Case Number: EC060256    Hearing Date: July 25, 2014    Dept: NCD

TENTATIVE RULING (7-25-14)
#5
EC 060256
KIBRICK v. LAKESIDE MEDICAL GROUP

Defendant Lakeside Medical Group, Inc.’s Demurrer to Plaintiffs’ [Corrected] Third Amended Complaint
Defendant Lakeside Medical Group, Inc.’s Motion to Strike Portions of Plaintiffs’ [Corrected] Third Amended Complaint

TENTATIVE:
Demurrer is OVERRULED.
The court notes, however, that the copy of the [Corrected] Third Amended Complaint filed with the court does not include attachments.

Motion to Strike is GRANTED without leave to amend at the concession of plaintiffs in their “Non-Opposition to Defendant Lakeside Medical Group’s Motion to Strike Portions of Plaintiffs’ [Corrected] Third Amended Complaint”

Ten days to answer.

RELIEF REQUESTED:
Demurrer
Sustain demurrer to fourth, fifth, sixth, and seventh causes of action of [Corrected] Third Amended Complaint

Motion to Strike
Strike allegation of willful and conscious disregard and prayer for pre-death pain and suffering

CAUSES OF ACTION: from [Corrected] Third Amended Complaint
3) Professional Negligence v. Providence, Issai, Kishineff
4) Wrongful Death v. All Defendants
5) Fraud/ Intentional Misrepresentation v. Providence, Lakeside, Healthnet
6) Violation of Civil Code § 3428 v. Lakeside, Healthnet
7) Breach of Written Contract v. Lakeside, Healthnet and Issai

SUMMARY OF FACTS:
The TAC is brought by plaintiffs Susan Kibrick and Jennifer Kirsch, individually and as successors in interest to decedent Carol Irene Stieber, alleging that on February 26, 2012, Stieber, who was 65 years old at the time, was wakened by pains and aching in her chest, called 911 and was transported to Providence St. Joseph Medical Center, and was evaluated by the emergency room physician, defendant Dr. Kishineff, to whom she reported she had been lifting heavy boxes. Dr. Kishineff noted in the chart that the pain was not exertional, and then contacted defendant Dr. Issai, a hospitalist, for help in planning future care. Dr. Kishineff recommended that Stieber undergo a stress echocardiogram, to rule out myocardial infarction, and that she undergo further observation and serial troponins. The TAC alleges that despite these recommendations defendants did not order any additional testing for Stieber, but diagnosed her with a muscle strain, discharged her, and made arrangements for her to see an outpatient cardiologist on a later date. When Stieber returned home, she again began experiencing chest pain, which soon became extreme and Stieber’s daughter called the Providence St. Joseph emergency room, and was instructed to call 911. Stieber was transported back to the hospital where she died the same day. The TAC alleges that defendants failed to operate and provide services in compliance with regulations, codes and accepted standards and principles. It is also alleged that defendants understaffed the hospital, knowing that such would pose a danger to patients such as decedent.

The file shows that on May 6, 2013, the court, Judge Beaudet presiding, sustained an unopposed demurrer brought by defendant Providence Health and Services Foundation without leave to amend.

Defendants Issai and Providence and Lakeside Medical Group filed demurrers and motions to strike the First Amended Complaint, which were heard on October 25, 2013. The court, Judge Doyle presiding, sustained the demurrers and granted the motions to strike for the reasons stated in the moving papers, with ten days leave to amend, in a detailed minute order.

On November 14, 2013, plaintiffs filed their Second Amended Complaint. On January 21, 2014, plaintiffs filed of a Request for Dismissal of the First, Second, Fifth, Sixth, Seventh and Eighth Causes of Action of the Complaint, which dismissal was entered on January 21, 2014.

On January 31, 2014, the court heard demurrers and motions to strike brought by various parties, including the moving party Lakeside Medical Group. The demurrer was sustained and motion to strike granted. The demurrer to the fourth cause of action for wrongful death was sustained with leave to amend. The demurrer to the fifth, sixth and seventh causes of action was sustained without leave to amend in light of the dismissal with prejudice by plaintiff of those causes of action. The motion to strike was granted without leave to amend on the ground the allegations at issue related to the dismissed causes of action.

On April 4, 2014, the court heard a motion by plaintiffs to set aside or modify the dismissals, on the ground plaintiffs had intended to dismiss the dismissed causes of action only as to Stephen Keshineff, M.D. The dismissal was vacated to the extent it applied to the other parties. Plaintiffs were permitted further leave to amend the pleading.

Defendant Lakeside Medical Group now challenges the sufficiency of the [Corrected] Third Amended Complaint.

ANALYSIS:
Demurrer
Fourth Cause of Action—Wrongful Death—Demurrer by Lakeside
The demurrer to this cause of action was previously sustained as follows:
“Demurrer of Lakeside Medical Group to fourth cause of action for wrongful death is SUSTAINED with one final opportunity to amend for the reasons stated in the moving papers. The cause of action, and the allegations remaining in the pleading following the dismissal of several causes of action, fail to sufficiently specify any duty or conduct amounting to breach of duty by this defendant which resulted in the alleged wrongful death.”

Lakeside argues that this cause of action still fails to allege that Lakeside owed any duty to plaintiffs’ decedent. The TAC alleges that “defendants named in this cause of action owed STIEBER statutory and common law duties.” [Para 35]. It is not alleged with precision how Lakeside owed any duty to decedent, and to the extent the cause of action is based on some statutory duty, it is ordinarily recognized that statutory claims must be pled with particularity. See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

The pleading is somewhat vague with respect to Lakeside, alleging that “LAKESIDE was and is the owner, operator, and/or manager of a medical group and/or managed care entity.” [Para. 9]. The pleading also alleges that Dr. Issai was “employed by” defendants, including Lakeside, and that he recommended certain procedures, which defendants did not follow, but diagnosed Stieber with muscle strain. [Paras. 21-24]. The opposition argues that Lakeside is being sued in this matter both as a medical provider and as a managed care entity, so that the direct allegations of wrongdoing are sufficient. The opposition also sets forth various duties generally owed by a health care service plan. These duties are not alleged with precision in the pleading.

The demurrer is overruled, as Lakeside is generally alleged to have been an actual medical provider, and the allegations now appear sufficient. If it is established in due course that Lakeside “acted” here as strictly a health care plan provider, that established fact might apparently become the subject of a dispositive motion.

Fifth Cause of Action—Fraud/Intentional Misrepresentation
Defendant argues that the fraud claim is not alleged with sufficient specificity.

Generally, in a fraud cause of action, a plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. When such a claim is made against a corporation, the level of specificity required is even higher. Under Lazar v. Superior Court, (1996) 12 Cal.4th 631, 645, in fraud complaints against a corporation, a plaintiff must allege all of the following:
-the names of the persons who made the misrepresentation;
-their authority to speak for the corporation;
-to whom they spoke;
-what they said or wrote; and
-when it was said or written.

The cause of action alleges that Lakeside “indicated to the plaintiffs’ decedent through their written and oral agreements and contract with STIEBER that STIEBER would receive competent care and treatment at a facility such as HOSPITAL.” [Para. 41]. It is also alleged that the fact that important diagnostic tests were not available on Sundays for persons at risk for cardiac arrest was known to defendant Lakeside, and that Issai communicated with the case manager of Lakeside twice on the morning of February 26, 2013 to discuss the requested authorization and diagnostic testing. [Para. 44] It is also alleged that the representations induced plaintiff to accept care and treatment from the hospital. [Para. 45].

The opposition argues that the pleading requirements should be relaxed here as Stieber is deceased, and that the cause of action in any event sufficiently alleges misrepresentations, including that physician’s orders would be promptly carried out. The paragraph setting forth this representation, however, specifically alleges it was made by defendants Providence and Does. Again, this cause of action as against Lakeside apparently may not be sustainable as additional facts are developed. [Para. 40(f)].
In sum, there are some allegations that this defendant represented to decedent that Stieber would receive competent care at a facility such as the hospital, when it knew that this was not entirely true, as not all resources were available at all times at this particular facility. In general, if the defendant is in a better position to know the facts concerning the alleged fraud, the requirement of specificity is relaxed. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. This is a situation in which Lakeside had better information concerning what was represented in the process of decedent obtaining treatment at Lakeside than plaintiffs, and the specificity requirements can properly be relaxed in some measure.

Sixth Cause of Action—Violation of Civil Code § 3428
Civil Code section 3428 provides:
“(a) For services rendered on or after January 1, 2001, a health care service plan or managed care entity, as described in subdivision (f) of Section 1345 of the Health and Safety Code, shall have a duty of ordinary care to arrange for the provision of medically necessary health care service to its subscribers and enrollees, where the health care service is a benefit provided under the plan, and shall be liable for any and all harm legally caused by its failure to exercise that ordinary care when both of the following apply:

(1) The failure to exercise ordinary care resulted in the denial, delay, or modification of the health care service recommended for, or furnished to, a subscriber or enrollee.

(2) The subscriber or enrollee suffered substantial harm.”

Lakeside argues that it appears from the TAC that plaintiffs are attempting to hold it responsible for the failure of the providers to exercise ordinary care in providing health care services, not for Lakeside’s failure to exercise care in arranging for the provision of services or benefits. Lakeside relies on Civil Code section 1371.25, which provides:
“A plan, any entity contracting with a plan, and providers are each responsible for their own acts or omissions, and are not liable for the acts or omissions of, or the costs of defending, others. Any provision to the contrary in a contract with providers is void and unenforceable. Nothing in this section shall preclude a finding of liability on the part of a plan, any entity contracting with a plan, or a provider, based on the doctrines of equitable indemnity, comparative negligence, contribution, or other statutory or common law bases for liability.”

It is held that this section is “unmistakably clear in precluding the imposition of vicarious liability…” Watanabe v. California Physicians’ Service (2008) 169 Cal.App.4th 56, 64.

Here, the allegations are now that despite the recommendations of the emergency room physician, defendants failed to perform “or authorize the performance” of medical tests on Stieber, despite two communication from the emergency room physician to have the procedures authorized. [Paras. 60, 61, 63]. This is not an attempt to assert vicarious liability but is rather an allegation of direct liability. The allegations are now sufficient to overcome demurrer. The demurrer is overruled.

Seventh Cause of Action—Breach of Written Contract
The pleading alleges that a contract was entered into, and alleges the terms in fairly specific detail. [Para. 107]. It is also alleged that evidence of the contract is attached as Exhibit B, although no such attachment is attached to the court’s copy of the pleading. The pleading and the opposition also allege that the full written agreement is not attached because it is in the possession of defendant. [See TAC, p. 14, n.1]/

In Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199, the California Supreme Court, in determining whether a claim had been stated in that case for breach of an insurance policy, stated:
“In an action based on a [*199] written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. (See generally 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 388, 389, 479, 480, 481, pp. 486-487, 572-574.) CPS has chosen to proceed in this manner, and though the complaint could have been clearer, it satisfactorily alleged (1) that the insurance policy obligated TIG Insurance to defend and indemnify CPS against suits seeking damages, and (2) that under the terms of the policy, SHC’s setoff claim fell within the scope of that contractual obligation. Whether CPS can prove these allegations (that is, whether its interpretation of the applicable contractual language is correct in light of what we have said here) remains to be seen, but the allegations are sufficient to establish a prima facie right to relief. TIG Insurance may move for judgment on the pleadings or summary judgment, raising the same arguments it raised in its demurrer, and in support of its motion it may provide the court with a copy of the insurance policy in question.”
Constructive Protective Services, Inc., at 198-199.

This appears to be a situation similar to that presented in Construction Protective Services, and here the pleading alleges why the actual writing is not attached. The demurrer is overruled.

Motion to Strike
Plaintiffs have filed a “Non-Opposition to Defendant Lakeside Medical Group’s Motion to Strike Portions of Plaintiffs’ [Corrected] Third Amended Complaint,” indicating that “Defendant’s motion to strike the portions set forth above is well taken, and plaintiffs concede that these portions should be stricken as they were included by error.” Accordingly, the motion to strike is GRANTED, at the concession of plaintiffs, without leave to amend.