Vincent Messina v. Olympia Medical Center

Case Number: BC527722    Hearing Date: October 20, 2014    Dept: 32
CASE NAME: Vincent Messina v. Olympia Medical Center
CASE NO.: BC527722
HEARING DATE: 10/20/14
DEPARTMENT: 32
SUBJECT: (1) Demurrer of Defendant Olympia Medical Center to First Amended Complaint
(2) Motion to Strike of Defendant Olympia Medical Center
(3) Demurrer of Defendant The Rehabilitation Centre of Beverly Hills, Inc. to First Amended Complaint
(4) Motion to Strike of Defendant The Rehabilitation Centre of Beverly Hills, Inc.
MOVING PARTY: (1), (2) Defendant Olympia Medical Center; (3), (4) Defendant The Rehabilitation Centre of Beverly Hills, Inc.
RESP. PARTY: (1)-(4) Vincent Messina

TENTATIVE RULING

Demurrer of Defendant Olympia Medical Center to First Amended Complaint OVERRULED as to first cause of action (elder abuse).

Motion to Strike of Defendant Olympia Medical Center DENIED.

Demurrer of Defendant The Rehabilitation Centre of Beverly Hills, Inc. to First Amended Complaint:

First Cause of Action (elder abuse) OVERRULED.

Third Cause of Action (violation of patient rights (pursuant to H & S Code § 1430(b)) OVERRULED.

Demurrer for Uncertainty to Third Cause of Action OVERRULED.

Motion to Strike of Defendant The Rehabilitation Centre of Beverly Hills, Inc. GRANTED WITHOUT LEAVE TO AMEND as to the phrase “for each violation of Patient Rights committed by Rehab’s employees as established at trial, in the amount of $500.” (FAC p. 11, lines 9-10.) DENIED in all other respects.

ANALYSIS

Demurrer of Defendant Olympia Medical Center

Defendant demurs to the first cause of action for Elder Abuse for failure to state a claim.

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action stated therein. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.App.4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

To prevail on a claim under the Elder Abuse Defendant Adult Civil Protection Act (EADACP), “the plaintiff must establish recklessness, oppression, fraud, or malice in the commission of this abuse by clear and convincing evidence. ‘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.” (Mack v. Soung (2000) 80 Cal.App.4th 966, 972 [citations and internal quotes omitted].)

“Our Supreme Court teaches that neglect under the Act ‘refers not to the substandard performance of medical services 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.’ [Citation.] Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.]’” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 89, citing Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771.)

Allegations of Recklessness

According to the FAC, on June 18th, 2013, Messina entered Olympia for left total knee arthroplasty. Upon admission to Olympia Medical Center, Messina had no pressure ulcers or history of pressure ulcers. On June 18th, 2013, June 19th, 2013, June 20th, 2013, June 21st, 2013, Olympia nursing staff failed to monitor and inspect Messina’s skin for compromised integrity. On June 18th, 2013, June 19th, 2013, June 20th, 2013, June 21st, 2013, Olympia nursing staff failed to reposition Messina every two-hours as required. Furthermore, throughout the entirety of Messina’s stay, Olympia nursing staff failed to document the existence and care plan for Messina’s sacral pressure ulcer. (FAC ¶¶ 7-9.)

In the recent case Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336), cited by Defendant, the Court of Appeal affirmed the trial court’s order sustaining a demurrer to an elder abuse claim without leave to amend. The plaintiff, who had undergone surgery to treat a fractured hip, fell in a hospital’s transitional care unit and broke her arm and re-broke her hip. The plaintiff alleged that the unit was understaffed and undertrained, and that this caused the fall. The Court of Appeal held that the allegations demonstrated “negligence in the undertaking of medical services, not a ‘fundamental ‘[f]ailure to provide medical care for physical and mental health needs.’” (Id. at 338.)

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, cited by Plaintiff, the Court of Appeal found that triable issues existed on an elder abuse claim dismissed on summary adjudication. The plaintiff decedent, who suffered Huntington’s chorea disease, acquired pressure ulcers at the defendant’s facility, which eventually caused her death. The Court of Appeal concluded that there was evidence that the defendants failed to follow a care plan for maintaining the health of the decedent’s skin.

As applicable here, the Sababin stated the following:

If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference. (Id. at 90.)

Based on this language from Sababin, Plaintiff has stated a cause of action for elder abuse against Olympia. Plaintiff alleges that Olympia failed to monitor Plaintiff’s skin for compromised integrity and failed to reposition Plaintiff every two hours for each day he was admitted to Olympia’s facility. The allegations suggest that Plaintiff developed a pressure ulcer as a result of this withholding of medical care. It can be inferred from the FAC that this type of monitoring and repositioning would be standard care for a patient such as Plaintiff. Therefore, the allegation that Olympia either withheld this care is sufficient, at the pleading stage, to establish recklessness.

Corporate Ratification

Defendant contends that Plaintiff has not alleged that Defendant’s wrongful conduct was authorized or ratified by an officer, director, or managing agent.

To allege an elder abuse claim against a corporate entity, Plaintiffs also must allege that an officer, director, or managing agent of the corporate defendant authorized, ratified, or consciously disregarded the known risks to decedent. (W & I Code §15657; Civ. Code § 3294.)

Plaintiff alleges that “Olympia officers, directors, and managing agents directly authorized that reckless neglect at issue by specifically knowing that Messina was being neglected by defendant personnel, allowing such neglect to continue to occur, and failing to take any action to prevent the reckless/malicious neglect from further occurring.” (FAC ¶ 21.) Plaintiff further alleges that Olympia’s managing agents used unsupervised, untrained and underpaid nursing staff to maximize profits, knowing that the practice posed a substantial threat to the patients. (FAC ¶31) Defendant cites no authorities holding that Plaintiff must plead the specific names or titles of these officers and directors, or that Plaintiff must plead evidentiary facts in support of this element of an elder abuse claim. (Dem. 12-13.) Plaintiff has provided sufficient ultimate facts to give Defendant notice.

The demurrer to the first cause of action is OVERRULED.

Motion to Strike of Defendant Olympia Medical Center

Defendant moves to strike the prayer for punitive damages and related allegations made in connection with Plaintiff’s elder abuse claim. “If it can be proved by clear and convincing evidence that such acts [of elder abuse] were committed with recklessness, oppression, fraud, or malice, the heightened remedies of section 15657 will apply.” (Mack, supra, 80 Cal.App.4th at 973.) As Defendants concede, punitive damages may be recovered under § 15657 when allegations of recklessness, oppression, fraud, or malice are made. For the reasons stated above as to the demurrer, the motion to strike is DENIED.

Demurrer of Defendant Rehabilitation Centre

Defendant demurs to the first cause of action for Elder Abuse and third cause of action for violation of patient rights for failure to state a claim based on the arguments discussed below. Defendant also demurs to the third cause of action for uncertainty.

First Cause of Action – Elder Abuse

Plaintiff alleges that following facts with respect to Rehabilitation Centre: Upon admission to Rehabilitation Centre of Beverly Hills (Rehab), Rehab nursing staff documented an “unable to determine” pressure ulcer measuring 3.0 cm x 3.0 cm on Messina’s sacral area. Rehab created a care plan for Plaintiff that required employees to minor Plaintiff’s skin at least two times daily and reposition Plaintiff every two hours. On numerous days throughout Messina’s residency at Rehab, nursing staff failed to monitor and inspect Messina’s skin for compromised integrity. By July 7, 2013, Messina’s sacral wound had progressed to a 4cm x 7cm Stage IV pressure ulcer with necrotic tissue and foul order. On July 8, 2013, Messina’s doctor ordered a wound culture and sensitivity for Messina’s sacral pressure ulcer. On July 11, 2013, Messina’s would culture and sensitivity results indicate that he has sacral cellulitus (a serious bacterial infection). (FAC ¶¶ 10-17.)

Here, as discussed above, the instant allegations are similar to the evidence at issue in Sababin. With respect to Defendant Rehabilitation Centre, Plaintiff has alleged that Defendant created a care plan for Plaintiff’s pressure ulcer and “on numerous days” failed to provide the required care. Sababin instructs that an elder abuse claim can stand if there is evidence of withholding of care, including if the Defendant provided the required care “sporadically.” Because Plaintiff alleges that the pressure ulcer worsened under Defendant’s care, it can be inferred that Defendant withheld the care required by the care plan. Thus, the allegations are sufficient to state a claim.

Defendant contends that Plaintiff has not alleged that Defendant’s wrongful conduct was authorized or ratified by an officer, director, or managing agent. Plaintiff makes identical allegations against Rehabilitation Centre as were discussed above for Olympia. (FAC ¶ 29.) For the reasons stated above, such allegations are sufficient.

The demurrer to the first cause of action is OVERRULED.

Third Cause of Action

Defendant contends that Plaintiff cannot state a cause of action pursuant to Health & Safety Code §1430(b) because such a cause of action may lie only when a state department has taken action and the violation has not been corrected. “By enacting section 1430, subdivision (b), the Legislature specifically authorized skilled nursing facility residents themselves to bring actions to remedy violations of their rights rather than forcing them to depend upon the CDPH to take action.” (Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, 623-624.) Based on this authority, the demurrer is unpersuasive. The language of § 1430(b) does not require pre-filing involvement by a state department. Defendant cites no case authorities or specific statutory language in support of the demurrer.

The demurrer to the third cause of action is OVERRULED.

Demurrer for Uncertainty to Third Cause of Action

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Defendant fails to show that the third cause of action is so uncertain that it cannot determine what issues are stated.

Defendant contends that Plaintiff improperly requests $500 for each violation of Patient’s Rights, while § 1430(b) allows only a single award of up to $500 to lawsuit. (See Dem. 8-9; see Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) 221 Cal.App.4th 102, 128-129.) However, this allegation does not make the claim uncertain. Moreover, this argument is improper on demurrer because it only challenges a request for relief, and not an entire cause of action.

The demurrer for uncertainty is OVERRULED.

Motion to Strike of Defendant Rehabilitation Centre

Defendant contends that Plaintiff has not pleaded facts to support the requests for punitive damages in connection with the first cause of action, or attorney fees in connection with the first and third causes of action. As Defendant concedes, these requests are proper if Plaintiff states underlying causes of action for elder abuse and violation of patient rights (pursuant to H & S Code § 1430(b). For the reasons stated above as to the demurrer, the motion to strike is DENIED.

Defendant also contends that the Court should strike Plaintiff’s request for $500 for “each” violation of Health & Safety Code § 1430(b). Plaintiff did not respond to this argument in opposition. “The $500 maximum in section 1430, subdivision (b) applies per civil action rather than per violation.” (Nevarrez v. San Marino Skilled Nursing and Wellness Centre (2013) 221 Cal.App.4th 102, 137.) Accordingly, the motion to strike is GRANTED WITHOUT LEAVE TO AMEND as to the phrase “for each violation of Patient Rights committed by Rehab’s employees as established at trial, in the amount of $500.” (FAC p. 11, lines 9-10.)

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