Case Name: Hernandez, et al. v. Lifehouse San Jose Healthcare Center
Case No.: 2015-1-CV-288596

This is an action alleging elder abuse, initiated by plaintiffs Juanita Hernandez, William Vance Jr., Amelia N. Hanna, Katheren Korman, Joyce Korman, and Curtis Vance (collectively (“Plaintiffs”) against defendant Lifehouse San Jose Healthcare Center (“Defendant”).
According to the allegations of the operative third amended complaint (“TAC”), William Vance (“Decedent”) was admitted to Defendant’s facility on November 8, 2014 for rehabilitation following hospitalization for injuries sustained in an accident. (TAC, ¶ 10.) Defendant represented it would provide 24-hour care and adequate staffing. (Id. at ¶ 14.) Defendant was told the Decedent was a “high fall risk” and needed a bed that was low to the ground with handrails and floor pads placed on all sides of the bed. (Id. at ¶ 15.) Despite this warning, Defendant failed to take appropriate safety precautions and the Decedent fell on November 9, 2014. (Id. at ¶ 16.) Even though the fall resulted in a head injury, no “CT or X-ray” was done. (Ibid.)

Defendant failed to provide adequate care to Decedent in other ways. Prior to the Decedent’s admittance to the facility, his doctor prescribed him medication for pain management. (TAC, ¶ 17.) Defendant withheld this medication, despite the fact Decedent was moaning and restless. (Ibid.) In addition, the Decedent was prescribed an unnecessary drug, the antipsychotic Seroquel, in order to subdue him. (Id. at ¶¶ 22-23.)
While under Defendant’s care, the Decedent began having trouble breathing and experienced shortness of breath. (TAC, ¶ 26.) His condition worsened and he was transported to the Regional Medical Center Emergency Department, where he died on November 12, 2014. (Ibid.)

Plaintiffs assert a single cause of action for elder abuse. Currently before the Court is Defendant’s demurrer to the only cause of action on the ground of failure to state sufficient facts to constitute a cause of action, and a motion to strike the request for punitive damages.

I. Demurrer
Defendant contends the TAC asserts, at most, a claim for professional negligence, and thus the elder abuse claim is barred by Welfare and Institutions Code section 15657.2 (“Section 15657.2”). Defendant successfully advanced the same contention in its demurrer to the original complaint and the first amended complaint (“FAC”).

As stated in the prior Order, the Elder Abuse Act (the “Act”) is codified in Welfare & Institutions (“W&I”) Code section 15600 et seq. The 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 (“Delaney”).) To state a claim for elder abuse, a plaintiff must plead facts showing: (l) the defendant has subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (W&I Code, § 15657.) As a statutory claim, the elements must be pled with particularity. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396 (“Carter”.)

In its Order sustaining the demurrer to the FAC, the Court held Plaintiffs only alleged acts reflecting either professional negligence, the negligent undertaking of medical care, or simple or gross negligence; Plaintiffs did not allege acts rising to the level of recklessness, malice, oppression, or fraud. The Court additionally found the general allegations that the medical care provided by Defendant failed to meet state and/or federal regulations was not pleaded with the necessary specificity to support a statutory claim.
Plaintiffs filed the TAC for the purpose of curing the defects in the prior pleading. In amending the pleading, Plaintiffs added more detailed allegations of the Decedent’s moaning and restlessness due to Defendant’s withholding of pain medication. (TAC, ¶¶ 17-20.) Plaintiffs additionally added allegations that the California Department of Health investigated a complaint of the Decedent’s treatment at the facility and determined Defendant had “no proper purpose in drugging [him] with the strong antipsychotic drug Seroquel.” (Id. at ¶ 24.) Defendant asserts these allegations do not cure the deficiencies present in the FAC.

For context, “[n]eglect” is specifically defined in Section 15610.57, subdivision (a) as either the negligent failure of a person having the care of an elder adult to exercise that degree of care that a reasonable person in that position would exercise or the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in that position would exercise. Section 15610.57, subdivision (b) states that neglect under the statute includes the following: (1) failure to assist in personal hygiene or 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; and (5) failure of an elder or dependent adult to satisfy the needs specified in 1-4 for himself/herself because of poor cognitive functioning.

The acts proscribed by the statute do not include acts of simple professional negligence, but rather refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. (Delaney, supra, 20 Cal.4th at p. 32.) As explained in Delaney: “neglect . . . appears to cover an area of misconduct distinct from ‘professional negligence’” and “does not refer to the performance of medical services in a manner inferior to ‘the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing’, 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.” (Id. at p. 34, internal citations omitted.)

The Supreme Court in Delaney further explained as follows: “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence: he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’” (Delaney, supra, 20 Cal.4th at pp. 31-32.)

Reckless neglect for purposes of the Act is therefore not mere negligence in the undertaking of medical services, but rather, consists of the more fundamental failure to provide medical care. (Delaney, supra, 20 Cal.4th at p. 34.) Reckless neglect includes only “acts of egregious abuse,” not merely the substandard performance of medical services. (Id. at p. 35; see also Covenant Care, Inc. v Superior Court (2004) 32 Cal.4th 771, 785 (“Covenant Care”) [confirming that the high standard under the Act protects health care providers from liability under the statute “for acts of simple or even gross negligence.”]; Carter, supra, 198 Cal.App.4th at p. 405 [“To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder.”]; Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336 (“Worsham”) [statutory definition of “neglect” refers to failure to provide medical care, not the negligent undertaking of medical services.])
Defendant identifies the following five subject matters upon which Plaintiffs appear to base their elder abuse claim: (1) the fall; (2) shortness of breath; (3) withholding of pain medication; (4) administration of Seroquel; (5) understaffing; and (6) regulatory violations. Defendant asserts none of these bases supports a claim for elder abuse.
First, Defendant contends the fall cannot serve as a basis for pleading an elder abuse claim because Plaintiffs do not allege any specific facts reflecting how or why the Decedent fell. Defendant’s argument is well-taken. For example, they do not plead how he fell or that the Decedent sustained any injury as a result of this fall. Therefore, Plaintiffs do not adequately plead the fall may serve as a basis for the elder abuse claim because they fail to plead the circumstances of the fall with the requisite specificity. (See Covenant Care, supra, 32 Cal.4th at p. 790.)

Second, Defendant persuasively argues the allegation the Decedent suffered shortness of breath does not constitute elder abuse. Plaintiffs do not address this argument in opposition. The allegation that the Decedent suffered shortness of breath and then was transferred to the acute care hospital does not reflect elder abuse. There are no allegations suggesting why the Decedent began suffering shortness of breath or describing any act Defendant undertook that resulted in the shortness of breath. This allegation appears to simply be an identification of a medical issue rather than a basis for the elder abuse claim. Therefore, the allegation the Decedent suffered shortness of breath does not reflect a violation of the Act.

Third, Defendant contends the alleged withholding of pain medication is not a basis for an elder abuse claim because Plaintiffs fail to allege the moaning and restlessness was due to pain, the staff knew the alleged restlessness and moaning was caused by pain, and the staff allowed him to remain in pain in conscious disregard of his rights. Defendant asserts these are specific facts which must be alleged. Defendant additionally argues understaffing is merely negligence rather than elder abuse.

In opposition, Plaintiffs insist they adequately plead a nexus between the Decedent’s restlessness and moaning and his pain. They additionally contend they allege sufficient facts reflecting the staff knew the Decedent was in pain, yet did not administer pain medication. Plaintiffs’ position is problematic because they explicitly plead “[t]he failure to provide pain relief medication was the direct result of understaffing and undertraining.” (TAC, ¶ 20.) As discussed in depth in the prior Order, understaffing is not a basis for finding reckless neglect, but rather may support only allegations of an undertaking to provide medical services, which falls under professional or general negligence. (See Worsham, supra, 226 Cal.App.4th at p. 336.) Because the withholding of pain medication is predicated on understaffing and undertraining, it does not reflect Defendant acted recklessly.

Fourth, Defendant asserts Plaintiffs inadequately plead the administration of Seroquel constitutes elder abuse because the allegations in the TAC that Defendant caused the Decedent to be prescribed Seroquel to chemically restrain him are a sham and should be disregarded. Defendant contends that even if the allegations were considered by the Court, they do not reflect elder abuse.
As to the issue of sham pleading, under the sham pleading doctrine, a court may admit the truth of facts in a superseded pleading if allegations in an amended pleading contradict or are clearly inconsistent with the previous allegations to avoid attacks raised by earlier demurrers or motions for summary judgment. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 606; Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426.) Any inconsistency with a prior complaint must be explained, otherwise courts may ignore the inconsistent allegation. (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.) The purpose of this doctrine is to enable courts to prevent an abuse of process, and not to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts. (Deveny v. Entropin, Inc., supra, 139 Cal.App.4th at p. 426.)

Defendant’s assertion the allegation Seroquel was prescribed to chemically restrain the Decedent is a sham pleading is misplaced for two reasons. First, the prior demurrer was not sustained on the basis Plaintiffs alleged Defendant “caused [the Decedent] to be prescribed” Seroquel. The Order stated the allegation the Decedent was given unnecessary medication was too broad to support a claim for elder abuse. Therefore, the allegations in the TAC are not an attempt to avoid an attack on a specific allegation in an earlier demurrer. Next, the allegation “Defendants . . . caused [the Decedent] to be prescribed the antipsychotic Seroquel, 25 mg” when there was no indication he needed it (FAC, ¶ 19) is not inconsistent with the allegations that while he was under Defendant’s care, he was “prescribed” the drug in order to chemically restrain him (TAC, ¶¶ 22-25). Inconsistent allegations actually contradict earlier statements. (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384 [finding an allegation inconsistent when the plaintiff first pleaded he was injured on the sidewalk, then after a demurrer was sustained on that basis, alleged he was injured inside a store].) The allegations in the TAC do not conflict with the prior allegations; rather they expound upon why Seroquel was administered in the first instance. The allegations in the TAC appear to be an attempt to cure the defects of the FAC—that the pleading lacked particularity. The FAC already alleged medication (though not identified as Seroquel) was administered to render the Decedent more sedate and less trouble to treat. (FAC, ¶ 24.) The new allegations restate this allegation and simply identify the drug as Seroquel. Therefore, the allegations Seroquel was administered to chemically restrain the Decedent will not be omitted from the pleading.

Even considering the allegations Seroquel was administered to chemically restrain the Decedent, Defendant asserts they are inadequately pleaded because the administration of a prescribed drug is not a reckless neglect under the Act. As discussed by this Court in the prior Order, a claim for reckless neglect must be predicated on the failure to provide medical care, not the negligent undertaking of medical services. (See Worsham, supra, 226 Cal.App.4th at p. 336.) The allegation Defendant administered an unnecessary drug does not amount to reckless neglect because it describes the negligent undertaking of providing medical services and not a failure to provide necessary medical care. Administering improper care constitutes a claim for professional malpractice, not elder abuse. (See Carter, supra, 198 Cal.App.4th at p. 408 [failing to find the correct endotracheal tube size and subsequently using the wrong size did not constitute elder abuse].) Therefore, the allegation Defendant unnecessarily administered Seroquel is insufficient to state a claim for elder abuse.
Fifth, the general allegation of understaffing does not support an elder abuse claim. As discussed thoroughly in the prior Order, allegations of failing to provide adequate staffing demonstrates Defendant’s negligence in the undertaking of medical services, not a fundamental failure to provide medical care for physical and mental health needs. (See Worsham, supra, 226 Cal.App.4th at p. 338.) Therefore, the fact Defendant’s facility was understaffed does not support a claim for elder abuse.

Last, Defendant asserts the alleged state and federal regulatory violations do not constitute a cause of action for elder abuse because they are not pleaded with requisite specificity. The Court previously sustained the demurrer to the FAC on the basis that the state and federal regulatory violations were not pleaded with requisite specificity and did not reflect any acts amounting to elder abuse. Here, the allegations in the TAC repeat almost verbatim the allegations of the FAC and continue to describe either professional negligence, the negligent undertaking of medical care, or simple or gross negligence, and are still not pleaded with the necessary specificity to support a statutory claim. As discussed above, the allegations in the TAC do not otherwise support an elder abuse claim, and thus the state and federal regulatory violations based on such allegations similarly do not state a claim. Therefore, the alleged state and regulatory violations do not reflect a violation of the Act.

In light of the above, the demurrer to the only cause of action is SUSTAINED without leave to amend. Plaintiffs fail to allege any violations of the Act with particularity and only describe acts amounting to professional negligence, the negligent undertaking of medical care, or simple or gross negligence. In addition, leave to amend the first cause of action is denied because the lack of any material changes in the allegations from the original complaint to the TAC indicates Plaintiffs are unable to plead sufficient facts to support an elder abuse claim. Further, the opposition does not offer any suggestion of how the elder abuse claim could be further amended that address the deficiencies identified by this Court in this Order. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading].)

II. Motion to Strike

As the only cause of action has been eliminated by this Court’s ruling on the demurrer, the motion to strike the request for punitive damages is MOOT.