Josephine Costa vs. Savaseniorcare, Inc.
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Murray, Tara

Defendant SSC Carmichael Operating Company, LP dba Carmichael Healthcare Center’s Demurrer to the Complaint is ruled on as follows:

Defendant’s Request for Judicial Notice is granted.

Plaintiffs allege claims for elder abuse, Violation of Patient Rights, Wrongful Death, Survivorship, and Negligent Infliction of Emotional Distress arising out of the death of Lorraine Beckman. Plaintiffs allege that after a five day stay in defendant’s facility, decedent was taken to Kaiser emergency where the nursing staff reported suspected elder abuse.

Defendant does not challenge the elder abuse claim but challenges the other claims arising from the same facts. Defendant contends that the claims for Violation of Patient Rights, Wrongful Death, Survivorship and Negligent Infliction of Emotional Distress (“NIED”) are barred by the one year statute of limitations under MICRA.

Defendant also contends that the statutory cause of action is one seeking a penalty, and that the NIED claim is barred since decedent’s niece, Michele Costa, is not entitled to bring such claim.

2nd cause of action Violation of Patient Rights

: Overruled. Health & Safety Code §1430(b) provides for an award of attorneys’ fees against “the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation.” The Patient Bill of Rights section relied on (Health & Safety Code section 1430(b)) provides for “civil damages” not penalties. Therefore, the statute of limitations is three years.

3rd cause of action Wrongful Death

: Overruled. The negligence alleged is custodial neglect, not medical malpractice. The statute of limitations under MICRA does not apply. Benun v Superior Court (2004) 123 Cal.App.4th 113; See Delaney v Baker (1999) 20 Cal.4th 23, 31-35; Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 783.

4th cause of action Survivorship

: Overruled. The negligence alleged is custodial neglect, not medical malpractice. The statute of limitations under MICRA does not apply. Benun v Superior Court (2004) 123 Cal.App.4th 113; See Delaney v Baker (1999) 20 Cal.4th 23, 31-35; Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 783.

5th cause of action Negligent Infliction of Emotional Distress

: Sustained without
leave to amend for failure to state facts sufficient to constitute a cause of action. The plaintiffs have not opposed the demurrer to this cause of action, which is a concession to the merits. Defendant contends that the niece has no standing to bring such claim, as a plaintiff must generally be a relative residing in the same household, parent, sibling, child, or grandparent. To recover for emotional distress, a bystander/relative must be present at the scene of the injury-producing event when it occurs and be contemporaneously aware it was causing injury. Thing v La Chusa (1998) 48 Cal.3d 644, 660-662. In the case of Morton v Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926, the court recognized that actions against health care providers are “matters peculiarly within the knowledge of experts.” Id. at 935. In that case, the family members witnessed their mother deteriorating after her operation and alleged they knew it was caused by the doctor’s negligence, but the court held that these allegations were insufficient Moreover, the nature of the alleged neglect, here being “inadequate staffing”, is not the type of negligence that is an event that is capable of being perceived contemporaneously as causing injury. See Bird v Saenz (2002) 28 Cal.4th 910.

Answer to remaining counts to be filed and served no later than February 18, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.