2015-00184230-CU-PO

Beverly Edwards vs. Plum Healthcare Group, LLC

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Luis Lee, M.D.)

Filed By: Cushman, Dawn

Defendant Luis Lee, M.D.’s (“Dr. Lee”) motion for summary judgment or, in the alternative, summary adjudication is DENIED.

Objections to Evidence

Dr. Lee’s objections numbers 1, 15-18, 34, 63, and 71 are OVERRULED. The Court need not rule and does not rule on Dr. Lee’s remaining objections to evidence. (See Code Civ. Proc. § 437c(q).)

The Court need not rule and does not rule on Plaintiff’s objections to evidence. (See

Code Civ. Proc. § 437c(q).)

Factual and Procedural Background

This action arises from plaintiff Beverly Edwards’ (“Edwards” or “Plaintiff”) stay at three different skilled nursing facilities owned and operated by the “Plum Corporate Defendants” following surgery on her left ankle. The Plum Corporate Defendants retained Vohra Wound Physicians of California, P.C. “to provide safe custodial medical management of the residents’ wounds” and Vohra employee, Dr. Lee, was assigned to care for Plaintiff’s wounds during her stay at one facility – Westview.

Plaintiff alleges the high volume nature of the business pressures physicians to see large numbers of patients on a daily basis and to debride wounds on every visit to maximize Medicare revenue. Plaintiff alleges that Dr. Lee, a Vohra Physician, debrided her pressure ulcers so excessively that he exposed her bone. Dr. Lee allegedly never told her attending physician, the orthopedist, or her family about her exposed bone. Plaintiff eventually became septic and her leg was amputated.

Plaintiff’s Second Amended Complaint filed on February 1, 2018, alleges only one cause of action for elder abuse against Dr. Lee.

Dr. Lee now moves for summary judgment based on summary adjudication of the following two “issues”:

(1) Plaintiff’s cause of action for elder abuse against Dr. Lee lacks merit because Dr. Lee was not Plaintiff’s “care custodian” for purposes of imposing elder abuse liability against him for “neglect” as that term is defined in the Welfare & Institutions Code; and

(2) Plaintiff’s cause of action for elder abuse against Dr. Lee lacks merit because Dr. Lee did not engage in any act upon Plaintiff that would constitute “physical abuse” as that term is defined in the Welfare & Institutions Code.

Summary Judgment Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of

persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

Discussion

Preliminarily, the Court rejects Plaintiff’s argument that Dr. Lee’s motion is procedurally defective and warrants denial because adjudication of each of his “issues” would not dispose of an entire cause of action. Dr. Lee has asked this Court to treat Plaintiff’s first cause of action as two separate causes of action under the Elder Abuse Act – one for “neglect” and one for “physical abuse.”

It is true that summary adjudication must dispose of an entire cause of action. (Code Civ. Proc. § 437c, subd. (f)(1).) But where a plaintiff has pleaded multiple theories for relief in a single count or has combined multiple separate and distinct wrongful acts in a single cause of action, summary adjudication may be granted as to each allegation “which would have formed a single cause of action if properly pleaded.” (Exxon Corp. v. Super. Court (1997) 51 Cal.App.4th 1672, 1688, fn. 11; see also Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855; Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1255-1260.) However, summary judgment may not be granted unless the defendant’s motion disposes of all such allegations. It is the moving party’s initial burden to show that the opponent “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940, italics added.) Only if the moving party has met its burden with respect to every theory raised in the pleadings does the burden shift to the opponent. (Ibid.)

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.)

As the first cause of action could have alleged two separate causes of action under the Elder Abuse Act – one based upon physical abuse and another based upon neglect – the Court treats each purported violation of the Act as separate claims in the first cause of action. (See Lilienthal, supra, 12 Cal. App. 4th at 1854 [where cause of action alleges more than one distinct act, each of which constitute a cause of action, defendant may move for summary adjudication as to each act].) Based on the foregoing, adjudication of each of Dr. Lee’s “issues” could potentially dispose of each of Plaintiff’s causes of action for neglect and physical abuse under the Elder Abuse Act.

Issue 1 – Whether Dr. Lee is a “Care Custodian” Under the Elder Abuse Act

Dr. Lee advances that Plaintiff’s first cause of action for elder abuse fails on the grounds that he was not a “care custodian” as defined under the Elder Abuse Act. In support, Dr. Lee relies on Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148.

The defendants in Winn provided only outpatient care for an elderly patient’s ongoing maladies related to her circulation and her feet. But, they did so for a period of more than 5 years. The elderly patient’s condition became increasingly more severe under the defendants’ care, and ultimately led to amputation of her leg, and possibly to her death. Plaintiffs filed a complaint for elder abuse, alleging that defendants consciously failed “to make a vascular referral.” The trial court sustained the defendants’ demurrer based on plaintiffs’ failure to sufficiently allege more than “mere negligence” and the “provision of inadequate care.” Plaintiffs appealed and the Court of Appeal reversed, with the California Supreme Court granting review “to consider whether a claim of neglect under the…Act requires a caretaking or custodial relationship-where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn, supra, 63 Cal.4th at 155.) The Court concluded the Act does not apply “unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient” and “[i]t is the nature of the elder[‘s]…relationship with the defendant–not the defendant’s professional standing–that makes the defendant potentially liable for neglect.” Thus, because the doctors at issue did not have “a caretaking or custodial relationship with the decedent,” plaintiffs could not adequately allege neglect under the Act. (Winn, supra, 63 Cal.4th at 152 (emphasis added).)

Winn looked to the statutory definition of “neglect” in Welfare & Institutions Code section 15610.57 to assist in defining the relationship required under the act, and found that the various forms of neglect described “each seem to contemplate” “the existence of a robust caretaking or custodial relationship — that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn, supra, 63 Cal.4th at 157-58 (emphasis added).)

In an effort to provide some meaning to the element of care and custody, the Winn

court stated that ultimately “the focus of the statutory language is on the nature and substance of the relationship between an individual and an elder or a dependent adult. This focus supports the conclusion that the distinctive relationship contemplated by the Act entails more than casual or limited interactions. (Winn, supra, 63 Cal.4th at 158.)

Thus, the failure to provide medical care assumes the defendant is in a position to

deprive an elder or a dependent adult of medical care and it is the relationship with an
elder or a dependent adult, not the defendant’s professional standing, which makes
the latter potentially liable under the Act. (Winn, supra, 63 Cal.4th at 158.) After all, “[t]
he Act seems premised on the idea that certain situations place elders and dependent
adults at heightened risk of harm, and heightened remedies relative to conventional
tort remedies are appropriate as a consequence” and “[b]lurring the distinction

between neglect under the Act and conduct actionable under ordinary tort
remedies…risks undermining the Act’s central premise.” (Winn, supra, 63 Cal.4th at 159
-160.) As such, “the phrase ‘care or custody’ evokes a bond that contrasts with a
casual or temporally limited affiliation” since it is difficult to imagine under what
circumstances an individual could “abandon” an elder or dependent adult absent the

existence of a caretaking or custodial relationship and since nothing in the legislative
history suggests that the Act was intended to apply whenever a doctor treats any
elderly patient. (Winn, supra, 63 Cal.4th at 161-163.)

The California Supreme Court in Winn also explained that the “Act’s definition of care custodian in section 15610.17” does not, “as a matter of law, always satisfy the particular caretaking or custodial relationship required to show neglect under section 15610.57. While it may be the case that many of the ‘[c]are custodian[s]’ defined under section 15610.17 could have ‘the care or custody of’ an elder or a dependent adult as required under section 15610.57, subdivision (a)(1), plainly states the statute requires a separate analysis to determine whether such a relationship exists. Neither the text of section 15610.17 nor anything else in the statute supports plaintiffs’ argument that the presence of such a relationship may be assumed whenever the definition of ‘care custodian’ is met.” (Winn, supra, 63 Cal.4th at 164.)

Plaintiff’s opposition insists that Winn is distinguishable for the following reasons. The plaintiff in Winn was ambulatory and lived independently, while Ms. Edwards was a nursing home patient who was bedbound and totally dependent on others to assist her with daily living. The Vohra doctors were under contract with the nursing homes and automatically assigned to Ms. Edwards as part of her nursing home care, while the Plaintiff in Winn was treated at an outpatient clinic and free to seek treatment elsewhere. In contrast, Vohra was the exclusive provider of wound care consultation to Plaintiff’s nursing homes. The Vohra physicians saw Ms. Edwards every week for 6.5 months on 27 separate occasions, while the Winn plaintiff only saw her doctor a few times over many years.

Here, Dr. Lee has provided 143 purportedly undisputed material facts that he contends establish he was not a “care custodian” under Winn and, therefore, cannot be held liable for elder abuse. Even assuming this case is not distinguishable from Winn and assuming these 143 UMFs are sufficient to establish Dr. Lee did not have the requisite “robust caretaking or custodial relationship” as discussed in Winn, Plaintiff has established a triable issue of fact as to some of Dr. Lee’s purported UMFs as further discussed below.

Having identified said 143 facts as material to the resolution of the motion, Dr. Lee cannot argue that, where Plaintif has successfully disputed one of the factual assertions, that the disputed fact is not truly material. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [citing Weil & Brown, Civ. Proc. Before Trial, ch. 10:95.1].) The Court has found Plaintiff has created a dispute with respect to at least the following UMFs [although these are not the only ones] advanced by Dr. Lee:

UMF 79 provides that Dr. Lee was not responsible for managing or providing for Plaintiffs’ daily hydration, nutrition, hygiene, or shelter. In opposition, Plaintiff has presented evidence that Dr. Lee was completely in charge of all matters involving Plaintiff’s pressure wounds, surgical wounds, and related issues, and was responsible for issuing orders for care for the wound and its sequel, like turning and repositioning, diet, medications, hydration, specialty evaluations, and other aspects of patient care. (Declaration of Anita Semple (“Semple Decl.”) at ¶ 8.) Plaintiff also provided evidence that both the attending physician and wound care physician oversee and provide guidance regarding the day-to-day care provided to the patient, including nutrition, hydration, hygiene, repositioning, physical therapy, and activities. (Declaration of Mark Lachs, M.D. (“Lachs Decl.”) at ¶ 41.) This creates a dispute as to whether Dr. Lee was responsible for managing some of Plaintiff’s basic needs in relation to her pressure wounds. Moreover, Plaintiff has also presented evidence that Plaintiff’s pressure wounds were her most critical and immediately life-threatening condition and were the primary reason for her admission to a skilled nursing facility (Lachs Decl. at ¶ 41), which further bolsters the dispute as to whether Dr. Lee had the requisite substantial caretaking or custodial relationship with Plaintiff while she was being treated at Westview.

UMF 82 similarly advances that Plaintiff did not rely upon Dr. Lee to turn her periodically to prevent the development of wounds. However, as noted above, Plaintiff has presented evidence that Dr. Lee was responsible for issuing orders related to the care of her wounds, including turning and repositioning. Accordingly, this creates a dispute of fact as to whether Plaintiff did, in some way, rely on Dr. Lee for her turning and repositioning, even if it was not a reliance on Dr. Lee to personally turn her periodically.

UMFs 83-85 and 87-88 also advance that Plaintiff did not rely upon Dr. Lee to provide her with daily hygiene, daily hydration, daily nutrition, daily physical activity, or daily occupational therapy. In opposition, Plaintiff has provided evidence that the wound care physician is responsible for making orders or recommendations with regards to all of the foregoing as they relate to the patients wounds, which was the primary reason for Plaintiff’s admittances to a skilled nursing facility. (Semple Decl. at ¶ 8; Lachs Decl. at ¶¶ 28-30, 41.) While Plaintiff may not have relied on Dr. Lee to personally clean, hydrate, feed, or move her, this evidence creates a dispute of fact as to whether Plaintiff indirectly relied on Dr. Lee for the provision and management of these basic needs as they related to her wounds, which the Court finds is sufficient to create a triable issue of material fact.

UMF 91 states Dr. Lee was not responsible for managing Plaintiff’s overall medical well-being. In support, Dr. Lee cites to the declaration of his expert, Robert T. Wang, Ph.D. Plaintiff, however, has presented evidence from her own expert that both the attending physician and wound care physician oversee and provide guidance regarding the day-to-day care provided to the patient, including nutrition, hydration, hygiene, repositioning, physical therapy, and activities. (Lachs Decl. at ¶ 41.) The

Court finds the dueling experts’ testimony creates a dispute as to this purported fact.

UMF 93 provides Dr. Lee enabled Plaintiffs’ health care decision-making by providing a review of treatment options, risks, benefits of debridement, and possible subsequent need for additional debridement in obtaining consent. Plaintiff has presented evidence that no one ever discussed the process of cutting away tissue from her left foot and Dr. Lee did not explain the risks, benefits, or treatment options to her and she never consented to his treating her. (Edwards Depo. at 105:18-21; Edwards Decl. at ¶¶ 2, 5, and 6.) Plaintiffs’ testimony and declaration create a dispute of fact as to whether Dr. Lee explained the risks and benefits of her treatment options in obtaining consent.

UMF 119 advances that Dr. Lee provided Plaintiff with “licensed professional medical services that were periodic, intermittent and episodic … .” In opposition, Plaintiff has presented evidence that Dr. Lee and Dr. Montgomery saw her far more frequently (i.e., once a week) than any other physician, including her attending physician. (Lachs Decl. at ¶ 42.) This creates a dispute of fact as to whether Dr. Lee’s treatment of Plaintiff was more than “periodic, intermittent and episodic.”

It bears repeating that having identified said facts as material to the resolution of the motion, Dr. Lee cannot argue that, where Plaintiffs have successfully disputed one of Dr. Lee’s factual assertions, that the disputed fact is not truly material. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [citing Weil & Brown, Civ. Proc.

Before Trial, ch. 10:95.1].) If there is any issue of fact as to any of undisputed material facts, the motion “must be denied.” The Court is aware that the current section of the Practice Guide cited in Nazir (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-39 (rev. # 1, 2013)) changes “must be denied” to “may be denied.” This modification does not change the tenor of the motion or the Court’s ruling. It remains good advice that moving parties should include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. As noted In Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, a party moving for summary judgment concedes the materiality of each fact enumerated in its separate statement and, as a consequence, cannot argue that the motion should be granted because one or more of these facts are not truly material. As the Nazir court noted, the facts enumerated in a moving separate statement have a due-process dimension in that they define for the opposing party the facts which, if disputed with admissible evidence, may result in the motion being denied. (178 Cal.App.4th at 252 [citation omitted].) In reliance on the universe of facts in the moving separate statement, a party opposing a summary judgment motion is entitled to stop working on the opposition once (s)he has produced admissible evidence demonstrating that a single fact presents a triable issue.

Based on the foregoing, the Court finds Plaintiff has created a triable issue of material fact as to various purported UMFs offered by Dr. Lee in support of his motion and, therefore, Dr. Lee’s motion for summary adjudication as to issue 1 is DENIED.

Issue 2 – Whether Dr. Lee Engaged in Any “Physical Abuse” of Plaintiff

Dr. Lee contends Plaintiff’s first cause of action based on “physical abuse” of Plaintiff fails because Plaintiff consented to the treatment. In support, Dr. Lee offers 94 UMFs. Dr. Lee contends these facts establish Plaintiff was informed repeatedly by multiple physicians of the risks and benefits of debridement and other forms of wound

consultation physician services, never considered rejecting those services, and consented in writing to receiving wound consultant physician services on more than one occasion.

Assuming, arguendo, these 94 UMFs establish Plaintiff consented to all of her treatment by Dr. Lee, Plaintiff has presented sufficient evidence to create a triable issue of material fact. Specifically, Plaintiff has created disputes as discussed below.

UMF 16 states Dr. Lee noted on July 14, 2014, that he discussed the treatment options, risks and benefits of debridement with Ms. Edwards and noted that Ms. Edwards agreed to the procedure. Plaintiff has presented evidence, however, that she never consented to any treatment from Dr. Lee (Edwards Decl. at ¶¶ 2, 5, 6), which creates a triable issue of fact.

UMF 37 provides Dr. Lee was not responsible for managing or providing for Plaintiffs’ daily hydration, nutrition, hygiene, or shelter. In opposition, Plaintiff has provided evidence that the wound care physician is responsible for making orders or recommendations with regards to all of the foregoing as they relate to the patients wounds. (Semple Decl. at ¶ 8; Lachs Decl. at ¶¶ 28-30, 41.) While Plaintiff may not have relied on Dr. Lee to personally clean, hydrate, feed, or move her, this evidence creates a dispute of fact as to whether Plaintiff indirectly relied on Dr. Lee for the management of these basic needs as they related to her wounds.

UMFs 40-43 and 45-46 also advance that Plaintiff did not rely upon Dr. Lee to provide her with daily hygiene, daily hydration, daily nutrition, daily physical activity, or daily occupational therapy. Plaintiff has provided evidence that the wound care physician is responsible for making orders or recommendations with regards to all of the foregoing as they relate to the patients wounds. (Semple Decl. at ¶ 8; Lachs Decl. at ¶¶ 28-30, 41.) While Plaintiff may not have relied on Dr. Lee to personally clean, hydrate, feed, or move her, this evidence creates a dispute of fact as to whether Plaintiff indirectly relied on Dr. Lee for these basic needs as they related to her wounds.

UMF 49 states Dr. Lee was not responsible for managing Plaintiff’s overall medical well-being. In support, Dr. Lee cites to the declaration of his expert, Robert T. Wang, Ph.D. Plaintiff, however, has presented evidence from her own expert that both the attending physician and wound care physician oversee and provide guidance regarding the day-to-day care provided to the patient, including nutrition, hydration, hygiene, repositioning, physical therapy, and activities. (Lachs Decl. at ¶ 41.) The Court finds the dueling experts’ testimony creates a dispute as to this purported fact.

UMF 51 provides Dr. Lee enabled Plaintiffs’ health care decision-making by providing a review of treatment options, risks, benefits of debridement, and possible subsequent need for additional debridement in obtaining consent. Plaintiff has presented evidence that no one ever discussed the process of cutting away tissue from her left foot and Dr. Lee did not explain the risks, benefits, or treatment options to her and she never consented to his treating her. (Edwards Depo. at 105:18-21; Edwards Decl. at ¶¶ 2, 5, and 6.) Plaintiffs’ testimony and declaration create a dispute of fact as to whether Dr. Lee explained the risks and benefits of her treatment options in obtaining consent.

UMF 77 provides that Dr. Lee provided Plaintiff with “licensed professional medical services that were periodic, intermittent and episodic … .” In opposition, Plaintiff has presented evidence that Dr. Lee and Dr. Montgomery say her far more frequently (i.e.,

once a week) than any other physician, including her attending physician. (Lachs Decl. at ¶ 42.) This creates a dispute of fact as to whether Dr. Lee’s treatment of Plaintiff was more than “periodic, intermittent and episodic.”

UMF 84 provides Plaintiff consented to her wound treatments in writing. In support, Dr. Lee presents consent forms for wound care used by Sierra Nevada Memorial Hospital for would care by Dr. Boyle and Dr. Jebraili, but no signed consent forms regarding his care for Plaintiff. Accordingly, the Court finds this UMF is unsupported.

As discussed above, having identified said facts as material to the resolution of the motion, Dr. Lee cannot argue that, where Plaintiffs have successfully disputed one of Dr. Lee’s factual assertions, that the disputed fact is not truly material. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [citing Weil & Brown, Civ. Proc. Before Trial, ch. 10:95.1].)

Based on the foregoing, the Court finds Plaintiff has created a triable issue of material fact and, therefore, Dr. Lee’s motion for summary adjudication as to issue 2 is

DENIED.

Conclusion

Dr. Lee’s motion for summary judgment or, in the alternative, summary adjudication is DENIED.