Judge: Theodore R. Howard, Case: 22-1239846, Date: 2022-08-18 Tentative Ruling

The demurrer by defendant Medlink Medical Transport, Inc. (“defendant”) to the First Amended Complaint (“FAC”) by plaintiffs John Wilson, Shyann Wilson and Charles Wilson (together “plaintiffs”) is SUSTAINED with 20 days leave to amend.

This action arises out of the death of plaintiff’s decedent, Linda Wilson, who sustained fatal injuries as a result of a motor vehicle collision occurring on 4/28/2020. (FAC ¶¶11-12) At the time, decedent was a passenger in a non-emergency medical transport van owned and operated by defendant Medlink. (Id.)

Plaintiffs allege that the decedent was ejected from her wheelchair in the motor vehicle collision because Medlink failed to properly restrain her during transport. (FAC ¶12). 

They further allege that Defendants maintained a policy and practice of failing to compensate its employees for all hours worked, requiring employees to inspect equipment and supplies used to transport patients, including plaintiff, before commencing their paid work shifts. (FAC ¶24) Defendants mandated that drivers perform safety checks before clocking in to be paid. (FAC ¶27)

To increase profits and lower costs at the expense of safety, Medlink’s managing agents implemented a policy and practice of limited training and hiring unqualified or underpaid employees to cut costs. (FAC ¶28)

Defendants knew or should have known that its driver was unsuitable for the position and negligently hired, trained, supervised and/or entrusted its drivers to operate the transport vehicles. (FAC ¶29)

Based on these allegations, plaintiffs seek enhanced remedies under the Elder Abuse Act.

The FAC pleads that defendants “neglected” plaintiff as that term is defined in in the Elder Abuse Act. (FAC ¶39) Defendant argues that the FAC fails to plead sufficient facts to show such neglect.  This contention has merit.

As stated in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 123-124:

“The Elder Abuse Act's goal was to provide heightened remedies for “acts of egregious abuse” against elder and dependent adults, while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence (citation omitted).”

When medical care of an elder is at issue, neglect means the failure to provide medical care. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405). It may include “egregious withholding of medical care for physical and mental health needs”. (Id. at p. 405 citing Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 786).

Elder Abuse does not apply to simple or even gross negligence by health care providers (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88). 

“The plaintiff must prove ‘by clear and convincing evidence’ that ‘the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of’ the neglect. (Welf. & Inst. Code, § 15657.) Oppression, fraud and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious' wrongdoing of a ‘despicable’ or ‘injurious' nature.” (Carter, supra 198 Cal.App.4th at p. 405)

The plaintiff must allege and prove by clear and convincing evidence facts which establish that the defendant (1) had responsibility for meeting the basic needs of an elder or dependent adult; (2) knew of conditions that made the elder or dependent adult unable to provide for her own basic needs, and (3) denied or withheld goods or services necessary to meet those needs either with knowledge that injury was substantially certain to occur or with conscious disregard of the high probability of such injury. (Id. at p. 406-407) “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.” (Id. at p. 407)

Assuming, without deciding, that the FAC satisfactorily pleads the first two elements, as they are not raised by the demurring party, the FAC still fails to allege with particularity the facts needed to establish “neglect” within the Elder Abuse Act.

Plaintiffs allege that the decedent was ejected from her wheelchair in the motor vehicle collision because Medlink failed to properly restrain her during transport. (FAC ¶12). “The safety restraint was loose…” (FAC ¶14). These allegations establish poor restraint but not total failure to restrain, the latter of which would be required to establish a complete withholding of care, in order to plead an Elder/Dependent Adult Abuse claim. Failing to properly restrain the decedent in her wheelchair during transport is negligence.  It is not egregious abuse, akin to leaving an elder lying in their feces, failing to give them needed medicine, hydration or food, or similar types of conduct which have been found to support an Elder Abuse Claim. (See Carter, supra 198 Cal.App.4th at p. 405)

The FAC is also lacking the necessary facts to establish the causal link between the alleged neglect and the decedent’s injury. (Id. at p. 406-407) The FAC does not factually demonstrate how the policy of failing to compensate employees for all hours worked or mandating the drivers perform safety checks before clocking in to be paid caused the decedent’s death.

For these reasons, Medlink’s demurrer is SUSTAINED with 20 days leave to amend.

Medlink is to give Notice of Ruling.