Case Number: GC051049    Hearing Date: September 12, 2014    Dept: B

15. GC051049
TRINIDAD MAGDALENO vs COLLEGE HOSPITAL INC.
Demurrer and Motion to Strike
Case Management Conference

The Plaintiff is a mentally disabled 27 year old man. The Plaintiff was admitted to the Defendant’s outpatient day treatment program. A van run by the Defendant picked Plaintiff up from his house and brought him to the hospital for his program. Plaintiff alleges that the Defendant knew that the Plaintiff needed to be closely supervised due to his mental condition, but engaged in dependant person abuse/neglect by: not supervising Plaintiff when dropped off for the program resulting in the Plaintiff leaving the facility; failing to notice that the Plaintiff was missing despite the Plaintiff failing to appear for four, separate scheduled therapy sessions; and failing to adequately staff the program to properly supervise the patients. This resulted in the Plaintiff being missing for six days. During this six day period, the Plaintiff suffered from lack of food, water, and medication. This trauma caused the Plaintiff to be placed in an inpatient psychiatric facility for nine months.

The Plaintiff further alleges liability by the hospital by alleging that managers, directors, administrators and officers of the hospital, who the complaint identify as “does”1-100 are responsible for the wrongful acts. These individuals are not otherwise identified.

The Causes of action in the First Amended Complaint are:
1) Dependent Adult Abuse
2) Negligence
3) Negligent Infliction of Emotional Distress

This hearing concerns the Defendant’s demurrer and motion to strike directed at the Second Amended Complaint.

1. Demurrer
The Defendants argue that the first cause of action for elder abuse does not plead sufficient facts to state the statutory claims.

First, the Court notes that Plaintiff alleges the factual elements of the first cause of action by reincorporating its introductory paragraphs. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendant is required to search the pleadings in order to determine whether the Plaintiff has pleaded the particular facts needed to state the statutory cause of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.

Assuming that that the factual elements may be so incorporated, which they may not, the following is a further analysis of the first cause of action and the demurrer.

A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act).
The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.
In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Accordingly, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice. Further, as with all such claims, the officer, director or authorized agent acting on behalf of the corporation must be identified.

A review of the pleadings in the first cause of action reveals that the Plaintiff pleads that the Defendant engaged in neglect in the care and treatment they provided to the Plaintiff. To plead neglect within the meaning of the Elder Abuse Act a plaintiff must allege 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;
2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; 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 (italics added for emphasis).
Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 406-407.

In addition, the plaintiff must allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Id. 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. Id.

The Plaintiff alleges the following:

1) The Defendant had responsibility for meeting the basic needs of the Plaintiff because he was in their outpatient program and he was wholly dependent on the facility staff to meet his basic needs (paragraphs 10 and 13);
2) The Plaintiff was a mentally disabled 27 year old man who had been diagnosed with schizophrenia and other psychotic disorders (paragraphs 5 to 8);
3) The Defendant knew of the Plaintiff’s need to be closely supervised because he lacked the mental ability to provide for his own needs or safety and the Defendant had been specifically warned that the Plaintiff needed to be under close supervision and closely watched (paragraphs 12 and 13);
4) The Defendant failed to provide the close supervision to ensure that the plaintiff entered the day program after he was dropped off by the hospital’s van at the hospital thereby enabling him to leave the facility without supervision (paragraphs 15 to 19);
5) The Defendant failed to notice that the Plaintiff was missing for five hours and failed to call promptly the police when he was discovered missing (paragraphs 15 to 19).

In addition, it is alleged that the Defendant knew of the danger to the Plaintiff as he did not have the mental ability to provide for his own needs or safety yet they did not closely supervise him (paragraphs 12 and 13). The Defendant knew that the failure to provide for his basic needs would unnecessarily expose the plaintiff to great physical and mental harm (paragraph 12). The Defendant failed to provide for his basic needs with a conscious disregard that the Plaintiff would suffer unnecessary physical, mental, and emotional pain and suffering (paragraph 27).

In Carter v . Prime Healthcare Paradise Valley LLC, supra, the Plaintiff alleged that after being admitted to defendant hospital and after being in nursing home care and developing bed sores and sepsis, the hospital failed to prevent additional bed sores, failed to give the deceased life saving antibiotics or to stock a crash cart. Further, the Plaintiff alleged that the hospital maintained false records to the contrary. The deceased died because the hospital was unable to locate “a common-sized endotracheal tube to intubate him and save his life.” In sustaining the granting of demurrer without leave to amend, the Court noted:

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 (citations omitted); (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (citations omitted) 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…”

The Court found that the allegations against the hospital did not demonstrate the hospital denied or withheld services, and that the conduct did not sufficiently rise to the level of neglect. The Court further noted:

“With respect to the conduct actually attributed to the
Hospital—failure to treat Grant’s pressure ulcers, administer
prescribed antibiotics or stock the crash cart; false documentation;
and purposefully inadequate testing for medications—plaintiffs
contend their allegations the Hospital acted “recklessly” or “fraudulently” suffice to cause “the acts to rise to the level of neglect” under the Elder Abuse Act. We disagree.

In Worsham v. O’Connor Hospital (2014) 226 Cal. App. 4th 331 (denial by Supreme Court of request for depublication at 2104 Cal. LEXIS 5549) the Court further explained the significance of the difference between professional negligence and violation of the Elder Abuse Act. In particular the Court focused on the difference between undertaking medical services negligently and failing to provide those services.
In Worsham, supra, the plaintiff alleged negligence and elder abuse based on allegations that the hospital was chronically understaffed and did not adequately train the staff it did have. Further, the plaintiff claimed that the hospital knew of the propensity of the plaintiff to fall, yet left her unsupervised, which resulted in her fall.
While in the defendant’s transitional care unit for rehabilitative services, the plaintiff fell and broke her arm and hip. In her complaint, Worsham alleged claims for negligent elder abuse, contending, , that the transitional care unit knew about her risk of falling and was understaffed and under trained which caused her fall. These allegations are similar to the allegations in the pending case that the Defendant knew about the risk to the plaintiff and that the Defendant was understaffed to handle his needs.
The Court of Appeal upheld the granting of demurrer without leave to amend, finding that the facts alleged constituted a claim for professional negligence and not elder abuse. Finding that the Elder Abuse Act does not apply to simple or even gross negligence, the Worsham court reiterated that facts demonstrating “reckless, oppressive, fraudulent or malicious conduct” in the denying of services must be specifically plead.

In Worsham and in Carter, the allegations were deemed to be ones for professional negligence, not elder abuse. The facts in the pending case are strikingly similar to the facts in the Worsham case: e.g., knowledge of propensity for injury, failure to supervise, failure to properly staff, and no claims of withholding or denying of services.

For example, a sufficient claim that a skilled nursing facility withheld or denied basic services is in Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426. In Country Villa, the claim was that the defendant 1) failed to provide adequate pressure relief to a 76-year-old woman with severe pain in her left leg and identified as at high risk for developing pressure ulcers; 2) dropped the patient; 3) left “her in filthy and unsanitary conditions”; and 4) failed to provide her the proper diet, monitor food intake and assist her with eating.

In the pending case, there are no allegations that identify a good or service necessary to meet the dependent adult’s basic needs that was withheld or denied, e.g., the withholding of relief from a medical condition or the denial of services needed for nutrition or hygiene. Instead, the allegations in paragraphs 15 to 19 plead that the Plaintiff’s injuries were the result of the Defendant failing to provide supervision to ensure that the plaintiff did not leave the facility. This is a breach of a duty of care and not a claim that the Defendant withheld or denied a good or service necessary to meet the plaintiff’s basic needs.
As in Worsham, the court concludes that Plaintiff pleads a claim for professional negligence, not elder abuse. For the foregoing reasons, the Defendant’s demurrer is sustained.
The Court identified this defect when it sustained the Defendant’s demurrer to the original Complaint. The Plaintiff was unable to correct the defect when the First Amended Complaint was drafted. The Court does not grant leave to amend because it finds that it is not possible for the Plaintiff to correct this by amendment.

2. Motion to Strike
In light of the ruling on demurrer, the motion to strike is taken off calendar.