2013-00151427-CU-PO
Jean Beardsley vs. Progressive Home Care
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Wells, Kim M.

Demurrer of Defendant Progressive Home Care to the 9th and 11th Counts of the
Plaintiffs’ First Amended Complaint is unopposed and is SUSTAINED without leave to
amend.

Plaintiff’s First Amended Complaint sets forth causes of action for elder abuse (W&I §
15600, et seq.), fraud – misrepresentation, fraud – constructive, fraud – concealment,
negligent infliction of emotional distress and wrongful death. Defendant Progressive is
named in counts 1, for elder abuse, 3 for fraud- misrepresentation, 4 for fraud-
constructive, 5 for fraud- concealment, 9 and 11 for negligent infliction of emotional
distress, by plaintiffs Nancy Haycock and Frank Beardsley and 13 for wrongful death.
Demurring defendants address only counts 9 and 11 against Defendant Progressive
Home Care for negligent infliction of emotional distress.

The FAC alleges that from September 8, 2012 to January 7, 2013, Progressive Home
Care provided skilled nursing services to Mrs. Beardsley, an 85 year old, suffering
from dementia and other underlying medical conditions, while she resided at Coast
Oak Villa.

According to Progressive Home Care’s own evaluation of Mrs. Beardsley, she did not
have any pressures ulcers on her body when Progressive Home Care began providing
skilled nursing services to Mrs. Beardsley. However, Progressive Home Care did
assess Mrs. Beardsley to be at risk for developing pressure ulcers. (FAC, para. 18)
While at Coast Oak Villa, Mrs. Beardsley developed a pressure ulcer, initially from her
bra strap, which was discovered by Progressive. Progressive is alleged to have treated
the wound by debridement, as it worsened. (FAC, paras. 19-28.) Plaintiff’s decedent is
alleged to have been in pain from the ulcer. She was taken to the hospital for
treatment, but returned to Coast Oak Villa as a hospice patient, where she died three
months after the pressure ulcer was discovered. (FAC, para. 29.)

Direct Victim

The California Supreme Court has long held that the negligent causing of emotional
distress is not an independent tort but the tort of negligence. Therefore the traditional
elements of duty, breach of duty, causation and damages apply. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588. Whether a
defendant owes a duty of care to a party is a question of law.
To establish duty in a direct victim negligent infliction of emotional distress case, duty
must be one that is imposed on the defendant as a matter of law, is assumed by the
defendant or arose out of a pre-existing relationship between the two. Marlene F.,
supra.

In a few cases, such as Burgess v. Superior Court (1992) 2 Cal.4th 1064, where the
California Supreme Court found that in the context of an injury that occurred during
child birth, the physician owed a duty to both the mother and the infant due to a
“special relationship” and they both could recover damages for negligent infliction of
emotional distress as direct victims.

Here, the duty of care, however, ran directly from Progressive to Jean Beardsley – not
to her daughter Nancy Haycock or her husband Frank Beardsley. There is no evidence
of a “special relationship” between Progressive and either of the plaintiffs, and
therefore no duty was owed by Progressive to
them.

The demurrer as to plaintiffs Nancy Haycock and Frank Beardsley as to negligent
infliction of emotional distress damages under a direct victim theory, for counts Nine
and Count Eleven is sustained.

Bystander

Although the court in the case of Ochoa v Superior Court (1985) 39 Cal.3d 159
awarded damages for negligent infliction of emotional distress to a mother who
witnessed neglect of defendants when they failed to provide immediate medical
attention to her son, that case has been expressly limited to its facts. In Thing v. La
Chusa (1989) 48 Cal.4th 644, the Califomia Supreme Court stated that emotional
distress damages in a bystander context can only be recovered if plaintiff is (1) closely
related to the injured victim: (2) present at the scene of the injury-producing event at
the time it occurs and is contemporaneously aware that it is causing injury to the
victim; and (3) as a result suffers emotional distress beyond that which would be
anticipated in a disinterested witness. Id. at 647.

Morton v. Thousand Oaks Surgical Hospital (2010) 187 Cal.App.4th 926 is analogous
to the facts in the instant case. In Morton, the plaintiffs’ daughters asserted an NIED
cause of action, claiming that they witnessed the deterioration of their mother’s health
“due to medical inattention, despite their continued pleas for assistance on her behalf”
Id. at 930. Their allegations that they were contemporaneously aware of their mother’s
suffering and physical decline over time, was held to be insufficient basis for a
bystander NIED claim.

Here, although the daughter and father witnessed plaintiffs’ decedent’s decline, the
allegations of suspected errors in the course of treatment cannot be the basis for a
bystander claim if they are not perceived at the time that they occur. Were the Court to
conclude that a claim for bystander NIED could proceed based upon such allegations,
“the circle of liability Thing sought to rein in would once again expand,” a consequence
the Morton court cautioned against. (Morton, supra 187 Cal.App.4th at 934.) “The
merely negligent actor does not owe a duty the law will recognize to make monetary amends to all persons who may have suffered emotional distress on viewing or
learning about the injurious consequences of his conduct.” (Thing, supra 48 Cal.3d at
668.)

The demurrer to the 9th and 11th counts is sustained without leave to amend.

Progressive shall file and serve its Answer to the remaining causes of action alleged
against it, not later than Thursday, April 17, 2014.

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