2017-00216275-CU-MM

Robert Darosa vs. The Regents of the University of Californi

Nature of Proceeding: Motion to Strike the 2nd Amended Complaint

Filed By: Samuel, Bianca S.

NOTICE: Due to a labor dispute, it is possible that the Law and Motion Division of the Sacramento County Superior Court will be unable to provide court reporting services on 12/12/18. Any party desiring a transcribed hearing is invited to secure an outside court reporter for a hearing on 12/12/18, and to inform the Department 53 Clerk of the same when oral argument is requested pursuant to Local Rule 1.06. In the alternative, Department 53 will honor requests to continue hearings scheduled for 12/12/18 so that parties desiring oral argument may obtain court reporting services through the Court’s normal channels. (See Local Rule 1.12.) No hearings, however, will be continued to any date from 12/21/18 through 1/07/19. Any party seeking a continuance must first meet and confer with opposing counsel (or the opposing self-represented party) and then, no later than 4:00PM today, telephone the Department 53 Clerk with their request for a new date.

Defendant Sunbride Brittany Rehabilitation Center dba American River Center’s (“ARC”) motion to strike portions of Plaintiffs Robert DaRosa, et al.’s second amended complaint is denied.

This matter was continued from November 8, 2018 to allow ARC to comply with CCP § 435.5. It has now done so.

ARC moves to strike Plaintiffs’ requests for enhanced remedies under the Elder Abuse Act, attorneys’ fees and costs, and punitive damages, based entirely on the argument that Plaintiffs have failed to allege an elder abuse cause of action. Given that the

demurrer to the elder abuse cause of action was overruled, the motion to strike must be denied.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.

Item 2 2017-00216275-CU-MM

Robert Darosa vs. The Regents of the University of Californi

Nature of Proceeding: Hearing on Demurrer to the 2nd Amended Complaint

Filed By: Samuel, Bianca S.

NOTICE: Due to a labor dispute, it is possible that the Law and Motion Division of the Sacramento County Superior Court will be unable to provide court reporting services on 12/12/18. Any party desiring a transcribed hearing is invited to secure an outside court reporter for a hearing on 12/12/18, and to inform the Department 53 Clerk of the same when oral argument is requested pursuant to Local Rule 1.06. In the alternative, Department 53 will honor requests to continue hearings scheduled for 12/12/18 so that parties desiring oral argument may obtain court reporting services through the Court’s normal channels. (See Local Rule 1.12.) No hearings, however, will be continued to any date from 12/21/18 through 1/07/19. Any party seeking a continuance must first meet and confer with opposing counsel (or the opposing self-represented party) and then, no later than 4:00PM today, telephone the Department 53 Clerk with their request for a new date.

Defendant Sunbride Brittany Rehabilitation Center dba American River Center’s (“ARC”) demurrer to Plaintiffs Robert DaRosa, et al.’s second amended complaint is ruled upon as follows.

This matter was continued from November 8, 2018 to allow ARC to comply with CCP § 430.41. It has now done so.

In this elder abuse action, Plaintiffs allege causes of action for elder abuse, IIED, NIED, and loss of consortium against numerous defendants. The claims against ARC arise out of the decedent Robert DaRosa’s residency at ARC between October 25, 2017 and November 9, 2017.

Demurrer

First Cause of Action (Elder Abuse)

ARC’s demurrer is overruled.

Neglect under the Act is not negligence in the undertaking of medical services, but rather concerns the fundamental failure to provide custodial care. (Delaney v. Baker (1999) 20 Cal.4th 23, 34.) Neglect includes only “acts of egregious abuse.” (Id. at 35.) The high standard imposed by W&I § 15657 protects health care providers from liability under the statute “for acts of simple or even gross negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785.) Recklessness under the Elder Abuse 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 other involved in it.’” (Delaney, supra, 20 Cal.4th at 31-32.) As noted in Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal. 4th 148, the Elder Abuse

Act‘s heightened remedies are available only in limited circumstances. A plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse under section 15610.63 or neglect under section 15610.57, and that the defendant committed the abuse with “recklessness, oppression, fraud, or malice.” (§ 15657.) Neglect includes, among other things, the failure to assist in personal hygiene, the failure to provide medical care for physical and mental needs, the failure to protect from health and safety hazards, and the failure to prevent malnutrition or dehydration. (Welf. & Inst. Code § 15610.57(b) [emphasis added].) As correctly pointed out by Defendant, Elder Abuse claims must be pled “with particularity.” (E.g., Covenant Care, Inc., supra, 32 Cal.4th at 790 [analyzing the Elder Abuse Act and recognizing general rule that statutory causes of action must be pleaded with particularity].)

According to ARC, Plaintiffs’ pleaded elder abuse claim lacks specificity and is nothing more than negligence. It argues that there are no specific injuries suffered by the Decedent during his stay at ARC, the dates the injuries occurred, or the names of any employees whose alleged misconduct caused any injuries. The Court disagrees.

First, of course, the Court must assume the truth of the allegations as true for purposes of demurrer and give “the complaint a reasonable interpretation by reading it as a whole and its parts in their context [citation].” (Silberg v. Anderson (1990) 50 Cal.3d 205, 210.) A summary of Plaintiffs’ allegations demonstrates that they have pled, with specificity, a cause of action under the Act. Plaintiffs allege that the Decedent was transferred from Mercy San Juan Medical Center to ARC on October 25, 2017 for rehab and nursing care. (SAC ¶ 45.) Plaintiffs allege he was discharged from Mercy despite the fact that his knee was swollen, red and warm to the touch and was not given a full infection evaluation and no care plan was provided. (Id. ¶ 46.) He also allegedly had a decubitus ulcer when he arrived at ARC. (Id.) Plaintiffs allege that while at ARC the swelling in the Decedent’s knee increased and the knee became hot to the touch. (Id. ¶ 47.) Mrs. DaRosa allegedly continually told nursing staff that something needed to be done but was dismissed by the Director of Nurses and “told that she had 99 other patients to care for.” The Director of Nurses and staff allegedly refused to call for a consult or evaluate the Decedent’s knee for several days. (Id.) Plaintiffs allege that Dr. Yusufzai eventually evaluated the Decedent and ordered a sonogram of the left knee which occurred on October 31, 2017. (Id. ¶ 48.) The x-ray showed fluid on the knee. Dr. Yusufzai ordered a contrast CT but it was not scheduled until November 14, 2017. ARC allegedly refused to transport the Decedent to the hospital despite his family’s pleas. (Id.) On October 1, 2017, Plaintiffs allege that Mrs. DaRosa went to ARC’s Director of Admissions, Michelle Johnson, and requested that she and the Director of Nurses look at the Decedent’s leg as it was more swollen and extremely hot to the touch. (Id. ¶ 49.) After multiple attempts to have them evaluate the Decedent, Mrs. DaRosa was referred to Erin, the Director of Nursing. (Id.) Erin was allegedly dismissive and condescending and told Mrs. DaRosa that the attending nurse had already “looked at it.” Ms. DaRosa then informed Erin that the Physician’s Assistant at Mercy told her that if an infection got to Mr. DaRosa’s joint surgery would be required and that Mr. DaRosa’s knee was very swollen and hot to the touch. Erin allegedly told Mrs. DaRosa “that is why we have charge nurses,” that she had 99 other patients to care for and dismissed her concerns. (Id.)

In late October/early November, the Decedent was in extreme pain from his knee and called a nurse for pain medication and wrote the dose and time on his personal white board. (SAC ¶ 50.) The nurse threatened that if he wrote down what he was taking they would take away his pain medication. (Id.) Between October 25 and October 31, 2017, the Jobs Corps brought nurse trainees to ARC to assist and teach about patient care. They visited the Decedent. The LVN in charge of the nurse trainees noticed the condition of the Decedent’s knee and reported the same to ARC nursing staff. (Id. ¶ 51.) On October 31, 2017 or November 1, 2017, the Job Corp instructor was told by the Director of Nursing that they could no longer go in the Decedent’s room as ARC believed he was planning a lawsuit and was concerned the nurse trainees would do something wrong. (Id. ¶ 52.) The instructor was also told that it was not her place to advise patients or their families as she had apparently told the DaRosas that they had a right to a second opinion regarding the Decedent’s knee. (Id. ¶ 53.) The instructor was allegedly also told not to report her concerns regarding the Decedent’s knee to charge nurses. The instructor had reported her concerns regarding the Decedent’s knee on three occasions and was ignored and told to stay out of it. (Id.)

On November 1, 2018, Mrs. DaRosa reported the above incident to ARC’s Executive Director. The Executive Director allegedly told Mrs. DaRosa not to write a letter reporting the Director of Nurses and asked her what she wanted done for the Decedent. Mrs. DaRosa said all she wanted the whole time was to have him evaluated by a doctor, preferably the same one whose assistant aspirated his knee at Mercy. (Id. ¶ 54.) The Executive Director agreed and scheduled an appointment for November 9, 2017. When the Decedent appeared for his appointment, he was immediately sent to the emergency room at Mercy and the doctors stated that his condition was not good. (Id. ¶ 55.) On November 10, 2017 the Decedent underwent surgery to have his knee cleaned out. That same day Mrs. DaRosa returned to ARC to get the Decedent’s glasses. The Admissions Director saw Mrs. DaRosa and called her into her office. She was surprised to hear the Decedent had surgery that morning and Mrs. DaRosa responded that his knee was infected and that if the Director of Nursing had acted he would have been cared for sooner. The Admissions Director allegedly laughed and said that “I’ve been telling them all along that you have been saying that since he’s been here.” (Id. ¶ 57.)

Plaintiffs allege that ARC refused medical evaluation or treatment of the Decedent despite obvious signs of infection and even refused to transport him to a facility that could evaluate and treat him. (SAC ¶ 112.) Plaintiff allege that ARC failed to have a plan of care for the Decedent despite knowing that he was discharged from Mercy on antibiotics and that if an infection got to his joint he needed to returned to the hospital for surgery. (Id. ¶ 117.) ARC allegedly did not have personnel trained to recognize infection or a plan to treat an infection and accepted the Decedent anyway knowing an infection could develop. (Id.)

Plaintiffs allege that ARC’s conduct was reckless and demonstrated a continued and pervasive lack of care in conscious disregard of the harm that would cause the Decedent. They allege that the Decedent’s knee became so infected that the later surgery and hospitalization could not prevent his death and that ARC’s conduct ultimately caused or contributed to his death on December 24, 2017. (SAC ¶¶ 124, 127, 128.)

The above allegations, at least for pleading purposes, are sufficient to plead reckless

neglect under the Elder Abuse Act. Whether Plaintiffs can prove these allegations, including whether ARC acted recklessly, is not relevant on this demurrer. Essentially, Plaintiffs have alleged that ARC ignored the Decedent’s worsening knee condition despite numerous pleas from Mrs. DaRosa and others. The allegations demonstrate that ARC staff refused to take action with respect to the Decedent’s swollen knee which was hot to the touch, dismissed concerns that the family and others raised, even telling others to stay out of it, and threatened to withhold pain medication. While ARC complains that names of employees are not included in the SAC, the case law does not require such exacting specificity and in any event, Plaintiffs have alleged the name of the Director of Nursing and also alleged job titles of ARC employees involved. Further, there are specific dates set forth regarding ARC’s conduct as set forth above. Plaintiffs have alleged that ARC ignored the Decedent and failed to provide necessary custodial care, and that it did so recklessly. The allegations are not conclusory, uncertain, or vague and do not simply involve professional negligence in rendering medical services but rather involve specific allegations of a fundamental failure to provide care for the decedent’s needs, failures which were adequately alleged to have been reckless.

While ARC cites other cases involving what might be labeled as even more egregious conduct, the above allegations are sufficient.

ARC also points to the fact that ¶ 125 of the SAC alleges that ARC “negligently failed” to provide care which it argues shows an absence of a viable Elder Abuse claim. Despite the inclusion of that allegation, the sum and substance of the allegations set forth above plainly set forth a viable cause of action for Elder Abuse at least at the pleading stage.

In sum, the demurrer to the Third Cause of Action is overruled.

Fourth Cause of Action (Loss of Consortium)

ARC’s demurrer is overruled. ARC argues that Mrs. DaRosa’s loss of consortium cause of action is duplicative of the seventh cause of action for wrongful death. This Court previously rejected this same argument when overruling Defendant Regents of the University of California’s demurrer to this cause of action based on the same argument.

Fifth Cause of Action (NIED)

ARC’s demurrer is overruled. To state a bystander NIED cause of action, facts supporting three elements must be alleged: (1) plaintiff was “closely related” to the injured victim; (2) plaintiff was present at the scene of the injury-producing event when it occurred and was then aware the event caused the victim injury; and (3) as a result, plaintiff suffered “serious” emotional distress. (Thing v. LaChusa (1989) 48 Cal.3d 644, 667-668.) Thus, under Thing, to recover for emotional distress, a bystander must be present at the scene of the injury-producing event when it occurs and be contemporaneously aware it was causing injury. Thing v La Chusa, supra, at pp. 660-662.

In the case of Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal.App.4th 926, the second element is further explained as requiring that the plaintiff “be aware of the connection between the injury-producing event and the injury.” (Id. at 934 (citation

omitted.)) Second, the plaintiff must be able to understand, under the law, the negligence involved. In the context of medical care, Morton emphasizes that standard of care for the acts of medical providers “is a matter peculiarly within the knowledge of experts” with limited exceptions “within the common knowledge of the layman.” (Id. at 935 (citation omitted.)) Thus, even though a plaintiff “knows when his or her [family member] is in need of medical attention,” he or she “does not, in the eyes of the law, know of the injury-causing effects of that treatment.” (Id. at 934.) Nor can the plaintiff determine that any distress being experienced by their loved one is caused by medical negligence.

In Bird v. Saenz (2002) 28 Cal.4th 910, the adult daughters brought an NIED claim after their mother’s death. (Id. at 912.) Their mother presented to the defendants to have a catheter inserted for chemotherapy. (Id.) During the procedure, the defendants nicked an artery. (Id. at 913.) In an effort to circumvent the contemporaneous awareness requirement for an NIED claim, the daughters alleged that the “injury-producing event” was not the surgery itself, but rather the postoperative failure to diagnose and treat the damaged artery. (Id. at 914.) The Court found summary judgment appropriate because the “plaintiffs could not meaningfully have perceived any such failure [in medical care].” (Id.) Specifically, the Court found that “[e]ven if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate.” (Id.)

And in Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, the parents of a child with curable cancer watched as he underwent radiation therapy. That the child had been lethally overexposed was not discovered until later, when he developed symptoms of radiation poisoning. While the plaintiffs had observed the procedure that was later determined to have been an injury-producing event, they were not then aware the treatment was causing injury. Addressing the second requirement of Thing, supra, 48 Cal. 3d 644, 668, the plaintiffs argued “that since radiation is invisible its fatal dosage cannot be seen, and it is unjust to deny them recovery based on rules having their origins in fact patterns involving visible events such as accidents. Were it not for Thing,” the Golstein court reasoned, the plaintiffs “would have a compelling case. However, courts have interpreted Thing’s policy statement as a requirement that NIED plaintiffs experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury. As the Supreme Court stated the rule in Thing, the plaintiff must be ‘present at the scene of the injury-producing event at the time it occurs and . . . then aware that it is causing injury to the victim . . . .’ ” (Golstein, supra, at pp. 1427-1428, fns. omitted, quoting Thing, supra, at p. 668.)

In a footnote, the court in Golstein, supra, 223 Cal. App. 3d 1415, observed that it had “repeatedly asked [plaintiffs’] counsel at oral argument to present some analytical distinction between [the] case [of radiation overexposure] and the standard medical malpractice case, where the injury is typically witnessed by the plaintiff but the plaintiff does not see, or meaningfully comprehend, the actual injury-causing event. Counsel was unable to do so. We are reasonably certain the Supreme Court would not accept a conclusion which could apply [NIED] recovery almost automatically to a medical malpractice plaintiff who observes only the suffering of the victim and not the actual event that causes that suffering.” (Id. at p. 1427, fn. 3.)

ARC argues that the cause of action fails due to a lack of contemporaneous observation and understating that an event caused injury to the Decedent. The Court

disagrees. Mrs. DaRosa allegedly was “previously a nurse assistant” with a “general understanding of medicine, basic nursing skills, and infections” and that she specifically recognized the signs of her husband’s infection and witnessed her husband’s suffering after her requests for treatment of the infection went ignored. (SAC ¶ 134, 144.) Mrs. DaRosa and Lindsay DaRosa are both alleged to have recognized signs of infection (swelling, redness, hot to the touch) and had been warned by staff at Mercy before he was admitted at ARC that if an infection got into the Decedent’s knee that surgical intervention would be required. It is alleged that they personally witnessed the “obvious signs of infection” in the Decedent’s knee while he was at ARC. (SAC ¶¶ 145, 147.) It is alleged that having recognized the signs of infection they urged ARC staff to evaluate the Decedent’s knee yet were ignored as were the Decedent’s complaints of pain. (SAC ¶¶ 145, 147.) It is alleged that they watched the Decedent suffer as the infection got worse and they knew in light of the instructions from Mercy that the failure to take action regarding his knee would lead to further harm. (Id.)

The Court finds that the above allegations are sufficient as against ARC. While ARC argues that the Plaintiffs have alleged only the amorphous event of a “failure to treat,” as the allegations above show, they have alleged a specific failure to treat an infection which they recognized and which they were warned would require surgical intervention if it occurred. The facts are sufficiently analogous to those in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165 where it was held that the parent of deceased child adequately pleaded a cause of action for NIED where parent observed her child suffer severe fever, hallucinations, complaints of excruciating pain, coughing up blood and other apparent symptoms while the real parties in interest doctors for the county failed to respond to parent’s pleas for medical intervention. (Id.; see also Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 490.)

The demurrer is overruled.

Sixth Cause of Action (IIED-By the Decedent only)

ARC’s demurrer is overruled. “A cause of action for [IIED] exists where there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) Conduct is only “extreme and outrageous” when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster,(1982) 32 Cal. 3d 197.) The Court may, as a threshold matter, determine whether the alleged conduct rises to the level of “extreme and outrageous.” (Bock v. Hanssen (2014) 225 Cal.App.4th 215, 235; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534. [“Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.”]) “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous as to result in liability.” (Alcon v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) Conduct is considered extreme and outrageous if when recited “to an average member of the community [c]ould arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)

In the medical context, “[ordinarily, a medical diagnosis and treatment advice will not be considered outrageous unless they are false and given in bad faith.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533 (citation omitted.))

ARC argues in a brief four line paragraph that none of the elements are adequately alleged. ARC does not analyze the actual allegations in any meaningful matter. It is alleged that ARC failed to have a care plan for the Decedent, refused medical treatment, refused to have a doctor see and evaluate the Decedent’s obviously infected knee as it was getting worse, refused to evaluate his bruised and swollen foot and refused to transport him to a hospital for further evaluation of his infected knee. (SAC ¶ 154.) It is further alleged that ARC’s conduct demonstrates a pattern and practice evidencing an intent to cause physical and extreme emotional distress. (Id.) While the Court might agree that these allegations alone are not sufficient, the cause of action incorporates all of the SAC’s previous allegations, including those set forth above regarding the elder abuse claim. (SAC ¶ 149.) As extensively summarized above, it has been alleged that ARC ignored the Decedent despite his worsening knee infection and despite knowledge that an infection would require surgical intervention, and that ARC threatened to withhold pain medication from the Decedent if he kept track of what medication he was given and when. It was also alleged that while the Decedent enjoyed the company of the nurse trainees, ARC excluded them from seeing him and even warned them not to report concerns regarding his knee. These allegations combined with those in the Sixth Cause of Action are sufficient for pleading purposes. Reasonable people could differ as to whether the conduct is extreme and outrageous and thus this is a question for the trier of fact. Further, the allegations sufficiently allege intent.

The demurrer is overruled.

Given the above, the Court need not rule on Plaintiffs’ argument that the demurrer was untimely.

ARC shall file and serve its answer no later than December 24, 2018. The Court is aware that it previously sustained the Regents and Dr. Rolando Roberto’s demurrer to the SAC and gave Plaintiffs until October 26, 2018 to file a third amended complaint. The parties, however, agreed to delay filing of the third amended complaint until the instant demurrer was resolved. Here, given that ARC’s demurrer is overruled, any third amended complaint filed in response to the Court’s previous ruling on the Regents’ demurrer will not change the allegations with respect to ARC. As a result, to the extent that ARC files its answer before the third amended complaint is filed, that answer shall be deemed an answer to the third amended complaint. Alternatively, ARC may choose to wait to file its answer until the third amended complaint is filed. In that situation ARC shall file and serve its answer within 10 days of service of the third amended complaint.