Case Number: BC722679 Hearing Date: December 10, 2019 Dept: 27

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

VELMA MCELROY, ET AL.,

Plaintiff,

v.

LITTLE COMPANY OF MARY, ET AL.,

Defendant.

Case No. BC722679

DEMURRER

TENTATIVE RULING

Date: December 10, 2019

Department 27

MP: Defendant Dr. Terry Ishihara

OP: Plaintiffs Velma McElroy et al.

Service= OK by mail 11/7 – more than 16 ct. days + 5

INTRODUCTION

Dr. Terry Ishihara demurs to the 3rd cause of action for Elder Abuse in the 3rd amended Complaint of Plaintiffs Velma McElroy et al.

Defendant concurrently moves to strike portions of the complaint seeking emotional distress damages and attorney fees.

ALLEGATIONS

Plaintiff’s decedent, Bessie McElroy, was an “elder” within the meaning of the Welfare & Institutions Code. She was a resident of Seacrest Convalescent Hospital identified in the complaint as “providing long-term care as a 24-hour health facility as defined in §1250(c) of the Health & Safety Code.” It is further identified as a skilled nursing facility and a “care custodian” of Bessie McElroy.

Decedent was discharged from Providence Little Company of Mary Medical center San Pedro on December 1, 2017 with “her feet eaten away by bedsores.” Bessie McElroy was then admitted to Seacrest under the care of Dr. Ishihara. He is not alleged to be a SeaCrest employee, but a doctor “with privileges” at Seacrest.

Plaintiff Michelle McElroy was present when a feeding tube was set for Bessie and “questioned the large dose and referenced the order of a tritaed feeding” made at Providence. She was informed that the new order was from the dietician under orders by Dr. Ishihara. Before she left Michelle McElroy noted Bessie’s voice was hoarse.

Bessie was found dead by “private caregiver” Karla Flores on December 8, 2017. Dr. Ishihara proclaimed Bessie to be dead. He opined to family that it was likely a heart attack or stroke. Plaintiffs are “informed and believe” that the cause of death was bilateral aspiration.

There are facts concerning deficiencies both at Providence and Seacrest including understaffing, pervasive smells of urine and feces, inadequate cleaning supplies and treatment supplies. Plaintiffs also made complaints to the facilities that they did not make the time to reposition Bessie, resulting in bedsores.

DEMURRER

There has been but little change from the allegations of the 2nd amended complaint. Dr. Ishihara was decedent’s primary care physician. He agreed that decedent could be discharged from the Providence hospital.

The dietician at the Seacrest facility was allegedly under his direct supervision. Decedent’s family expressed concern that Bessie McElroy’s voice was becoming hoarse.

As indicated in the summary above, Dr. Ishihara pronounced Bessie McElroy’s death on December 8, 2017. Although he opined the cause was a heart attack or stroke, the heirs believe the cause was bilateral aspiration.

CAPACITY

Plaintiffs bring a survivor action as successors-in-interest to Bessie McElroy. CCP §377.32 requires an affidavit from “The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest . . .” with specific content. Such affidavit does not appear with the complaint and Defendant asserts none has been served.

Defendant contends the cause of action for negligence is also a survival claim requiring this affidavit, but there is no demurrer to that cause of action.

The defect is easily curable and a proper affidavit would apply to all survival causes of action in any event.

If Plaintiffs have not filed and served the CC §377.32 affidavit prior to the hearing, they shall be ordered to do so within five court days.

ELDER ABUSE

The standard authorities are offered that medical negligence, even gross negligence, is not sufficient to establish elder abuse or neglect.

“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. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407.)

The present allegations state medical negligence, but not elder neglect:

1. As a physician, even one supervising a dietician, he is not a care custodian.

2. D. Ishihara is not alleged to have withheld goods or services.

3. The decision to transfer decedent from Providence to Seacrest, a decision with which Plaintiffs disagreed, is no more than professional negligence. There is no act or omission which qualifies as reckless or an intention to cause harm.

4. There is no apparent causal connection between any alleged act or omission by Ishihara and Bessie McElroy’s death.

The court does not need to reach the contention that the 3rd amended complaint is a sham pleading but acknowledges that there are indeed unexplained discrepancies. Notably, Plaintiff originally alleged Dr. Ishihara was only responsible for Bessie’s care at Seacrest and now claim he was responsible for her care at Providence.

Opposition to this demurrer was due nine court days before the hearing which was November 26, 2019. No opposition has been filed with the court as of December 2, 2019. On November 27, 2019 Defendant filed notice that it had not received an opposition, either.

The demurer is sustained without leave to amend as to elder neglect. The motion to strike attorney fees and punitive damages (as enhanced remedies under the Elder Abuse Act) is placed off calendar as moot.

Plaintiffs are ordered to file a CCP §377.32 affidavit within 5 court days. If this is not done the court will strike the complaint on Defendant’s ex parte application.

DATED: December 10, 2019 _____________________________________

MARK C. KIM Judge of the Superior Court