Maria Elena De La Cerda, et al. v. Joshua Quinones, M.D

Case Number: BC597771 Hearing Date: February 05, 2018 Dept: J

Re: Maria Elena De La Cerda, et al. v. Joshua Quinones, M.D., et al. (BC597771)

(1) MOTION FOR JUDGMENT ON THE PLEADINGS; (2) MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

Moving Parties: Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Joshua Quinones, M.D. and Christopher Warner, M.D.

Respondents: Plaintiffs Maria Elena De La Cerda and Jonathan De La Cerda

POS: (1) and (2) Moving OK; Opposing timely filed but not accompanied by proof of service

Plaintiffs allege that defendants’ failure to correctly diagnose and treat Rogelio De La Cerda resulted in his death. The complaint was filed 10/14/15. The First Amended Complaint was filed 1/6/16. On 9/22/16, plaintiffs dismissed their sixth cause of action against Citrus Valley Medical Center and Citrus Valley Health Partners, Inc. (collectively, “The Citrus Defendants”). On 7/21/17, this matter was transferred from Department 91 (personal injury hub) to this instant department.

On 9/13/17, the court elected to treat Defendants Kaiser Foundation Health Plan, Inc.’s, Kaiser Foundation Hospitals’, Southern California Permanente Medical Group’s (collectively, “The Kaiser Defendants”), Joshua Quinones, M.D.’s (“Quinones”) and Christopher Warner, M.D.’s (“Warner”) motion for summary adjudication as a motion for judgment on the pleadings and granted same, with leave to amend. On 9/21/17, plaintiffs filed their Second Amended Complaint against Quinones, Warner, The Kaiser Defendants, The Citrus Defendants and Does 1-50 for:

1. Professional Negligence

2. Wrongful Death

3. Loss of Consortium

4. Unauthorized Transfer for Nonmedical Reasons

5. Violation of the Emergency Medical Treatment Active Labor Act (EMTALA)

6. Elder Abuse

A Status Conference/Trial Setting Conference is set for 2/5/17.

(1) MOTION FOR JUDGMENT ON THE PLEADINGS:

Defendant Kaiser Foundation Health Plan, Inc. (“KFHP”) moves for judgment on the pleadings as to the entirety of Plaintiffs Maria Elena De La Cerda’s and Jonathan De La Cerda’s (“plaintiffs”) Second Amended Complaint (“SAC”), on the basis that it fails to state facts sufficient to constitute causes of action against it. Defendants Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Joshua Quinones, M.D. and Christopher Warner, M.D. move for judgment on the pleadings as to plaintiffs’ fifth cause of action for Elder Abuse (erroneously named as the sixth cause of action) in the SAC, on the basis that it fails to state facts sufficient to constitute a cause of action against them. The moving defendants contend that plaintiffs are suing KFHP even though the SAC acknowledges that decedent was not a member of KFHP. KFHP did not owe any duty to decedent, a non-member. As a health care service plan, KFHP was not charged with providing any care to decedent. A health plan may not be held vicariously liable for the acts of omissions of the medical providers with whom it contracts; as such, it cannot be liable to plaintiffs for any alleged act or omission in connection with decedent’s hospital care. Defendants also contend that plaintiffs’ elder abuse claim fails, as the conduct alleged is nothing more than medical negligence. Elder abuse requires specific pleading of acts which are reckless, oppressive, fraudulent and malicious and ratified by the defendant entities. This specificity is missing from the SAC.

At the outset, plaintiffs do not oppose the motion as it pertains to KFHP; as such, the motion is summarily granted as to KFHP without leave to amend.

The motion is also otherwise granted. “The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’ (Welf. & Inst. Code, § 15610.27). In particular, a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney fees and costs. (Id., § 15657, subd. (a)). On the same proof, a plaintiff who sues as the personal representative or successor in interest of a deceased elder is partially relieved of the limitation on damages imposed by Code of Civil Procedure section 377.34 and may recover damages for the decedent’s predeath pain and suffering. (Welf. & Inst. Code, § 15657, subd. (b)). Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.

“The Elder Abuse Act defines abuse as ‘[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering’ (Welf. & Inst. Code, § 15610.07, subd. (a); or ‘[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering’ (id., § 15610.07, subd. (b)). The Act defines neglect as ‘[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.’ (Id., § 15610.57, subd. (a)(1)). ‘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….(3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration.’ (Id., § 15610.57, subd. (b)). In short, neglect as a form of abuse under the Elder Abuse Act refers ‘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). Thus, when 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.’ (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783; see also id. at p. 786 [‘statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs’].).” Id. at 404-405.

“To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. (Welf. & Inst. Code, § 15657.2; Delaney, supra, 20 Cal.4th at p. 32; 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.’ (Delaney, at p. 31). Recklessness involves ‘”deliberate disregard” of the “high degree of probability” that an injury will occur’ and ‘rises to the level of a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.”’ (Id. at pp. 31-32). Thus, the enhanced remedies are available only for ‘”acts of egregious abuse” against elder and dependent adults.’ (Id. at p. 35; see also Covenant Care, supra, 32 Cal.4th at p. 786 [‘statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs’].) 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.’ (Covenant Care, at p. 789).” Id. at 405.

Plaintiffs have not pled with the requisite particularity any facts as to how Defendants KFH, SCPMG, Quinones and Warner (collectively, “defendants”) oppressively, fraudulently or maliciously caused harm to the decedent. In fact, plaintiffs have expressly alleged that “[t]he gravamen of this case is that DEFENDANTS negligently cared for Rogelio De La Cerda by failing to conduct the proper tests to make the correct diagnosis of a Cardiac Aortic Dissection (CAD), and to subsequently provide proper treatment.” (SAC, ¶ 18; emphasis added). Plaintiffs do not allege that defendants failed to provide medical care to the decedent; rather, they take issue with the manner in which the care was provided. There are no factual allegations, moreover, showing that any purported delay in diagnosis and proper treatment was more than professional medical negligence. Plaintiffs’ opposition makes reference to purported facts which are not set forth on the face of the SAC and are thus not considered.

Additionally, plaintiff has not included any facts pertaining to authorization or ratification on defendants’ part. Section 15657 states, in pertinent part, that “[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law…(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” CC § 3294(b), in turn, states in part that: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendants’ motion, then, is granted without present leave to amend. If, during discovery, counsel for plaintiffs learns additional facts that would support a cause of action for elder abuse, they may file a motion for leave to amend at that time.

(1) MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT:

Defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Joshua Quinones, M.D. and Christopher Warner, M.D. move, per CCP § 436, for an order striking the following language from Plaintiffs Maria Elena De La Cerda’s and Jonathan De La Cerda’s (“plaintiffs”) Second Amended Complaint (“SAC”):

1. Page 5, ll. 18-21, ¶ 23 (i.e., “[t]he medical records demonstrate evidence of intentional inactions that supports a claim for punitive damages predicated upon conscious disregard for the health and safety of Rogelio De La Cerda. PLAINTIFFS will make the proper motion for punitive damages for medical malpractice in accordance with the code”);

2. Page 13, ll. 23-25 and page 14, ll. 1-2, ¶ 83 (i.e., “[t]his failure to diagnose and treat based upon age and insurance constitutes reckless, oppression, and malice for the further injury and ultimate death of Rogelio De La Cerda. Thus, PLAINTIFFS are entitled to the enhanced remedies in Welf. & Inst. Code § 15610.63, including attorney fees according to proof at trial and punitive damages in an amount sufficient to punish DEFENDANTS according to proof at trial”); and

3. Page 14, ll. 17-18, ¶ 7 (i.e., “[f]or punitive damages in an amount sufficient to punish DEFENDANTS”).

Plaintiffs contend that this instant motion is untimely, inasmuch as it should have been filed concurrently with defendants’ answer to the SAC (filed 10/27/17). While technically correct, CCP § 436 enables a court to strike “any irrelevant, false, or improper matter inserted in any pleading” and/or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court” “at any time in its discretion.”

At the outset, the motion is moot as to Page 13, ll. 23-25 and page 14, ll. 1-2, ¶ 83, based on the above ruling. It is otherwise granted as to Page 5, ll. 18-21, ¶ 23 and Page 14, ll. 17-18, ¶ 7. Plaintiffs must make a CCP § 425.13 motion in order to seek punitive damages.

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