Case Number: BC550874 Hearing Date: February 08, 2018 Dept: J

Re: Concepcion Punsalan, etc., et al. v. Doctors Hospital of West Covina, Inc., et al. (BC550874)

MOTION FOR SUMMARY ADJUDICATION

Moving Party: Defendant Doctors Hospital of West Covina, Inc.

Respondents: Plaintiffs Concepcion Punsalan, heir to decedent Manuel Cano Punsalan, and Concepcion Punsalan, Joel Punsalan and Mariel Punsalan, individually

POS: Moving OK; Opposing OK; Reply OK

This is a wrongful death action brought by the surviving spouse and children of the decedent against the doctors and hospital that provided medical care to the decedent. Plaintiffs commenced this action on 7/8/14. The Second Amended Complaint (“SAC”), filed on 9/28/15, asserts causes of action for:

Violation of Elder Abuse & Dependent Adult Civil Protection Act
Violation of Patient Bill of Rights
Wrongful Death

On 6/22/17, plaintiffs filed an Amendment to Complaint, wherein Albert Paras, R.N. (“Paras”) was named in lieu of Doe 3. On 10/3/17, Paras’ demurrer to the SAC was sustained without leave to amend. The Final Status Conference is set for 3/5/18. A jury trial is set for 3/13/18.

Defendant Doctors Hospital of West Covina, Inc. (“defendant”) moves, per CCP § 437c, granting it summary adjudication in its favor against plaintiffs, as follows:

Issue #1: Plaintiffs’ first cause of action (i.e., for Violation of Elder Abuse & Dependent Adult Civil Protection Act) fails;

Issue #2: Plaintiffs’ second cause of action (i.e., for Patient’s Bill of Rights Violations) fails;

Issue #3: Plaintiffs’ prayer for pain and suffering under Welfare & Institutions Code § 15657 fails;

Issue #4: Plaintiffs’ prayer for attorneys’ fees under Welfare & Institutions Code § 15657 fails; and

Issue #5: Plaintiffs’ prayer for punitive damages under Civil Code § 3294 fails.

At the outset, defendant submitted Exhibit “E” on a password-protected disk according to the court’s data systems analyst, which the court was not able to access. The court elects to entertain the merits of the motion notwithstanding same, as consideration of these documents was not germane to its analysis.

REQUEST FOR JUDICIAL NOTICE:

Plaintiffs’ request for judicial notice is granted as to Exhibit “1” and denied as to Exhibits “2” and “3.”

EVIDENTIARY OBJECTIONS:

Plaintiffs’ Objections to the Declaration of Ryan Klein, M.D.:

1-5. Overruled

6. Sustained

7-8. Overruled

9-10. Sustained

11-13. Overruled

Defendant’s Objections to the Declarations of Joel Feinstein, M.D. and Phyllis McGregor, R.N., MBA, PhD.:

Counsel for defendant is admonished for failure to comply with CRC 3.1354 (“Each written objection must be numbered consecutively and must . . . Quote or set forth the objectionable statement or material.”) The objections are overruled.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2).

Again, defendant seeks summary adjudication on plaintiff’s first and second causes of action, for Patient’s Bill of Rights Violations and Violation of Elder Abuse & Dependent Adult Civil Protection Act, against defendant. Defendant also seeks summary adjudication on plaintiffs’ prayers for pain and suffering under Welfare & Institutions (“W&I”) Code § 15657, attorneys’ fees under W&I Code § 15657 and punitive damages under Civil Code § 3294.

“The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’ (Welf. & Inst. Code, § 15610.27).” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404. “Abuse of an elder or a dependent adult” includes: (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” W&I Code § 15610.07(a). “Physical abuse” “means any of the following: (a) Assault… (b) Battery…(d) Unreasonable physical constraint, or prolonged or continual deprivation of food or water… (f) Use of a physical or chemical restraint or psychotropic medication under any of the following conditions: (1) For punishment. (2) For a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the State of California, who is providing medical care to the elder or dependent adult at the time the instructions are given. (3) For any purpose not authorized by the physician and surgeon.” W&I Code § 15610.63. “Neglect” is “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” W&I Code § 15610.57(a). “Neglect” includes the “[f]ailure to provide medical care for physical and mental health needs.” W&I Code § 15610.57(b(2). “Abandonment” “means the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.” W&I Code § 15610.05.

“The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.” W&I Code § 15657(c). Civil Code § 3294(b), in turn, provides that “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendant contends that it is entitled to adjudication of the elder abuse cause of action because there is no evidence that it neglected or abused decedent. Defendant further contends that plaintiffs cannot provide that there was authorization and/or ratification of egregious misconduct by one of its officers, directors or managing agents. Defendant presents the expert declaration of Dr. Klein in support of this former contention; Klein’s opinions, however, are largely conclusory and are rebutted by plaintiffs’ expert, Joel D. Feinstein, M.D. (“Feinstein”), who opines, inter alia, that (1) Dr. Gugga breached the standard of care by acting as decedent’s primary care physician while at the same time acting as defendant’s Assistant Medical Director and as primary owner of defendant and failing to disclose same to decedent’s wife, (2) Gugga breached the standard of care by permitting the resumption of G-tube feedings for decedent at defendant without first confirming by KUB x-ray that his new G-tube was correctly positioned in his stomach, (3) attempting to confirm by auscultation the correct location of a new G-tube that replaced a pulled-out 24-day old G-tube is not within the standard of care, if x-ray confirmation if available, (4) decedent’s symptoms documented by Gugga and defendant by 8:30 a.m. on 7/12/13 showed a serious change in his medical condition and called for an emergency response, which defendant and Gugga withheld, (5) Gugga and defendant breached a duty to notify Kaiser of any significant changes in decedent’s condition, (6) Gugga, as defendant’s Assistant Medical Director, had the responsibility of formulating and implementing defendant’s policies and practices regarding the care and treatment of dislodged G-tubes, but “reckless[ly]” failed to adopt safe one, which was a substantial factor in causing decedent’s death and that (7) Gugga had no medical reason to withhold a KUB x-ray and such a decision was, in fact, “reckless and…knowingly exposed [decedent] to the perilous risk of leakage, sepsis, peritonitis, septic shock and death.” Feinstein points out that in July 2013 defendant provided radiology services to its sub-acute skilled nursing residents, that x-ray technicians employed by defendant were available from 5 a.m. to 5 p.m., Monday through Fridays, and that x-ray technicians were otherwise available on an “on-call” basis. (Feinstein Decl., 23:10-16). He notes that the costs for x-ray films and x-ray technician services were absorbed and incurred by defendant, and could not be passed on or billed to Kaiser, or to the resident-Kaiser member, under the Health Services Contract between defendant and Kaiser. (Id., 23:17-20). He conjectures that, “[g]iven the total absence of any legitimate medical reason to withhold the KUB on the evening of the 11th, a reasonable inference may be drawn under these circumstances that Dr. Gugga’s decision to say ‘no KUB’ to the nurses, was motivated by other concerns and considerations, including the cost of having to pay overtime wage scale to the x-ray technician on-call that evening.” (Id. Decl., 38:25-39:2). Triable issues of fact remain in this regard.

Defendant’s authorization/ratification contention also fails. Gugga had an ownership interest in defendant as of 2013. (Dourian Decl., ¶ 6, Exhibit “44,” 29:23-32:25). In 2013, Gugga was also on defendant’s governing board and was defendant’s secretary and Assistant Medical Director. (Id., 37:18-38:21; 40:19-23). For these reasons, defendant’s request for summary adjudication of its prayers for pre-death pain and suffering, attorneys’ fees and punitive damages fail.

Defendant is likewise not entitled to summary adjudication of plaintiffs’ cause of action for Violation of Patient Bill of Rights. “A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in the Patients Bill of Rights in Section 72527 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees. The licensee shall be liable for up to five hundred dollars ($500), and for costs and attorney fees, and may be enjoined from permitting the violation to continue. An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy.” Health & Safety Code § 1430(b). Under Title 11 California Code of Regulations § 72527, those patient rights include the right “[t]o be free from mental and physical abuse” and “[t]o be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care of personal needs.” There remain triable issues of material fact, as noted above.

Defendant’s motion is denied in its entirety.