Case Number: KC065188 Hearing Date: May 21, 2014 Dept: J

Re: Bernadette Salazar, etc., et al. v. Georgia Atkison SNF, LLC, etc., et al. (KC065188)

DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Moving Parties: Defendants Oscar L. Chien, M.D. and Hsiu Ho, N.P. (served herein as Does 21 and 22 respectively)

Respondents: Plaintiffs

POS: Moving OK; Opposing OK; Replies OK

Plaintiffs commenced this action for elder abuse and wrongful death on December 5, 2012. The operative First Amended Complaint (“FAC”), filed pursuant to stipulation on February 24, 2014, asserts causes of action for:

1. Elder Abuse and Neglect
2. Violation of Patient’s Bill of Rights
3. Elder Abuse and Neglect
4. Wrongful Death

The Final Status Conference is set for October 6, 2014, with a trial date of October 21, 2014.

(1) DEMURRER TO FIRST AMENDED COMPLAINT:

Defendants Oscar L. Chien, M.D. and Hsiu Ho, N.P. now demurrer to the Third Cause of Action for Elder Abuse and Neglect asserted against them, and move to strike portions of the FAC.

The elements of a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act, Welfare & Inst C § 15600, et seq. are statutory, and reflect the legislature’s intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82. Like other statutory causes of action, a claim under the Act must be pled with particularity. Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

Under the Act, abuse of an elder or a dependent adult entails either of the following: (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Welfare & Inst C § 15610.07; Covenant Care, Inc. v. Superior Court, supra, at 779, fn.3. For example, physical abuse of an elder includes unreasonable physical constraint, or prolonged or continual deprivation of food or water, as stated in Welfare & Inst C § 15610.63(d). Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1517. Also, neglectful elder abuse is 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. Covenant Care, Inc. v. Superior Court, supra, at 785.

“Neglect” is defined in Welfare & Inst C § 15610.57 as either (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, or (2) failure to provide medical care for physical and mental health needs. Mack v. Soung (2000) 80 Cal.App.4th 966, 973. Specifically, Welfare & Inst C § 15610.57(a)(1) defines “neglect” as 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, and includes failure to provide medical care for physical and mental health needs [§ 15610.57(b)(2)], failure to protect from health and safety hazards [§ 15610.57(b)(3)], and failure to prevent malnutrition or dehydration (§ 15610.57(b)(4)]. Smith v. Ben Bennett, Inc., supra, at 1517. Thus, “neglect” within the meaning of Welfare & Inst C § 15610.57 covers an area of misconduct distinct from professional negligence. Covenant Care, Inc. v. Superior Court, supra, at 783. As used in the Elder Abuse and Dependent Adult Civil Protection Act, “neglect” refers not to the substandard performance of medical services but, rather, to the failure to provide medical care. Id. That is, claims under the Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not also be health care providers. Covenant Care, Inc., supra, at 786.

In the FAC, the demurring defendants are collectively referred to as the “Doctor Defendants,” and are not the subject of the first and second causes of action which are alleged solely against the “Nursing Home Defendants.” The third cause of action alleges that upon admission to the Nursing Home’s facility, the decedent was also under the “care and custody” of the Doctor Defendants, who were aware of the decedent’s conditions at the time of her admission and were aware that she was at high risk for dehydration, urosepsis, and death should she fail to receive sufficient fluids. (FAC, ¶¶ 78-80.) On or about June 22, 2012, the Doctor Defendants were notified that the decedent’s laboratory reports were abnormal and indicated that she was suffering from dehydration and acute renal failure secondary to dehydration. (FAC, ¶ 81.) Despite this knowledge, the Doctor Defendant failed to discontinue their previous prescription of Lasix for the decedent, which works to remove fluids from the body and further dehydrate the patient. (FAC, ¶ 82.) Plaintiffs further allege that the Doctor Defendants failed to initiate an order to monitor the decedent’s fluid intake or her daily weight, and “only” ordered on June 22, 2012, “IV fluid . . . if resident is willing to have IV. If resident is not willing to have IV, encourage her to drink water [times] 500 ml.” (FAc, ¶¶ 83-84.)

Plaintiffs go on to assert that the foregoing order was insufficient to address the decedent’s hydration needs, that the manner in which the order was written allowed the Nursing Home to use its discretion, failed to order follow up laboratory tests to determine whether the order was working to rehydrate the decedent, and led to the decedent’s injuries and ultimately her death. (FAC, ¶¶ 85-87, 97.)

The court finds that, taken as a whole, the third cause of action alleges that the Doctor Defendants provided the decedent with “woefully” substandard medical care, but not that they withheld or denied medical care to the decedent. This speaks of negligence, but not the “failure to provide medical care” set forth in Welfare & Inst C § 15610.57(b)(2). Nor does it demonstrate an “abandonment” of the decedent by the Doctor Defendants as alleged by plaintiffs. Therefore, the demurrer to the third cause of action is sustained. Leave to amend is denied at this time. However, counsel for plaintiffs may bring a motion for leave to re-allege this cause of action if discovery yields additional facts to support the cause of action.

(2) MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT:

Defendants Oscar L. Chien, M.D. and Hsiu Ho, N.P. also move to strike from the First Amended Complaint the prayer for attorney’s fees and punitive damages.

In light of the court’s sustaining of the defendants’ demurrer to the third cause of action, and because the fourth cause of action for wrongful death against these defendants is alleged in terms of breaching their standard of care, i.e. negligence, the motion is granted as to these defendants.