2011-00104589-CU-MM

Taja Allen vs. The Regents of the University of California

Nature of Proceeding: Motion for Summary Adjudication

Filed By: Zimmerman, Robert H.

Defendant The Regents of the University of California’s (“Defendant”) motion for
summary adjudication of plaintiff Taja Allen’s (“Plaintiff”) Second Cause of Action for
violation of the Elder Abuse and Dependant Adult Civil Protection Act (“Elder Abuse
Act”), Welfare and Institutions Code §§ 15600 et seq., is DENIED.

Defendant’s pending motion challenges Plaintiff’s Second Cause of Action for violation
of the Elder Abuse Act. The Elder Abuse Act is codified in Welfare and Institutions
Code §§ 15600 et seq. The stated purpose of the Act is “to protect a particularly
vulnerable portion of the population from gross mistreatment in the form of abuse and
custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) The Elder Abuse Act
affords heightened remedies to encourage private enforcement of the law, including
damages for pain and suffering, attorney’s fees and costs, and possible punitive
damages. In order to prove a violation of the Act, the plaintiff must prove that: (1) the
defendant has subjected an elder to physical abuse as defined by § 15610.63, neglect
as defined by § 15610.57, or financial abuse as defined by § 15610.30; and (2) the
defendant acted with recklessness, malice, oppression, or fraud in the commission of
the abuse. (Welf. & Inst. Code §15657.) The Act requires liability to be proven by a
heightened “clear and convincing evidence” standard. (Delaney, supra, 20 Cal.4th at
35; Covenant Care, Inc., v. Superior Court (2004) 32 Cal.4th 771, 788-89.)

The issues raised by a motion for summary adjudication are framed by the pleadings.
(Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 282; Lennar Northeast Partners v.
Buice (1996) 49 Cal.App.4th 1576, 1582.) Here, according to the operative pleading,
Plaintiff was allegedly injured in an auto accident and was hospitalized at Defendant’s facility. While Plaintiff was allegedly requiring 24-hour care as a dependent adult
patient in Defendant’s hospital, Plaintiff was allegedly left unattended and somehow
attempted to exit the bed, becoming entangled in restraints that were allegedly put on
improperly. This allegedly caused her to suffer asphyxia and sudden respiratory arrest
ultimately resulting in permanent brain damage. (Second Am. Compl., ¶¶ 3, 6, 8, 11.)

Defendant is alleged to have consciously chosen not to use manufacturer-
recommended equipment designed to prevent a patient from going through the gap
between the bed’s upper and lower side rails. Defendant is also alleged to have
ignored manufacturer warnings about using the restraint belt. (Id. ¶¶ 4, 6.) This is
alleged to be a violation of the manufacturer’s warnings, listed and depicted in an
obvious and bold illustration printed directly on the restraints. Additionally, Defendant
is alleged to have consciously chosen to skip a dose of plaintiff’s prescribed
medication, which would have allegedly calmed Plaintiff and reduced her agitation
such that she would not have exited the bed and become entangled in the restraints. (
Id. ¶¶ 5-9.)

On October 24, 2013, the Court overruled Defendant’s demurrer and found that the
above-described factual allegations were sufficient to state a cause of action under the
Elder Abuse Act. In its moving papers, however, Defendant again argues that even if
Plaintiff’s factual allegations are taken as true, they fail to constitute conduct that rises
to the level of a violation of the Elder Abuse Act. (Mot. for Summ. Adj. at 4-6.)
However, the Court previously rejected this argument when it overruled Defendant’s
demurrer on October 24, 2013. Accordingly, Defendant’s first argument is not well-
taken.

Defendant argues that there is no evidence that it “consciously” withheld medical
equipment or medication from Plaintiff. (Mot. for Summ. Adj. at 6-12.) Defendant’s
Separate Statement of Undisputed Facts (“SSUF”) includes the following: Prior to
Plaintiff’s injury, Defendant was unaware of the manufacturer’s recommendation that
Posey Gap Protectors be used with the Posey Belt restraint, did not possess Gap
Protectors, and did not train its nursing staff to use Gap Protectors with a Posey Belt.
Also prior to Plaintiff’s injury, Defendant’s Restraint Policy and Procedure did not
require the use of Gap Protectors when using a Posey Belt to restrain a patient. Nurse
Rachel Scott (“Nurse Scott”) was not trained to use Gap Protectors when restraining a
patient with a Posey Belt, and the Gap Protectors were not available in the hospital
until after Plaintiff’s injury. Also, Nurse Scott cannot state whether the second (12:00
p.m.) dose of Propranolol was administered to Plaintiff on the date of the injury. Nurse
Scott left on a lunch break at, or just before, noon and “gave report” to a break relief
nurse. Plaintiff was to be taken to Radiology for an x-ray but was still in her room
when Nurse Scott left on her lunch break. At some point after Plaintiff’s injury, but on
the same day, Nurse Scott discovered there was no charting related to the
administration of the second dose of Propranolol. Nurse Scott did not “intentionally or
recklessly” fail to administer the noon dose of Propranolol. If the noon dose of
Propranolol was not administered, it was “an oversight.”

Plaintiff’s Opposition to Defendant’s motion asserts that Defendant violated the Elder
Abuse Act in interrelated ways, consistent with the facts alleged in her pleading. First,
Plaintiff argues that Defendant consciously chose not to administer a dose of
Propranolol to Plaintiff, which contributed to her “agitation.” Second, Plaintiff argues
that Defendant consciously chose not to use bedrail “Gap Protectors” in conjunction
with Plaintiff’s restraint belt despite clear manufacturer recommendations that Gap
Protectors be used, and that Defendant consciously ignored manufacturer warnings
that the restraint belt should not be used with “agitated” patients. (Second Am. Compl.
at 6-7; Pl.’s Oppo. to Mot. for Summ. Adj. at 6-9, 18-19; Pl.’s Separate Statement of
Undisputed Material Facts (“Pl.’s SSUF”) Nos. 19-33.)

A defendant moving for summary judgment or summary adjudication bears the burden
of showing that the causes of action have no merit or that there are one or more
complete defenses to them. (CCP § 437c(p)(2).) Specifically, a motion for summary
adjudication is appropriate if one or more “cause of action has no merit.” (Code Civ.
Proc., § 437c, subd. (f)(1)). A judge must grant a motion for summary judgment if all
the papers submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. (Id. § 437c(c); Mann v.
Cracchiolo (1985) 38 Cal.3d 18, 35.) Summary judgment is properly granted only if
the moving party’s evidence establishes that there is no issue of material fact to be
tried. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374.) Once the moving party
meets this burden of production, the burden shifts to the opposing party to produce
admissible evidence demonstrating the existence of a triable issue of material fact. (
Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 849.) A judge may not grant
summary judgment when any material factual issue is disputed. (O’Riordan v. Federal
th
Kemper Life Assur. (2005) 36 Cal.4 281, 289.)

Defendant’s evidence is sufficient to meet its initial burden of proof , and the Court
finds that Plaintiff has established the existence of triable issues of material fact
underlying Plaintiff’s Elder Abuse claim.

Defendant’s “Undisputed Material Fact” (“UF”) No. 6.

First, Plaintiff has identified evidence directly disputing Defendant’s UF No. 6.
Defendant’s UF No. 6 provides, “Rachel Scott, R.N., cannot definitively state if the
second (12:00 p.m.) dose of Propranolol was administered to plaintiff on December 10,
2010.” In support of this UF, Defendant cites Nurse Scott’s declaration at ¶ 12, which
reads, in pertinent part, “At this time, I do not know if Ms. Allen received her 1200 dose
of Propranolol . . . I cannot even say when I specifically learned she may not have
received the 1200 dose of Propranolol.”

However, Plaintiff has identified evidence disputing UF No. 6 and the cited portion of
Nurse Scott’s declaration. (Pl.’s Response to Def.’s UF No. 6 (citing Scott Depo. at
178:12-179:4).) In her deposition, Nurse Scott testified as follows:

“Q: Were you aware, when you came back, that they’d not given the Propranolol; did
you check and see that they hadn’t given it?
A: I check. It says that it – I know I checked after, when I came back.
Q: And then, therefore, if it hadn’t been given, you would have known that, right? A:
Correct.
Q: Did you know that it hadn’t been given?
A: Yes.
Q: Although you knew it hadn’t been given, I’m correct that you did not administer it
before this event occurred where the patient was found partly in and outside the bed;
am I correct?
A: Correct.”

(Scott Depo. at 178:12-179:4.) Accordingly, although Defendant suggests it is “undisputed” that Nurse Scott “cannot
definitively state” whether Plaintiff received the noon dose of Propranolol, Plaintiff has
identified evidence to the contrary. Specifically, Nurse Scott testified that she did
definitively “know” Plaintiff’s noon dose of Propranolol had not been administered, and
that even though she “knew” it had not been administered, that she did not thereafter
administer the noon dose herself. (Scott Depo. at 178:12-179:4.) It is not “undisputed”
that Nurse Scott does not know (or “cannot definitively state”) whether the Propranolol
dose had not been given; indeed, she testified that she both “knew” the dose had not
been given and, despite that knowledge, that she chose not to administer it prior to
Plaintiff’s injury. (Ibid.) Plaintiff’s evidence gives rise to a triable issue of material fact
as to whether and when Nurse Scott “knew” Plaintiff had not received the noon dose of
Propranolol.

Defendant’s UF No. 11

Plaintiff has also identified evidence directly disputing Defendant’s UF No. 11.
Defendant’s UF No. 11 provides, “If the 12:00 p.m. dose of Propranolol was not
administered, which is in dispute, it was an oversight as a result of plaintiff being taken
off the unit to undergo an x-ray while Ms. Scott was on a lunch break.” In support of
UF No. 11, Defendant cites to Nurse Scott’s declaration at ¶ 13, which states, “I did not
recklessly nor intentionally fail to administer medication to Ms. Allen; if she was not
given the medication, it was due to an oversight only when she was taken off the unit
for a right knee x-ray during my lunch break.”

However, Plaintiff has identified evidence disputing UF No. 11 and Nurse Scott’s
declaration on this issue. (Pl.’s Response to Def.’s UF No. 11 (citing Scott Depo. at
179:10-13).) In her deposition, Nurse Scott testified as follows: “Q: Was it an oversight
that you did not give it [the noon dose of Propranolol], or did you make a conscious
decision not to give it? A: I’m sure it was not an oversight.” (Scott Depo. at 179:10-
13.)

As an initial matter, the text of UF No. 11 concedes that whether Plaintiff ever actually
received the noon dose of Propranolol remains a “disputed” issue in this case. Yet
Defendant urges the Court to find that there are no disputed issues of material fact
preventing summary adjudication of claims arising from the potentially-skipped dose of
medication. Defendant suggests that it is immaterial whether or not the dose was
actually skipped, arguing that as a matter of law, skipping a “single dose of medication”
does not suffice to show recklessness or conscious disregard of a high probability of
injury. (Mot. for Summ. Adj. at 12-15 (citing cases).) However, while skipping a single
dose might not necessarily indicate the recklessness or “conscious disregard” required
to prove violation of the Elder Abuse Act, Defendant’s UF No. 11 nonetheless frames
as “material” the issue of whether the single dose was skipped purposefully or as a
mere “oversight.”

Although Defendant’s UF No. 11 suggests it is “undisputed” that the potentially-
skipped dose was due to an “oversight” arising from the timing of Nurse Scott’s lunch
break and Plaintiff’s knee x-ray, Plaintiff has identified contrary testimony from Nurse
Scott. Specifically, as Plaintiff notes, Nurse Scott testified that the dose had been
skipped and that it was “not an oversight.” (Scott Depo. at 179:10-13.) Accordingly,
Nurse Scott’s deposition testimony directly conflicts with her declaration on an issue
Defendant has deemed both undisputed and material. Given the identified contradictory evidence, to the extent plaintiff missed a dose of Propranolol, it cannot
be said to have been indisputably the result of a mere “oversight.” (Code Civ. Proc. §
437c(c).) There are triable issues of fact as to whether Plaintiff ever received the noon
dose of Propranolol, and if she did not receive it, whether this was the result of “an
oversight.”

The above-described disputes of material fact surrounding the potentially-skipped
dose of Propranolol alone require that Defendant’s motion for summary adjudication
be denied. As a result, The Court need not address arguments regarding other
theories of liability underlying Plaintiff’s Elder Abuse claim, including arguments
regarding Defendant’s use of the Posey Belt and Defendant’s non-use of manufacturer
-recommended Gap Protectors.

Evidentiary Objections

Plaintiff raised objections to evidence Defendant filed in support of its motion. (Pl.’s
Objections to Def.’s Evidence at 1-7.) Objection Nos. 1 and 2 are SUSTAINED, as the
documents identified within these objections (Nurse Scott’s “Assessment Note” and
the “Restraint Flow Sheet”) constitute hearsay, and Defendant has not established that
the documents are subject to hearsay exceptions or are being cited for reasons other
than for the truth of the matters stated therein. Objection Nos. 3 and 5 are also
SUSTAINED, as the referenced documents (the therapy notes and the x-ray report)
also constitute hearsay and were not properly authenticated. Objection Nos. 4, 6, 7, 8
and 9 are OVERRULED.

Defendant objected to paragraphs 18, 32, 35, 36, 41, 42, 44, 45, 54, 58, and 60 of the
declaration of Plaintiff’s expert Kathleen Martin. These objections are SUSTAINED, as
these paragraphs improperly contain the expert’s legal conclusions and/or lack the
requisite factual basis.

Given the above-described existence of triable issues of fact, Defendant’s Motion for
Summary Adjudication directed to the Second Cause of Action is DENIED.

Plaintiff’s counsel shall prepare an order pursuant to Code of Civil Procedure § 437c(g)
and California Rule of Court 3.1312.