Case Number: BC683046 Hearing Date: July 27, 2018 Dept: A

Palm v Chandler Convalescent Hospital

DEMURRER; MOTION TO STRIKE

Calendar: 6

Case No: BC683046

Hearing Date: 7/27/18

Action Filed: 11/9/17

Trial: 5/13/19

MP: Defendant Rodolfo Protacio, M.D.

RP: Plaintiff Sarimah Palm, an individual and successor in interest to Rosa Mohammed

PLEADINGS:

Plaintiff Sarimah Palm (“Plaintiff”), an individual and as successor in interest to Rosa Mohammed (“Decedent”), is the daughter of Decedent. Plaintiff alleges that between January 2016 and January 2017, Decedent was an elderly woman who resided at the nursing facility known as Defendant Chandler Convalescent Hospital (“Chandler”). Plaintiff alleges that Chandler and its agents/employees, Defendants Charles Levin, Rodolfo Protacio, M.D., and Samvel Hmayakyan, M.D., had a legal obligation to treat and assess Decedent. Plaintiff alleges that each of the Defendants were negligent and failed to provide Decedent with her medical and physical needs, including failing to prevent and protect against formation of pressure ulcers and deep tissue injuries. Plaintiff alleges this ultimately resulted in Decedent’s death on February 25, 2017.

The second amended complaint (“SAC”), filed May 29, 2018, alleges causes of action for: (1) elder abuse; and (2) wrongful death.

RELIEF REQUESTED:

Dr. Protacio demurs to the 1st cause of action for elder abuse, and moves to strike portions of the SAC.

DISCUSSION:

Demurrer to the 1st cause of action for elder abuse

Pursuant to Welfare & Institutions Code, §15610.27, an “elder” is any person residing in California that is 65 year of age or older. Abuse of an elder means: “(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” or “(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, §15610.07.) “Neglect” includes the negligent failure of any person having the care or custody of an elder to exercise the degree of care that a reasonable person in like position would exercise, including the failure to provide medical care or protect from health and safety hazards. (Id., §15610.57(a)-(b).) The statutory definition of “neglect” does not speak to the undertaking of medical services, but the failure to provide medical care. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 404.)

A plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder or dependent adult. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.) The plaintiff must prove by clear and convincing evidence that defendant was guilty of recklessness, oppression, fraud or malice in the commission of the neglect, which applies essentially the equivalent standard to support punitive damages. (Id.; Welf. & Inst. Code, §15657.) The enhanced remedies are available only for acts of egregious abuse against elders or dependent adults. (Carter, supra, 198 Cal.App.4th at 405.) “‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as ‘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. (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Unlike negligence, recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. (Id. at 31.)

There are several factors that must be pled with particularity, including: (1) defendants had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) defendants knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (3) defendants 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); and (4) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter, supra, 198 Cal.App.4th at 406-07.)

For a healthcare provider, the Elder Abuse Act does not apply “unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult’s relationship with the defendant—not the defendant’s professional standing—that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act.” (Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148, 152.) The Supreme Court in Winn stated that in order to find “neglect” under the Elder Abuse Act, there must be the existence of a caretaking or custodial relationship—“that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs [i.e., nutrition, hydration, and medication] that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Id. at 158, 161.)

In the 1st cause of action, Plaintiff alleges that Decedent was an elder at the relevant time and that Chandler and its staff had a legal obligation to care for Decedent’s needs during her residence at Chandler. (SAC, ¶¶16-17.) Decedent was a resident at Chandler from May 18, 2006 to January 28, 2017. (Id., ¶7.) Dr. Protacio is alleged to be the medical director at Chandler and was the primary physician of Decedent during her residence at Chandler. (SAC, ¶9.) The SAC also alleges that Dr. Protacio had a substantial caretaking relationship with Decedent involving ongoing responsibility for her basic needs, and that he had the responsibility of implementing residential care policies, coordinating with Chandler’s medical care, and overseeing nursing care. (Id.)

Plaintiff alleges that Dr. Protacio failed to undertake certain actions with regard to Decedent while she was at Chandler and under his care. She alleges:

Dr. Protacio failed to ensure Decedent was monitored by a Speech Language Pathologist for eating and swallowing/reflux precautions, which resulted in her developing severe malnutrition and dehydration. (SAC, ¶¶19, 26.)

Dr. Protacio failed to accurately assess Decedent’s condition after ordering blood drawn and did not change her diabetes medication upon higher than average glucose levels. (Id., ¶20.)

Dr. Protacio falsely noted that Decedent’s diabetes was fairly controlled and ordered more fluid intake, but failed to ensure that his orders were implemented. (Id., ¶22.)

Dr. Protacio failed to conduct a urine culture to confirm an infection until a day after seeing Decedent. (Id., ¶24.)

Dr. Protacio failed to accurately assess her condition of possible lung infiltrate and to order additional antibiotics. (Id., ¶27.)

Dr. Protacio ordered a referral of Decedent to an endocrinologist due to poor glucose control, but the referral was cancelled without explanation. (Id., ¶28.)

Dr. Protacio ordered medication for depression for Decedent, but failed to assess her reason for depression. (Id., ¶29.)

Dr. Protacio ordered a repeat video barium swallow evaluation, but he failed to ensure his orders were being followed. (Id., ¶30.)

The allegations against Dr. Protacio fail to allege that he denied or withheld goods or services necessary to meet Decedent’s basic needs. Based on the allegations by Plaintiff, Dr. Protacio did in fact provide medical care and services to Decedent over the course of her stay at Chandler. To the extent that Dr. Protacio failed to correctly diagnose or monitor Decedent’s infections and diabetes as he was undertaking medical services may amount to a claim for professional negligence/medical malpractice, but does not constitute or rise to the level of elder abuse. The Court of Appeal’s findings in Carter supports this finding:

As to the third and final hospital admission, plaintiffs allege that Grant died because the Hospital did not administer the antibiotics Grant needed to treat his pneumonia and did not have the proper size endotracheal tube in the crash cart, despite “false records” to the contrary. Plaintiffs also allege, however, that during this hospitalization, “bags containing fluids [were] being injected into [Grant],” and after “personnel treating [Grant] … could not locate a common size endo-tracheal tube in the crash cart,” they began “a search for an appropriate tube elsewhere in the hospital.” These allegations indicate the Hospital did not deny services to or withhold treatment from Grant—on the contrary, the staff actively undertook to provide treatment intended to save his life. Although the failure to infuse the proper antibiotics and the failure to locate the proper size endotracheal tube in time to save Grant’s life might constitute professional negligence (see, e.g., Nelson v. State of California (1982) 139 Cal.App.3d 72, 81, 188 Cal.Rptr. 479 (Nelson ) [failure of medical practitioner to provide necessary medication or treatment is malpractice] ), absent specific factual allegations indicating at least recklessness (i.e., a conscious or deliberate disregard of a high probability of injury), neither failure constitutes abuse or neglect within the meaning of the Elder Abuse Act (see Welf. & Inst.Code, § 15657.2 [elder abuse is distinct from professional negligence of health care provider]; Covenant Care, supra, 32 Cal.4th at p. 786, 11 Cal.Rptr.3d 222, 86 P.3d 290 [elder abuse includes “egregious withholding of medical care”]; Delaney, supra, 20 Cal.4th at p. 35, 82 Cal.Rptr.2d 610, 971 P.2d 986 [Elder Abuse Act only applies to neglect by health care provider that is at least reckless]; Sababin, supra, 144 Cal.App.4th at p. 88, 50 Cal.Rptr.3d 266 [Elder Abuse Act does not apply to simple or gross negligence by health care provider] ).

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 408 [emphasis added].)

Here, the allegations also do not allege recklessness on the part of Dr. Protacio, such that the heightened remedies under the Elder Abuse Act should be imposed against Dr. Protacio. In particular, there are no allegations supported by specific facts showing that Dr. Protacio had deliberate disregard of the high degree of probability that an injury would occur and that it rose to such a level of conscious choice with knowledge of the serious danger to Decedent. As such, the allegations against Dr. Protacio, at most, amount to professional negligence for rendering medical services to Decedent.

For the reasons above, the Court will sustain the demurrer to the 1st cause of action. As Plaintiff has had the opportunity to amend the pleading following the Court’s ruling on the demurrer to the first amended complaint, the Court will only allow leave to amend the elder abuse cause of action upon a showing by Plaintiff at the hearing that this cause of action can be amended to allege an elder abuse cause of action against Dr. Protacio.

Motion to Strike

Dr. Protacio moves to strike portions of the allegations of the 1st cause of action and the prayer for relief with regard to the 1st cause of action.

In light of the ruling on the demurrer, the Court will take the motion to strike off calendar as moot.

RULING:

Sustain the demurrer to the 1st cause of action. The Court will only allow leave to amend the elder abuse cause of action upon a showing by Plaintiff at the hearing that this cause of action can be amended to allege an elder abuse cause of action against Dr. Protacio.

Take the motion to strike off calendar as moot, in light of the ruling on the demurrer.