Taja Allen vs. The Regents of the University of California

Nature of Proceeding: Hearing on Demurrer

Filed By: Todd, Kat

Defendant’s Demurrer to Plaintiff’s Second Amended Complaint (“SAC”) is
OVERRULED.

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Plaintiff’s form complaint sets forth two causes of action: the 1 for professional
negligence and the 2nd for abuse of a dependent adult. The defendant Regents’
demurrer is only to the second cause of action.

The Court declines to consider the extrinsic evidence offered by the defendant and by
the plaintiff. A demurrer tests the pleading alone; a court cannot sustain a demurrer on
the basis of extrinsic matter not appearing on the face of the pleading except for
matters subject to judicial notice. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864.)

Plaintiff is alleged to have been injured in an auto accident, and hospitalized at
defendant’s facility. Plaintiff was recovering from her injuries and required 24-hour
care. Plaintiff was a dependent adult as defined in Welfare & Institutions Code Section
15610.23.

While a patient at defendant’s hospital, Plaintiff is alleged to have become entangled in
the hospital restraints that were put on improperly, while plaintiff was left alone and
unattended, causing her to suffer asphyxia and sudden respiratory arrest resulting in
permanent brain damage. (SAC, paras. 3, 8.)

Defendants are alleged to have consciously chosen not to use bolster/side rail pads to
protect and/or prevent a patient from going through the gap between the upper and
lower side rails. This is alleged to be a violation of Defendants’ own hospital policy and
the manufacturer’s warning, listed and depicted in an obvious and bold illustration
printed directly on the restraints, which requires side rail pads be used with the type of
restraints prescribed for the plaintiff. Defendant is alleged to have been aware of this
warning and policy, yet consciously chose not to follow it, exposing plaintiff to
immediate risk. Defendant’s conscious choice not to use bolster pads was intended to
prevent the exact type of harm that befell the plaintiff. In doing so, defendants withheld
care. (SAC, para. 4)

Additionally, Defendants are alleged to have failed to administer the plaintiff’s
prescribed medicine at the proper time, which would have calmed Plaintiff and reduced
her agitation. Defendants are alleged to have consciously chosen to skip one dosage.
This demonstrated disregard for the high degree of probability that significant injury
and certain suffering that occurred to plaintiff. (SAC para. 5)

The Elder Abuse Act [EADACPA] is codified in Welfare and Institutions Code sections
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 act affords heightened
remedies to encourage private enforcement of the law, including damages for the
decedent’s pain and suffering, attorney’s fees and costs, and possible punitive
damages. In order to state a cause of action under the act, the plaintiff must plead
facts showing two elements: (1) the defendant has subjected an elder to physical abuse as defined by section 15610.63, neglect as defined by section 15610.57, or
financial abuse as defined by section 15610.30; and (2) the defendant acted with
recklessness, malice, oppression, or fraud in the commission of the abuse. ( § 15657.)

Moving party contends that the conduct stated in the complaint alleges only medical
negligence, not “neglect”, as defined in Welf. & Inst. Code, sec. 15610.57, which
includes failure to provide medical care or failure to protect from health and safety
hazards. For purposes of the EADACPA, reckless neglect is not negligence in the
undertaking of medical services, but rather concerns the fundamental failure to provide
medical care. (Delaney, supra, at p. 34.) Reckless neglect includes only “acts of
egregious abuse.” (Id. at 35.) Recklessness under the Act, is more than “inadvertence,
incompetence, unskillfullness, or a failure to take precautions’ but rather rise to a level
of a ‘conscious choice of a course of action…with knowledge of the serious danger to
others involved in it.'” (Id. at 31-32.)

Section 15610.57 defines neglect as follows:

“(a) ‘Neglect’ means either of the following:

“(1) The negligent failure of any person having the care or custody of an elder . . . to
exercise that degree of 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.

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

“(4) Failure to prevent malnutrition or dehydration

The court in Delaney found it instructive that the statutory definition of “neglect”
provided in section 15610.57 “gives as an example of ‘neglect’ not negligence in the
undertaking of medical services but the more fundamental ‘failure to provide medical
care for physical and mental health needs.'” (Delaney, supra, 20 Cal.4th at p. 34.) The
Supreme Court revisited this concept in Covenant Care, where it held: “As used in the
[Elder Abuse] Act, neglect refers not to the substandard performance of medical
services but, rather, to the ‘failure of those responsible for attending to the basic needs
and comforts of elderly or dependent adults, regardless of their professional standing,
to carry out their custodial obligations.’ [Citation.] Thus, the statutory definition of
neglect speaks not of the undertaking of medical services, but of the failure to provide
medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)

The Court finds that plaintiff has pleaded sufficient facts to state a cause of action.

Defendant shall file and serve its Answer to the Plaintiff’s SAC not later than Monday,
Nov. 4, 2013.

The minute order is effective immediately.