Judge Thomas D. Long, Case 21STCV08837 2022-10-20 Tentative Ruling

On May 26, 2022, Plaintiffs Audelia Velasquez and Lena Velasquez-Carreras (collectively, “Plaintiffs”) filed a first amended complaint (“FAC”) against Defendants Montebello Care Center, LLC dba Montebello Care Center (“Montebello Care Center”); Genesis Healthcare, LLC; Genesis Healthcare, Inc.; Genesis Administrative Services, LLC; Summit Care, LLC; NewGen, LLC; and NewGen Operations Management, LLC (collectively, “Defendants”) arising from Ms. Velasquez’s death following being in Defendants’ care. Plaintiffs also named David Velasquez as a nominal defendant.

The FAC alleges (1) elder abuse/neglect; (2) negligence; (3) violation of Health & Safety Code section 1430, subdivision (b); (4) willful misconduct; and (5) wrongful death. Plaintiffs later dismissed the fourth cause of action.

On July 18, 2022, Defendants filed a motion for summary adjudication of the first and fifth causes of action.

On August 4, 2022, Plaintiffs filed a motion to compel further responses to their Request for Production of Documents, Set One.

Plaintiffs improperly inserted some evidentiary objections in their response to the Undisputed Material Facts, appearing to raise grounds such as hearsay that were not properly raised in the separate evidentiary objections. (See, e.g., UMF 6-7 [“Defendants’ medical expert has failed to cite to the competent evidence or admissible hearsay evidence for which their expert relies upon to make such an opinion.”].)

Ms. Velasquez resided at her home and had a caregiver who provided companionship and assisted with activities of daily living. (Undisputed Material Facts “UMF” 5.) On March 1, 2020, Ms. Velasquez was again admitted to Beverly Hospital over concerns of a rash. (UMF 8.) She was diagnosed with a urinary tract infection and shingles, and she was discharged to her home. (UMF 10.) On March 5, 2020, Ms. Velasquez returned to Beverly Hospital due to difficulty swallowing. (UMF 11.) Her differential diagnosis included but was not limited to dehydration/acute renal failure, colitis/gastroenteritis, sepsis, and recurrent/resistant UTI. (UMF 12; Response to UMF 12.) Her past medical history included hypertension, dementia, chronic kidney disease III, hypercholesterolemia, and degenerative arthritis. (UMF 13; Response to UMF 13.) A skin assessment was performed, and it was noted that Ms. Velasquez had shingles to her left thigh, back, and lower abdomen, as well as bilateral deep tissue injuries on her outer foot, heel, and buttock. (UMF 15-16.) The deep tissue injuries were black in appearance and were not hospital-acquired. (UMF 17.)

On March 8, 2020, Khalid Nur, M.D., discussed Ms. Velasquez’s discharge options with her daughter. (UMF 21.) Beverly Hospital records indicate that Ms. Velasquez’s daughter agreed to skilled nursing placement. (UMF 22.) Montebello Care Center was selected due to its proximity in relation to the family home. (UMF 23.) The Patient Transfer and Referral Record for Ms. Velasquez’s discharge from Beverly Hospital to Montebello Care Center notes she was confined to bed, needed assistance with activities of daily living, was awake, was confused, and had bilateral outer feet deep tissue injuries, bilateral heels deep tissue injuries, bilateral buttock deep tissue injuries, shingles to her lower back and left thigh, bruising to her bilateral legs and arms, and a small bruise on her face. (UMF 26.)

On March 8, 2020, Ms. Velasquez began her residency at Montebello Care Center. (UMF 27, 78.) The Admissions Record at Montebello Care Center notes Ms. Velasquez had the following co-morbidities: zoster [shingles] w/o complications, abnormalities of gait and mobility, muscle weakness (generalized), other lack of coordination, abnormal posture, dysphagia oropharyngeal phase, hypotension, dehydration, acute kidney failure, unspecified dementia without behavior disturbance, essential hypertension, UTI, malignant neoplasm of heart, pure hypercholesterolemia, unspecified osteoarthritis, chronic kidney disease stage 3, generalized anxiety disorder, constipation, unspecified protein-calorie malnutrition, unspecified glaucoma, gastro-esophageal reflux disease without esophagitis, pruritus, and altered mental status. (UMF 29.) An initial skin check was performed by Nester Mariano, RN. (UMF 30.) Nurse Mariano charted that Ms. Velasquez was suffering from bilateral sacral deep tissue injuries measuring 3x3x0 cm on the right, and 5x5x0 cm on the left, bilateral heel fluid blisters measuring 3x3x+1 cm on the left, and 4x4x+1 cm on the right, as well as scattered bilateral upper extremity discoloration, and shingles to the suprapubic area, left groin, lower back, and left lower extremity. (UMF 31; see UMF 68, 91; Additional Material Facts “AMF” 104.)

On March 9, 2020, an additional skin check was performed by Heidi Sharp, RN. (UMF 32.) This skin check noted multiple bruises to Ms. Velasquez’s bilateral upper extremities, deep tissue injury to the sacrococcyx, bilateral deep tissue injuries to the heels, and shingles sites to the lower back, buttocks, abdomen/pelvis, and bilateral lower extremities. (UMF 33.) It was also noted that Ms. Velasquez was cognitively impaired, incontinent to bowel, and had a UTI in the last 30 days. (UMF 34.) Ms. Velasquez was placed in isolation due to her shingles. (UMF 35.)

Also on March 9, 2020, a VOHRA wound consult was ordered. (UMF 36.) Charting indicates that the first wound consult occurred on March 26, 2020 with Wojtek Dajnowicz, M.D. (UMF 37.) On March 12, 2020, Ms. Velasquez’s initial nutritional assessment noted that she was underweight at 90.4 pounds and was not eating adequately to meet her nutritional needs, and a liquid protein supplement was recommended to promote wound healing. (UMF 38-39.) From this nutritional assessment, it was also noted that there would be weight fluctuation due to ongoing IV hydration. (UMF 40.)

Plans of care were put into place during the first four days of Ms. Velasquez’s residency including: dependent for mobility related to dementia and pressure sore on sacrococcyx; shingles; risk of falls; impaired swallowing; assistance with ADLS; skin breakdown to sacral area; skin breakdown to right heel; risk of aspiration; discharge planning; vision impairment regarding glaucoma; risk for GI symptoms; risk for cardio symptoms or complications related to diagnosis of hypertension; alterations in comfort related to chronic pain; risk of limited engagement related to dementia; nutritional risk; and depression. (UMF 41.) While at Montebello Care Center, Ms. Velasquez was to be turned and repositioned every two hours. (UMF 79; AMF 105-106.)

On March 26, 2020, wound care physician Dr. Dajnowicz assessed Ms. Velasquez’s wounds to her sacrococcyx and bilateral heels and performed surgical debridement. (UMF 42.) Ms. Velasquez had a noted weight loss trend since her admission, and it was charted on April 20, 2020, that Ms. Velasquez was refusing meals. (UMF 43.) On April 30, 2020, it was noted that “Per [Dr. Nur] Root cause of the weight loss was advanced age, comorbidities, and recent psychosocial changes accompanied by Depression attributed to the loss of her husband.” (UMF 44.)

On March 30, 2020, Dr. Nur ordered a Foley catheter for Ms. Velasquez for wound care management to divert urine away from her stage 4 pressure ulcer. (AMF 121-122.) The Foley catheter placed her at a high risk for developing UTIs. (AMF 123.)

On May 1, 2020, Ms. Velasquez was noted as having a weight loss of 7.4 pounds over the past 30 days. (UMF 46.) Her sacrococcyx wound was reclassified to stage 4 and measured 3 x 2.8 x 0.5 cm, with no more tunneling, with moderate serosanguineous drainage, 80% granulation and 20% slough. (UMF 47; Response to UMF 47.)

Ms. Velasquez’s discharge plan was discussed and it was decided that she would discharge home again on hospice once her UTI was treated. (UMF 49.) On May 6, 2020, Dr. Nur indicated that because Ms. Velasquez did not exhibit a fever and that her urine culture was normal, there was no need to have her on antibiotics for the UTI. (UMF 50.) Following this update, Haven Health Hospice evaluated Ms. Velasquez for hospice placement. (UMF 51.)

On May 13, 2020, Ms. Velasquez weighed 83.8 pounds and was discharged home with Haven Health Hospice providing her further care. (UMF 52-53.) Upon arrival home, Ms. Velasquez was cared for primarily by her daughter and her caregiver. (UMF 54.) A hospice nurse visited Ms. Velasquez weekly. (UMF 55.) Haven Health progress notes indicate that the primary purpose of these visits was to perform wound care and to maintain oxygen therapy, as well as assistance for her activities of daily living including ambulation, continence, transfer, dressing, feeding, hygiene, bathing, and providing treatment for Ms. Velasquez’s foley catheter. (UMF 56; Response to UMF 56.)

After being discharged from Montebello Care Center to her home on May 13, 2020 , Ms. Velasquez developed recurring UTI’s as a result of chronic use of the indwelling Foley catheter. (UMF 124, 135.) Between May 13, 2020 and up to her death on October 2, 2020, Ms. Velasquez contracted at least five UTIs. (AMF 126.) After the last diagnosed UTI, her body was so consumed with the infection that her blood pressure began to drop. (AMF 133.)

Ms. Velasquez was 96 years old at her death on October 2, 2020. (UMF 1.) According to her death certificate, her causes of death were cardiac arrest, respiratory failure, and senile dementia. (UMF 61.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

The elements of wrongful death are (1) a wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of another person. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 390.) The wrongful death alleged here is premised on medical malpractice. In any medical malpractice action, the plaintiff must establish (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. (Tortorella v. Castro (2006) 140 Cal. App. 4th 1, 4, fn. 2.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.3d 977, 984-985.)

An expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.) “‘Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ [Citation.]” (Ibid.) The expert declaration must also contain a “reasoned explanation” and not just conclusions. (Id. at p. 782.) Although a plaintiff “‘is entitled to all favorable inferences that may be reasonably derived from [an expert’s] declaration’ [citation], and the ‘rule [is] that . . . we liberally construe the declarations for the plaintiff’s experts’ . . . these principles in no way eliminate the need for some form of ‘reasoned explanation,’ and it remains the case that any inferences must ‘reasonably be derived from’ the declaration.” (Ibid.)

Defendant submitted the declaration of Sonja Rosen, M.D., F.A.C.P., A.G.S.F., who is board-certified by the American Board of Internal Medicine in Internal Medicine, Geriatric Medicine, and Hospice and Palliative Care Medicine. (Rosen Decl. ¶ 1.) She is familiar with the standard of care as it existed in 2020 and currently in Southern California for the management of residents and medical conditions such as those presented by Ms. Velasquez. (Id. at ¶ 5.) Dr. Rosen reviewed Ms. Velasquez’s medical records, her death certificate, and Plaintiffs’ FAC. (Id. at ¶ 2.)

Based on her review of the medical records, as well as her knowledge, training, and experience, it is Dr. Rosen’s opinion that the care and treatment rendered to Ms. Velasquez by Defendants complied with the standard of care in the community. (Rosen Decl. ¶ 5.) According to Dr. Rosen, Ms. Velasquez was admitted to Montebello Care Center with pre-existing deep tissue injuries to her sacrococcyx and bilateral heels, and the sacrococcyx injury did not worsen. (Id. at ¶¶ 7, 11.) Because Ms. Velasquez entered the facility with what were likely stage 4 ulcers, the wounds were not the result of Defendants’ staff’s failure to turn and reposition her. (Id. at ¶ 13.)

Defendants have met their initial burden of showing, by expert medical opinion, that they did not breach the standard of care. The burden shifts to Plaintiffs to show, by contrary expert opinion, that a triable issue of fact exists.

Plaintiffs submit the declaration of Michael Bain, M.D., who has extensive experience in wound care and experience in long-term nursing care. (Bain Decl. ¶¶ 2-4.) Based on his education, training, and experience, he is familiar with the diagnosis, care, and management of patients presenting with similar problems to those of Ms. Velasquez. (Id. at ¶ 5.) He is also familiar with the standards of care in the community for the evaluation and treatment of physical conditions presented by Ms. Velasquez as well as the standards of care in skilled nursing facilities with respect to wound care management. (Ibid.) He reviewed Ms. Velasquez’s medical records and the deposition transcripts of Nestor Mariano, and Khalid Nur, M.D. (Id. at ¶ 6.)

Based on his education, training, experience, and review of the records, it is his medical opinion that Defendants not only breached the standard of care but also acted in conscious and deliberate disregard for Ms. Velasquez’s health and well-being by repeatedly not following their care plan to turn and reposition her at least every two hours to prevent the worsening of her pressure ulcer and to follow physician’s order for a wound consult. (Id. at ¶ 7.) To a reasonable degree of medical probability, Ms. Velasquez died from sepsis from a urinary tract infection she developed as a result of her chronic indwelling Foley catheter, and the Foley catheter was necessitated by her Stage 4 coccyx pressure ulcer for wound care management to divert urine away from the pressure ulcer. (Id. at ¶ 8.)

Defendants breached the standard of care in failing to schedule the ordered wound consult within one week, and they breached the standard of care in failing to notify her attending physician of the delay. (Id. at ¶ 14; see id. at ¶¶ 12-13.) This prevented Ms. Velasquez from receiving proper wound care treatment for her pressure ulcer. (Id. at ¶ 14.) Had she received a wound consult earlier, more likely than not, the deep tissue injury would not have progressed to a Stage 4 (full-thickness skin loss with tissue necrosis down to the bone), and there is no documentation that Dr. Nur was notified of the progression of the pressure ulcer. (Id. at ¶¶ 14-15.) Defendants breached the standard of care in not assessing the coccyx pressure injury at all between March 8, 2020 and March 26, 2020, which more likely than not caused it to become a Stage 4 on March 26, 2020 when the pressure injury was debrided. (Id. at ¶ 16.)

To a reasonable degree of medical probability, Ms. Velasquez’s deep tissue injury went from skin intact to Stage 4 as a result of Defendants’ not offloading pressure from her sacral area at least every two hours from March 8, 2020 to March 26, 2020 and not having her seen by a wound care specialist sooner than March 26, 2020 who would have ordered the appropriate wound care treatment to prevent the pressure ulcer from progressing. (Id. at ¶ 19.) Even after Ms. Velasquez was diagnosed with a Stage 4 pressure ulcer on her coccyx, Defendant continued to ignore her care plan and not reposition her for days at a time, for the entire period between April 2 to April 14, 2020. (Id. at ¶ 20.)

To a reasonable degree of medical probability, at the time of her death, Ms. Velasquez had a urinary tract infection from the chronic indwelling Foley catheter, which caused her blood pressure to drop until there was cessation of life on October 2, 2020. (Id. at ¶ 25.) To a reasonable degree of medical probability, Ms. Velasquez died from a urinary tract infection from the Foley catheter that was necessary for wound care management of her Stage 4 pressure injury. (Ibid.)

Plaintiff has presented conflicting expert evidence. Additionally, Plaintiffs have presented other evidence that conflicts with the factual findings of Defendants’ expert and the basis for her opinions. For example, it is disputed whether Ms. Velasquez was on hospice care before entering Defendants’ care and whether Ms. Velasquez in fact “had already been deemed to have a very limited life expectancy.” (Carreras Depo. at pp. 21-22; Rosen Decl. ¶ 6.)

To establish a claim for elder abuse, the plaintiff must show “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 [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; 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) [citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.) “The plaintiff must also allege . . . that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.” (Id. at p. 407.) There must be an allegation of authorization or ratification on the part of a managing agent in order to recover damages for dependent adult abuse against corporate defendants. (Civ. Code, § 3294; Welf. & Inst. Code, § 15657(c).) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169.)

“‘[N]eglect’ within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from ‘professional negligence.’” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.) “As used in the [Elder Adult and Dependent Adult Civil Protection] 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.’” (Ibid.) To distinguish dependent adult abuse from professional negligence, there must be a showing of recklessness, fraud, malice, or oppression. (Ibid.) There must be “more than simple or even gross negligence in the provider’s care or custody of the elder.” (Carter, supra, 198 Cal.App.4th at p. 405.) “[T]he enhanced remedies are available only for ‘ “acts of egregious abuse”.’ [Citation.]” (Ibid.) “In short, ‘[i]n order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.’ [Citation.]” (Ibid.)

Defendants again rely on the declaration of Dr. Rosen. (Motion at pp. 11-12.) Based on her review of the medical records and her knowledge, training, and experience, there is no evidence that Ms. Velasquez was physically neglected, abused, abandoned, or isolated. (Rosen Decl. ¶ 14.) No act or omission could be characterized as elder abuse, and several mandatory reporters did not report any elder abuse. (Rosen Decl. ¶ 14.) But as discussed with the fifth cause of action, Plaintiffs have submitted a competent expert declaration that disputes Dr. Rosen’s opinions. (See Bain Decl.)

Defendants also submit the declaration of Joan Oppus, R.N., the current director of nursing. (Motion at p. 12.) According to Nurse Oppus, the intervention/task of turning and repositioning was not initiated in the electronic record system until March 29, 2020. (Oppus Decl. ¶ 4.) As a result of the initiation date of turning and repositioning in the electronic record system, when the electronic ADL Flowsheet record was printed, the electronic record system populated the intervention/task of turning and repositioning with “X”s from the date of admission through the date of initiation. (Oppus Decl. ¶ 5; see Laughlin Decl., Ex. A at p. 1108.) Therefore, Nurse Oppus explains that the “X”s do not indicate that the intervention/task of turning and repositioning did not occur from March 8, 2020 through March 29, 2020. (Oppus Decl. ¶¶ 6-7.) But this evidence also does not show that Ms. Velasquez was indeed turned and repositioned according to the care plan.

Plaintiffs also submit evidence creating a triable issue of fact regarding the accuracy of the ADL Flowsheet. Nurse Mariano, the RN Supervisor, testified that turning and repositioning at least every two hours by a staff member should have been included on Ms. Velasquez’s care plan, but he did not see it on the initial care plan. (Mariano Depo at pp. 9, 54-55.) The care plan for turning and repositioning was initiated on March 9, 2020, but there was no revision until May 28, 2020, after Ms. Velasquez had been discharged. (Mariano Depo. at pp. 57-58.) Nurse Mariano agreed that “per the policy, it should have been updated after 72 hours to inform the staff on the frequency on how often to turn and reposition,” and he would expect turning and repositioning to be documented every two hours. (Mariano Depo. at pp. 58-59.) Nurse Mariano’s understanding of the ADL Flowsheet between March 8 and March 28 was that the staff did not follow the care plan regarding turning and repositioning. (Mariano Depo. at pp. 64-65.)

There are also no “Y” records indicating the turning and repositioning of Ms. Velasquez between April 3, 2020 and April 13, 2020, with many other two-hour periods left blank during other days that month. (Laughlin Decl., Ex. A at p. 1127.)

Furthermore, Dr. Nur testified that with proper care and repositioning, Ms. Velazquez’s wound should not have gotten worse, and the seventeen-day delay in providing a consult with a wound care specialist was, more likely than not, a direct cause of the deep tissue injury becoming stage 4. (Nur Depo. at pp. 17-24.)

Therefore, there are triable issues of fact regarding elder abuse. (See Delaney v. Baker (1999) 20 Cal.4th 23, 27, 41 [finding neglect when an elderly resident died with Stage III and Stage IV pressure ulcers, and the defendants “failed, over an extended period of time, to attend to her advanced bedsores”]; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90 [finding that a significant pattern of failing to follow a care plan—i.e., a repeated withholding of care—may constitute recklessness].)

Defendants also argue that they are not liable for the acts of an employee unless the standards applicable to the imposition of punitive damages are met, and “there is no evidence demonstrating that an officer, director, or managing agent of moving defendants employed any employee who allegedly abused Audelia Velasquez, knowing in advance that the employee was likely to commit the acts and employed him or her with conscious disregard of the rights and safety of others, or actually authorized or ratified the employee’s acts.” (Motion at pp. 12-13; see Civ. Code, § 3294; Welf. & Inst. Code, § 15657(c).) But “a defendant moving for summary judgment [must] present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, footnote omitted.) Defendants must therefore “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) Defendants have not done so regarding ratification.

On January 19, 2022, Plaintiff served Request for Production of Documents, Set One on Montebello Care Center. On February 23, 2022, Montebello Care Center served written responses and objections. After meeting and conferring, the parties participated in an informal discovery conference on July 7, 2022.

A party may move to compel a further response to a demand for production of documents if the demanding party deems that the statement of compliance with the demand is incomplete; the representation of inability to comply is inadequate, incomplete, or evasive; or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)

RFP Nos. 98-101 seek production of the quality assurance and performance improvement (“QAPI”) for the facility from June 1, 2019 through May 31, 2020 relating to pressure ulcers/injuries, turning and repositioning residents, weight loss/variance, and urinary tract infections. RFP Nos. 102-105 seek the Clinical Outcome Reports (“CORs”) for the same. The RFPs provide that “[t]he portion(s) of the responsive documents which contain personal identification information of a resident other than Plaintiff, Audelia Velasquez may be redacted.”

Montebello Care Center argues that the QAPI and CORs are privileged under Evidence Code section 1157 because they are used in the quality improvement process that includes peer review. (See Mier Decl. ¶¶ 2-3.)

“Neither the proceedings nor the records of . . . a peer review body, as defined in section 805 of the Business and Professions Code, having the responsibility of evaluation and improvement of the quality of care rendered . . . shall be subject to discovery.” (Evid. Code, § 1157, subd. (a).) “The medical staff immunity described in section 1157 extends to, first, the proceedings, and second, the records of the described staff committees. It does not embrace the files of the hospital administration (as distinguished from staff).” (Matchett v. Superior Court (1974) 40 Cal.App.3d 623, 628.)

“Section 1157 ‘applies only to records of and proceedings before medical investigative committees.’ [Citaation.] Information developed or obtained by hospital administrators or others which does not derive from an investigation into the quality of care or the evaluation thereof by a medical staff committee, and which does not disclose the investigative and evaluative activities of such a committee, is not rendered immune from discovery under section 1157 merely because it is later placed in the possession of a medical staff committee or made known to committee members; and this may be so even if the information in question may be relevant in a general way to the investigative and evaluative functions of the committee.” (Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal.App.3d 711, 724.)

Accordingly, these records are not protected from disclosure merely because they are used in the quality improvement process that includes peer review.

Additionally, on June 1, 2022, Montebello Care Center served supplemental responses to RFP Nos. 89-97 and produced the CORs for the months of February 2020 and March 2020. (Flint Decl. ¶ 7 & Ex. 4.) This further undermines Montebello Care Center’s privilege objections to RFP Nos. 102-105 for the CORs for June 1, 2019 through May 31, 2020.

For the QAPI records sought via RFP Nos. 98-101, Montebello Care Center claims another privilege under federal regulations.

Plaintiffs acknowledge that disclosure of QAPI records may not be ordered “except in so far as such disclosure is related to the compliance of such committee with the requirements of this section.” (See 42 C.F.R., § 483.75, subd. (h).) But Plaintiffs argue that “such information (QAPI) may be disclosed when it is related to the compliance of such committee to ensure quality of care and quality of life for all of the Facility’s residents.” The Court interprets the disclosure exception differently. Section 483.75 requires long-term care facilities to “develop, implement, and maintain an effective, comprehensive, data-driven QAPI program that focuses on indicators of the outcomes of care and quality of life,” maintain documentation and demonstrate evidence of a compliant QAPI program, and present the QAPI plan to the State Survey Agency. (42 C.F.R. § 483.75, subd. (a).) Plaintiffs are not inquiring into whether Montebello Care Center complied with its duty to maintain a QAPI program. Rather, they intend to use the documents and information to establish a theory of ratification. (Motion at pp. 7-8.)

Similarly, “[a] nursing facility must maintain a quality assessment and assurance committee . . . which (i) meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and (ii) develops and implements appropriate plans of action to correct identified quality deficiencies.” (42 U.S.C. § 1396r, subd. (b)(1)(B).) The disclosure of the committee’s records may not be ordered “except insofar as such disclosure is related to the compliance of such committee with the requirements of this subparagraph.” (Ibid.) Plaintiffs’ request is not related to Montebello Care Center’s compliance with maintaining a quality assessment and assurance committee under this regulation.

Because disclosure of the QAPI records is statutorily prohibited, the motion is denied for RFP Nos. 98-101.

The motion is GRANTED for RFP Nos. 102-105 seeking the Clinical Outcome Reports. Montebello Care Center is ordered to produce these records within five days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court