patient's health record.

(c) If a patient lacks the ability to understand these rights and the nature and consequences of proposed treatment, the patient's representative shall have the rights specified in this section to the extent the right may devolve to another, unless the representative's authority is otherwise limited. The patient's incapacity shall be determined by a court in accordance with state law or by the patient's physician unless the physician's determination is disputed by the patient or patient's representative.

(d) Persons who may act as the patient's representative include a conservator, as authorized by Parts 3 and 4 of Division 4 of the Probate Code (commencing with Section 1800), a person designated as attorney in fact in the patient's valid Durable Power of Attorney for Health Care, patient's next of kin, other appropriate surrogate decisionmaker designated consistent with statutory and case law, a person appointed by a court authorizing treatment pursuant to Part 7 (commencing with Section 3200) of Division 4 of the Probate Code, or, if the patient is a minor, a person lawfully authorized to represent the minor.

(e) Patients' rights policies and procedures established under this section concerning consent, informed consent and refusal of treatments or procedures shall include, but not be limited to the following:

(1) How the facility will verify that informed consent was obtained or a treatment or procedure was refused pertaining to the administration of psychotherapeutic drugs or physical restraints or the prolonged use of a device that may lead to the inability of the patient to regain the use of a normal bodily function.

(2) How the facility, in consultation with the patient's physician, will identify consistent with current statutory case law, who may serve as a patient's representative when an incapacitated patient has no conservator or attorney in fact under a valid Durable Power of Attorney for Health Care.

Cal. Code Regs., tit. 22, § 72527

(1) To be fully informed, as evidenced by the patient's written acknowledgment prior to or at the time of admission and during stay, of these rights and of all rules and regulations governing patient conduct.

(2) To be fully informed, prior to or at the time of admission and during stay, of services available in the facility and of related charges, including any charges for services not covered by the facilities' basic per diem rate or not covered under Title XVIII or XIX of the Social Security Act.

(3) To be fully informed by a physician of his or her total health status and to be afforded the opportunity to participate on an immediate and ongoing basis in the total plan of care including the identification of medical, nursing, and psychosocial needs and the planning of related services.

(4) To consent to or to refuse any treatment or procedure or participation in experimental research.

(5) To receive all information that is material to an individual patient's decision concerning whether to accept or refuse any proposed treatment or procedure. The disclosure of material information for administration of psychotherapeutic drugs or physical restraints, or the prolonged use of a device that may lead to the inability to regain use of a normal bodily function shall include the disclosure of information listed in Section 73524(c).

(8) To manage personal financial affairs, or to be given at least a quarterly accounting of financial transactions made on the patient's behalf should the facility accept his or her written delegation of this responsibility subject to the provisions of Section 73557.

(9) To be free from mental and physical abuse.

(10) To be assured confidential treatment of financial and health records and to approve or refuse their release, except as authorized by law.

(11) To be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care for personal needs.

(12) To be free from discrimination based on sex, race, color, religion, ancestry, national origin, sexual orientation, disability, medical condition, marital status, or registered domestic partner status.

(13) Not to be required to perform services for the facility that are not included for therapeutic purposes in the patient's plan of care.

(14) To associate and communicate privately with persons of the patient's choice, and to send and receive his or her personal mail unopened.

(15) To meet with and participate in activities of social, religious and community groups at the patient's discretion.

(16) To retain and use his or her personal clothing and possessions as space permits, unless to do so would infringe upon the health, safety or rights of the patient or other patients.

(18) To have daily visiting hours established.

(19) To have visits from members of the clergy at the request of the patient or the patient's representative.

(20) To have visits from persons of the patient's choosing at any time if the patient is critically ill, unless medically contraindicated.

(21) To be allowed privacy for visits with family, friends, clergy, social workers or for professional or business purposes.

(22) To have reasonable access to telephones both to make and receive confidential calls.

(24) To be free from psychotherapeutic and/or physical restraints used for the purpose of patient discipline or staff convenience and to be free from psychotherapeutic drugs used as a chemical restraint as defined in Section 73012, except in an emergency which threatens to bring immediate injury to the patient or others. If a chemical restraint is administered during an emergency, such medication shall be only that which is required to treat the emergency condition and shall be provided in ways that are least restrictive of the personal liberty of the patient and used only for a specified and limited period of time.

(25) Other rights as specified in Health and Safety Code Section 1599.1.

(26) Other rights as specified in Welfare and Institutions Code Sections 5325 and 5325.1 for persons admitted for psychiatric evaluations or treatment.

(27) Other rights as specified in Welfare and Institutions Code, Sections 4502, 4503 and 4505 for patients who are developmentally disabled as defined in Section 4512 of the Welfare and Institutions Code.

(b) A patient's rights as set forth above may only be denied or limited if such denial or limitation is otherwise authorized by law. Reasons for denial or limitation of such rights shall be documented in the patient's health record.

(c) If a patient lacks the ability to understand these rights and the nature and consequences of proposed treatment, the patient's representative shall have the rights specified in this section to the extent the right may devolve to another, unless the representative's authority is otherwise limited. The patient's incapacity shall be determined by a court in accordance with state law or by the patient's licensed healthcare practitioner acting within the scope of his or her professional licensure unless the determination of the licensed healthcare practitioner acting within the scope of his or her professional licensure is disputed by the patient or patient's representative.

(d) Persons who may act as the patient's representative include a conservator, as authorized by Parts 3 and 4 of Division 4 of the Probate Code (commencing with Section 1800), a person designated as attorney in fact in the patient's valid Durable Power of Attorney for Health Care, patient's next of kin, other appropriate surrogate decisionmaker, designated consistent with statutory and case law, a person appointed by a court authorizing treatment pursuant to Part 7 (commencing with Section 3200) of Division 4 of the Probate Code, or, if the patient is a minor, informed consent must be obtained from a person lawfully authorized to represent the minor.

(1) How the facility will verify that informed consent was obtained pertaining to the administration of psychotherapeutic drugs or physical restraints or the prolonged use of a device that may lead to the inability of the patient to regain the use of a normal bodily function.

(2) How the facility, in consultation with the patient's licensed healthcare practitioner acting within the scope of his or her professional licensure, will identify, consistent with current statutory and case law, who may serve as a patient's representative when an incapacitated patient has no conservator or attorney in fact under a valid Durable Power of Attorney for Health Care.

Cal. Code Regs., tit. 22, § 73523

The court finds the complaint sufficiently articulates the claim based on understaffing thereby allowing the development and festering of the pressure sores. [Comp., ¶¶ 79.]

4^th Cause of Action: Willful Misconduct

Defendants submit the demurrer on grounds that Plaintiff fails to allege facts supporting willful misconduct. Plaintiff maintains the subject action is properly and independently alleged.

“Three essential elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1012.) Willful misconduct is subject to a heightened pleading standard in order to distinguish the claim for ordinary negligence. (Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1241 [“Where a party relies on willful misconduct there are sound reasons why he should be required to state facts more fully than in ordinary negligence cases so that it may be determined whether they constitute willful misconduct rather than negligence or gross negligence”].)

The complaint alleges both inadequate staffing levels, and the failure to follow the care plan regarding fall prevention. [Comp., ¶¶ 100-102.] Such conduct meets the criteria for willful misconduct.

The demurrer is overruled.

Motion to Strike: See Individual Items

Punitive Damages and Attorney Fees: DENIED
The complaint sufficiently articulates the elder abuse cause of action, and concurrently, the allegations in support of, and claim for, punitive damages, attorney fees, and general damages. (Welf. & Inst. Code, § 15657; Civ. Code, § 3294, subd. (b); (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576–577; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168.)

Defendants are ordered to answer the complaint within 10 days.

Case Management Conference set for March 8, 2024.

Defendants to give notice.