Case Number: BC706970 Hearing Date: May 15, 2019 Dept: 47

Willie James White, et al. v. Providence Health System – Southern California dba Providence Holy Cross Medical

Center, et al.

(1) DEMURRER TO SECOND AMENDED COMPLAINT;

(2) MOTION TO STRIKE

MOVING PARTY: Defendant Santa Teresita Medical Center, Inc.

RESPONDING PARTY(S): Plaintiff Willie James White by and through his successor-in-interest, Cynthia White and Cynthia White, individually

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges Elder Abuse, Violation of Residents Rights and wrongful death rising out of decedent’s inpatient stay at Defendants’ 24-hour health facility.

Defendant Santa Teresita Medical Center, Inc. demurs to the second amended complaint and moves to strike portions thereof.

TENTATIVE RULING:

Defendant Santa Teresita Medical Center’s demurrer to the second amended complaint is OVERRULED as to the first and second causes of action. The motion to strike is DENIED in its entirety.

Defendant is ordered to answer the second amended within 20 days.

DISCUSSION:

Defendant Santa Teresita Medical Center, Inc.’s Demurrer

Meet and Confer

The Declaration of Christopher Washington reflects that opposing counsel did not respond to meet and confer efforts, which satisfies CCP § 430.41(a)(3)(B).

Analysis

Although Plaintiff’s opposition is untimely, the Court exercises its discretion to consider the merits of the opposition.

1. First Cause of Action (Elder Abuse).

Demurring Defendant Santa Teresita Medical Center is alleged to be a licensed 24-hour skilled nursing facility. 2AC ¶ 11. Defendant attempts to introduce extrinsic facts that Defendant’s facility is a non-profit organization and thus there is no benefit to be obtained from reduced labor costs. Such an argument is neither here nor there, not only because extrinsic evidence cannot be considered on demurrer (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747), but also because such argument does not defeat this cause of action. “A demurrer must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119.

“[S]tatutory causes of action must be pleaded with particularity.” Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

From the statutes and cases discussed above, we distill several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) 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 (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney, supra, 20 Cal.4th at p. 34); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin, supra, 144 Cal.App.4th at pp. 85, 90; Benun, supra, 123 Cal.App.4th at p. 116; Mack, supra, 80 Cal.App.4th at pp. 972–973); 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) (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b), 15657; Covenant Care, supra, 32 Cal.4th at pp. 783, 786; Delaney, at pp. 31–32). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst. Code, §§ 15610.07, subds. (a), (b), 15657; Perlin, supra, 163 Cal.App.4th at p. 664; Berkley, supra, 152 Cal.App.4th at p. 529.) Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims. (Covenant Care, at p. 790.)

Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07 (bold emphasis and underlining added).

The 2AC alleges that Santa Teresita created a skin integrity care plan which indicated that Santa Teresita nursing staff would inspect decedent White’s skin at least two times daily for redness or breakdown and report to a physician for further treatment orders in the event of any skin breakdown issues. ¶¶ 31 – 34. Additionally, White’s care plan required Santa Teresita employees to reposition White at least every two-hours to prevent skin breakdown. ¶ 35. Thus, Plaintiff alleges that Defendant Santa Teresita specifically knew of White’s skin care needs, including twice-daily inspections and two hour repositioning. Defendant’s staff allegedly failed to inspect White’s skin for breakdowns on December 1, 3, 5, 15, 16, 18, 18, 19 and 25 as required by his care plan. ¶¶ 36 – 29. Moreover, repositioning records show that White was repositioned sporadically. ¶ 40. The implication is that reposition did not occur every two hours. Ultimately, on December 26, 2016, a Santa Teresita nurse assessed White as having a Stage II pressure injury to his sacral area, and about a month later, White was transferred to Arcadia Methodist Hospital for acute care. ¶¶ 41, 42. Plaintiff alleges that as a result of the above failures, White developed a Stage II pressure injury to his coccyx which progressed to Stage IV, and as a result, White suffered extreme pain and suffering and an untimely death. ¶ 43.

The foregoing allegations are sufficient to plead “neglect” as that term is defined in Welfare and Institutions Code § 15610.57 to include the following:

(a) “Neglect” means either of the following:

(1) The 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.

(2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise.

(b) 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. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.

(3) Failure to protect from health and safety hazards.

(4) Failure to prevent malnutrition or dehydration.

(5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.

(Bold emphasis added.)

Moreover, as noted above, Santa Teresita created a skin integrity care plan which indicated that Santa Teresita nursing staff would inspect decedent White’s skin at least two times daily for redness or breakdown and report to a physician for further treatment orders in the event of any skin breakdown issues. The failure to follow that plan is sufficient to plead that Defendant knew injury was substantially certain to befall White or a conscious disregard of the high probability of such injury, and the neglect caused White harm, pain and suffering. Carter, supra, 198 Cal.App.4th at 406-07.

¶ 44 alleges that, as a result of deliberate understaffing at Santa Teresita by its managing agents Sister Mary Clare and Sister Marie Suzanne, Defendant’s nursing staff failed to reposition White at least every two hours and inspect his skin twice a shift as required by his care plan. ¶ 68 alleges that this was a violation of 22 CCR § 72515(b), 72329 and 42 CFR § 482.30. This understaffing and lack of training was allegedly designed as a mechanism to reduce labor costs and predictably resulted in the abuse and neglect of residents, and specifically, White. Id.

Worsham’s determination that understaffing constitutes no more than negligence may be true, absent further allegations showing recklessness. But the Fenimores have alleged more than a simple understaffing here. The FAC identified the staffing regulation the Hospital allegedly violated and suggested a knowing pattern of violating it constituted recklessness. A jury may see knowingly flouting staffing regulations as part of a pattern and practice to cut costs, thereby endangering the facility’s elderly and dependent patients, as qualitatively different than simple negligence.

In addition, while Worsham focused on a “‘fundamental “[f]ailure to provide medical care”’” as the way to show neglect under the Act, that is not the only way to prove neglect. (Worsham, supra, 226 Cal.App.4th at p. 338, quoting Delaney, supra, 20 Cal.4th at p. 34.) The Act defines neglect generally as the negligent failure of custodians or care providers to exercise the degree of care a similarly situated reasonable person would exercise, and then provides examples of neglect, including but not limited to the “[f]ailure [*1351] to provide medical care for physical and mental health needs.” (§ 15610.57, subds. (a), (b)(2).) As Norman and Gregory teach, violations of standards of care set by health facility regulations may provide a basis for finding the requisite negligent failure. Reckless understaffing might be neglectful under the Act even if it is not a fundamental failure to provide medical care.

Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1351 (bold emphasis added).

The above allegations are sufficient to state a cause of action for violation of the Elder Abuse Act for purposes of demurrer.

“The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff’s possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.

The demurrer to the first cause of action is OVERRULED.

2. Second Cause of Action (Violation of Resident’s Rights—Health and Safety Code § 1430(b).

Defendant’s argument—already presented once on a prior demurrer—that the claim is moot because Defendant tendered a check to Plaintiff in the amount of $500 in accordance with the remedy available under Health and Safety Code § 1430(b) violates the fundamental rule that extrinsic evidence cannot be considered on demurrer. Hahn, supra, 147 Cal.App.4th at 747. It’s time to remove this argument from the firm’s boilerplate law and motion databank.

The second cause of action incorporates by reference the above allegations pertaining to the first cause of action. ¶ 85.

¶ 85.d alleges that, by not providing sufficient staff in quantity and quality, Santa Teresita violated 22 CCR § 72527(a)(25), which incorporates by reference the rights enumerated in Health and Safety Code § 1599.1(a), which mandates that the “facility shall employ an adequate number of qualified personnel to carry out all of the functions of the facility.”

¶ 85.e alleges that, by not providing White with sufficient hygiene care to prevent the development of pressure injuries, Santa Teresita violated 22 CCR § 72527(a)(25), which incorporates by reference the rights enumerated in Health and Safety Code § 1599.1(b), which mandates that “each resident shall show evidence of good personal hygiene, and be given are to prevent bedsores.”

¶ 85.h alleges that, by failing to prevent White from developing pressure injuries, Santa Teresita violated 22 CCR § 72315, which mandates that a skilled nursing facility provide each patient with care to prevent formation and progression of decubiti, contractures and deformities, including changing position with preventative skin care and carrying out of physician’s orders for treatment of decubitus injuries.

The demurrer to the second cause of action is OVERRULED.

Defendant Santa Teresita Medical Center, Inc. Motion To Strike

Although Plaintiff’s opposition is untimely, the Court exercises its discretion to consider the merits of the opposition.

Meet and Confer

The Declaration of Christopher Washington reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

Welfare and Institutions Code § 15657 provides:

Where 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:

(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.

(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

(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.

The Elder Abuse Act does not apply to simple or gross negligence by health care providers. (Delaney v. Baker, supra, 20 Cal.4th at pp. 28–29, fn. 2 (Delaney); Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 785.) To obtain the enhanced remedies of section 15657, “a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct.” (Delaney, supra, 20 Cal.4th at p. 31.) “‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur [citations]. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action … with knowledge of the serious danger to others involved in it.’ [Citation.]” (Id. at pp. 31–32.)

In reviewing the act’s provisions on reckless conduct and professional negligence (§§ 15657, 15657.2), the Delaney court concluded that “‘reckless neglect’ under section 15657 is distinct from causes of action ‘based on … professional negligence’ within the meaning of section 15657.2 … .” (Delaney, supra, 20 Cal.4th at p. 31.) The court held, “a health care provider which engages in the ‘reckless neglect’ of an elder adult within the meaning of section 15657 will be subject to section 15657’s heightened remedies … .” (Id. at p. 27.)

Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336-337.

Covina contends that under Covenant Care, a care facility cannot be held liable for dependent abuse unless there is a total absence of care. We disagree. If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference.

Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89-90.

It is apparent to this Court that the moving party simply confuses the rules of pleading versus the rules of proof. For the reasons discussed above re: the demurrer, the 2AC sufficiently pleads facts constituting reckless neglect, i.e., repeated withholding of care as a result of choice or deliberate indifference to the high degree of probability of injury. Whether the Plaintiff actually proves these allegations remains to be seen.

Hence, Plaintiff has pled facts sufficient to support the heightened remedies set forth in Welfare and Institutions Code § 15657. Likewise, despicable conduct carried on with a willful and conscious disregard of White’s rights are sufficiently pled (malice—Civil Code § 3294(c)(1).) ¶ 44 alleges that, as a result of deliberate understaffing at Santa Teresita by its managing agents Sister Mary Clare and Sister Marie Suzanne, nursing staff failed to reposition White at least every two hours and to inspect his skin twice a shift as required by his care plan. If proven, deliberate understaffing, knowing this would lead to the failure to examine and reposition patients, could be found to be “malice,” (e.g., wanton or “deliberate disregard”) as defined by law.

The motion to strike Page 17:27, ¶ 1 (general damages); Page 18:2-3, ¶ 3 (attorneys fees and costs pursuant to Welfare and Institutions Code § 15657(a)); Page 18:4-5, ¶ 4 (punitive damages); and Page 18:6-7, ¶ 5 (punitive damages) is DENIED.

Defendant Santa Teresita Medical Center, Inc. is ordered to answer the second amended complaint within 20 days.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 15, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court