Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. TC 020779 Rose Hom, Judge.
Ivie, McNeill & Wyatt, Robert H. McNeill, Jr., Allison R. Turner and Jennifer R. Jacobs for Plaintiff and Appellant.
Herzfeld & Rubin, Michael A. Zuk, Stephanie L. Rockey and Craig Winterman for Defendant and Respondent Medhi Zargarian, M.D.
Ryan Datomi & Mosely, Richard J. Ryan, Jeffrey T. Whitney and Dawn Cushman for Defendant and Respondent St. Francis Medical Center.
WOODS, Acting P. J.
Plaintiff Frances Hubbard, the successor in interest of her mother, decedent Hattie Southall, appeals from judgments entered after the court sustained the demurrers of defendants Medhi Zargarian, M.D. and St. Francis Medical Center (SFMC) to the second amended complaint (SAC) for elder abuse. Plaintiff contends the court abused its discretion in sustaining the demurrers without leave to amend as there was a reasonable probability she could cure any defects in the SAC. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Procedural Background
Plaintiff filed her original complaint on March 19, 2007, asserting a single cause of action for elder abuse pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. & Inst. Code, § 15600 et seq.). The complaint alleged defendants’ conduct constituted neglect as defined by section 15610.57.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Another doctor named in the complaint is not a party to this appeal.
The SAC was the operative complaint. The court sustained the demurrers of Dr. Zargarian and SFMC to the SAC without leave to amend. Prior to the hearing, plaintiff’s counsel called the court clerk and submitted on the tentative ruling to sustain the demurrers without leave to amend.
Plaintiff filed a motion for reconsideration of the order sustaining the demurrers. Plaintiff filed the attorney declaration and purported third amended complaint (TAC) subsequent to the oppositions filed by the defendants. The court denied the motion on the grounds it did not establish new or different facts, circumstances or law and plaintiff had not shown reasonable diligence. The court then entered judgments in favor of Dr. Zargarian and SFMC. Plaintiff filed a timely notice of appeal.
II. Allegations of the SAC
On March 22, 2005, Southall, an 82-year-old woman, was transported to SFMC via ambulance. Southall’s chief complaints were chest pain and shortness of breath; Southall was put under the care of Dr. Zargarian to rule out myocardial infarction. Southall did not have a gangrenous left foot or decubitus ulcers on admission. Southall remained in the care of SFMC and Dr. Zargarian during her 16-day hospital stay.
On March 23, Southall suffered a stroke resulting in a sudden change in her mental status and left-side weakness.
Defendants “failed to notice and monitor a change in the appearance of [Southall’s] left foot and skin and failed to provide the appropriate care to [Southall]. Defendants failed to protect [Southall] from health and safety hazards, suffering and malnutrition, failed to monitor [Southall’s] condition and report or document changes, failed to maintain adequate records and failed to oversee the safety of [Southall] so that by the time she was discharged she had a gangrenous foot and serious decubitus ulcers.”
On April 6, Southall was transferred from SFMC to Downey Care Facility. Upon admission to Downey Care Facility, it was determined Southall had a stage IV ulcer, and a gangrenous left foot. Southall’s left foot was amputated on April 23.
A stage IV ulcer “means that her tissue had been eaten away down to the bone.” (Delaney v. Baker (1999) 20 Cal.4th 23, 27.)
DISCUSSION
I. Standard of Review
“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations.... In addition, we give the complaint a reasonable interpretation, and read it in context. If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. The plaintiff has the burden of proving that an amendment would cure the defect.” (Citations omitted.) (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
II. The Elder Abuse Act
SFMC contends the court properly sustained its demurrer and suggests appellant pled only simple professional negligence (i.e., it did what it was suppose to do -- provide medical care and treatment) and not the custodial neglect required by the Elder Abuse Act. Dr. Zargarian contends he is not a care custodian and thus not subject to the Elder Abuse Act.
The purpose of the Elder Abuse Act “is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker, supra, 20 Cal.4th at p. 33.) The goal of the Act was to provide heightened remedies for “acts of egregious abuse” against elder and dependent adults while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence. (Id., at p. 35; § 15657.2.)
The question before the Delaney court was whether a health care provider which engaged in reckless conduct within the meaning of section 15657 was subject to the heightened remedies of that section or whether such reckless neglect was included in the term professional negligence under section 15657.2 and therefore exempt from the heightened remedies. (Delaney v. Baker, supra, 20 Cal.4th at p. 27.) The court concluded the term “professional negligence” did not include reckless neglect as one of the primary purposes of section 15657 was “to protect elder adults through the application of heightened civil remedies from being recklessly neglected at the hands of their care custodians, which includes the nursing homes or other health care facilities in which they reside.” (Id., at p. 42.)
Abuse of a dependent adult or elder will justify heightened remedies when the cause of action includes facts showing the following: “(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering[; or] [¶] (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (§ 15610.07.)
“It is true that statutory elder abuse includes ‘neglect as defined in Section 15610.57,’ which in turn includes negligent failure of an elder custodian ‘to provide medical care for [the elder’s] physical and mental health needs’ (§ 15610.57, subd. (b)(2)). But as we explained in Delaney, ‘neglect’ within the meaning of [section 15610.57] covers an area of misconduct distinct from ‘professional negligence.’ As used in the Act, neglect 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.’ Thus, the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care. Notably, the other forms of abuse, as defined in the Act--physical abuse and fiduciary abuse [§ 15657]--are forms of intentional wrongdoing also distinct from ‘professional negligence.’” (Case citations & italics omitted.) (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783.)
In Delaney, the court concluded “that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.” (Delaney v. Baker, supra, 20 Cal.4th at p. 32.) The court reasoned. “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.... ‘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.” (Citations omitted.) (Id., at pp. 31-32.)
In general, statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 790.) “In order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Id., at p. 789.)
Delany clarified that health care institutions, such as SFMC, could perform both custodial functions and provide professional medical care. (Delaney v. Baker, supra, 20 Cal.4th at pp. 34-42.) “That is, claims under the Elder Abuse Act are not brought against health care providers in their capacity as providers but, rather, against custodians and caregivers that abuse elders and that may or may not, incidentally, also be health care providers. Statutorily, as well as in common parlance, the function of a health care provider is distinct from that of an elder custodian, and ‘the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care’ does not mean that the two functions are the same.” (Citation & italics omitted.) (Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 786.)
III. The Pleadings
SFMC urges this court not to consider whether appellant can amend the SAC arguing that because counsel consented to the trial court’s tentative ruling and did not appear at oral argument, she invited the error (sustaining the demurrer without leave to amend) and waived the right to challenge the order as she did not offer any facts to cure the deficiencies of the SAC. We reject this argument as Code of Civil Procedure section 472c, subdivision (a) provides: “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.” In addition, not considering the TAC would punish the client for the attorney’s failing. Thus, we will review the allegations of the TAC rather than the SAC to determine if appellant has asserted a cause of action for elder abuse.
Appellant discusses how respondents failed to use a reasonable degree of care. However, that type of failure is the very essence of professional negligence. (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) The question before this court is whether appellant sufficiently alleged reckless neglect by respondents.
One text notes “there are two essential allegations in every case for recklessness: ‘knowledge’ of the high degree of probability of an injury, and ‘deliberate disregard.’” (Balisok, Elder Abuse Litigation (The Rutter Group 2008) § 9:33, p. 9-13.) In terms of alleging “knowledge” the text suggests: “Knowledge is a fact, and may be specifically alleged as such. In the context of a fraud allegation..., a simple averment that the defendant knew of the falsity is proper. While there is no further requirement of specificity of knowledge in a fraud setting, in a health care setting more information to support the allegation of knowledge of the high degree of probability of injury may be available and should be included in the complaint. Typically, an allegation that the defendant knew its specific act of neglect or physical abuse [such as failure to follow physician orders] would pose a high degree of probability of injury is easily understood and intuitively accepted even by lay persons.” (Citation omitted.) (Id., at § 9:34, p. 9-13.)
For “conscious disregard” the text notes, “This element is essentially one requiring an allegation of ‘intentional conduct,’ as in a conscious choice of action. ‘Intent,’ like ‘knowledge’ may be properly alleged merely by stating that the defendant ‘intentionally’ chose a particular course of action. Some courts have disapproved of an allegation, essentially conclusory, that the defendant acted wantonly, maliciously and oppressively. But ‘intent’ is a proper allegation. A ‘general averment’ of intent is sufficient.” Citation omitted.) (Balisok, Elder Abuse Litigation, supra, § 9:35, pp. 9-13--9-14.)
In Delaney, the plaintiff sued a skilled nursing home and its administrators on several theories arising from the death of her 88-year-old mother (Rose Wallien) at the facility. (Delaney v. Baker, supra, 20 Cal.4th at pp. 27-28.) The jury found for plaintiff on the elder abuse claim on the basis the defendants had been reckless in their conduct. (Id., at p. 28.) At the time of her death, Wallien had stage III and IV pressure ulcers; the court noted:
There was evidence introduced that she was frequently left lying in her own urine and feces for extended periods of time. The neglect was apparently the result, in part, of rapid turnover of nursing staff, staffing shortages, and the inadequate training of employees. The evidence also showed numerous violations of medical monitoring and recordkeeping regulations that prevented necessary information from being transmitted to Wallien’s personal physician on a timely basis. The neglect occurred despite plaintiff’s persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman. The facility had been cited for patient neglect by the Department of Health Services shortly before Ms. Wallien’s admission. After her death, the facility was given a class “A” citation, which is only levied when inadequate care creates ‘substantial probability that death or serious physical harm... would result’ to nursing home residents, and the facility was fined $7,500. (Citations omitted.) (Id., at p. 27.)
In Mack v. Soung (2000) 80 Cal.App.4th 966, 974, the court noted: “Unlike, for example, section 15610.07, subdivision (b), which imposes liability only upon ‘care custodians,’ the statute defining ‘neglect’ is not restricted to care custodians. Instead it applies generally to anyone having ‘care or custody’ of an elder, and specifically mentions the ‘[f]ailure to provide medical care for physical and mental health needs.’ (§ 15610.57, subd. (b)(2).) Similarly, the heightened remedies section is not limited to care custodians but targets any ‘defendant’ who commits abuse or neglect and does so with ‘recklessness, oppression, fraud, or malice.’ (§ 15657.)” (Fn. omitted.)
The Mack court found that the plaintiffs (the surviving children of Girtha Mack who died in a nursing home) had sufficiently alleged a cause of action for elder abuse against Dr. Lian Soung, their mother’s attending physician. (Mack v. Strong, supra, 80 Cal.App.4th at p. 968.) After setting forth the facts disclosed by the pleadings, the court concluded: “We have no trouble concluding that a doctor who conceals the existence of a serious bedsore on a nursing home patient under his care, opposes her hospitalization where circumstances indicate it is medically necessary, and then abandons the patient in her dying hour of need commits neglect within the meaning of the Act. Further, if it can be proved by clear and convincing evidence that such acts were committed with recklessness, oppression, fraud, or malice, the heightened remedies of section 15657 will apply.” (Id., at pp. 972-973.)
The court noted: “The trial court predicated its order sustaining the demurrer to this cause of action without leave to amend on plaintiffs’ failure or unwillingness to allege ‘willful misconduct’ by Dr. Soung. That ruling was mistaken. Recklessly withdrawing needed medical care from an elderly patient with conscious disregard for the high probability of injury or suffering, whether ‘willful misconduct’ or not, is precisely the sort of egregious behavior which the Legislature sought to remedy in passing the Act. (See §§ 15600, subds. (a), (d), 15610.57, subd. (b)(2).)” (Mack v. Soung, supra, 80 Cal.App.4th at p. 973, fn. 4.)
In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 84, the trial court granted summary adjudication on the ground there was no evidence the defendant care facility was guilty of something more than professional neglect. The patient had been diagnosed with Huntington’s chorea, a disease that subjected her to risk of skin deterioration. (Id., at p. 85.) The patient’s successors had alleged the care facility had not satisfied its custodial obligation to meet the patient’s basic needs because it failed to follow the care plan for maintaining the patient’s skin. (Id., at p. 87.) The Court of Appeal reversed, stating, “when the evidence and inferences are liberally construed, we easily conclude that there is a triable issue as to whether Covina’s employees acted with recklessness, oppression or malice. A trier of fact could find that when a care facility’s employees ignore a care plan and fail to check the skin condition of a resident with Huntington’s chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury.” (Id., at p. 90.)
The court noted the trial court did not assess the evidence for triable issues as to the care facility’s liability for conduct of its employees and remanded for the trial court to determine whether the care facility’s motion for summary adjudication eliminated a triable issue as to employer liability. (Sababin v. Superior Court, supra, 144 Cal.App.4th at p. 90.)
The care facility had contended it could not be held liable for elder abuse unless there was a total absence of care. The court reasoned: “We disagree. 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.” (Sababin v. Superior Court, supra, 144 Cal.App.4th at p. 90.)
The TAC contains the following allegations:
Defendants, and each of them, recklessly and with conscious disregard for the safety of [Southall] failed to evaluate [Southall’s] skin integrity per the plan of care ordered by defendant Zargarian on March 22, 2005 and revised on March 26, 2005 and April 5, 2005. Each and every Defendant was aware that [Southall] was at high risk for skin breakdown as evidenced by the daily calculation of [Southall’s] Braden score and additional factors such as age and immobility. Based on this knowledge, Defendant Zargarian developed a plan of care to prevent skin breakdown which included the following things: (1) skin assessments at every admission, transfer, and post-op; (2) daily assessment of [Southall’s] risk for developing skin breakdown using the Braden scale; (3) documenting skin breakdown with photographs on admission and every 7 days or as needed; (4) initiate and carry out skin care orders[;] (5) turn and reposition [Southall] every 2 hours; (6) nutritional consultation; (7) reassess skin over pressure points every 2 hours; (8) bathe [Southall] every morning; (9) place heel protectors on [Southall’s] heels; (10) do a peri-wash every 2 hours; (11) sit up in chair 3 times per day; (12) elevate head of [Southall’s] bed; and (13) do neurological checks, including pedal pulse [palpation], every 1-2 hours. Some of these orders were never carried out, while others were carried out inconsistently and contrary to the plan of care.
Defendants nurse does failed to carry out the plan of care for skin integrity as developed by Defendant Zargarian by not conducting skin assessments or pressure point evaluations, by not placing heel protectors, by not documenting skin breakdown and by not turning [Southall] every 2 hours or placing her up in a chair 3 times per day as ordered. Additionally, nurse does failed in their custodial duties by failing to assist [Southall] in personal hygiene when she was in an unstable and unresponsive condition and failing to provide bath care and peri-wash. [Southall] went four consecutive days without being bathed and peri-wash was only done sporadically, never every 2 hours as ordered. Defendants nurse does also failed to properly take [Southall’s] pedal pulses by removing socks or stockings.... Additionally, Defendants nurse does frequently charted the existence of pedal pulses when it was not likely that such pulses were present. For several days, it was noted that [Southall’s] pedal pulses were only present on Doppler but not on manual palpation. Then, it was mysteriously noted that [Southall] had “strong” pedal pulses. However, when [Southall] was finally admitted to Downey Care Center it was noted that no pedal pulse was present on the left, even with Doppler. (Emphasis deleted.)
In addition, the TAC contained allegations describing the use of the Braden Scale to assign a patient’s risk of developing pressure ulcers and its recommended protections to prevent such ulcers from developing. The allegations described in detail on a daily basis the measures taken and not taken and how the care plan was not followed. The TAC alleged SFMC failed to maintain adequate staff levels to provide adequate custodial and nursing care for Southall and failed to oversee her safety; defendants acted with recklessness and conscious disregard for the health and safety of Southall as they knew her bedridden and unresponsive status and Braden score created a greater risk for skin breakdown making certain preventative care and monitoring necessary; defendants knew of the probable dangerous consequences of their failure to provide adequate care and treatment and willfully failed to avoid such consequences despite the existence of explicit orders and a skin integrity plan of care; had defendants followed the care plan, they would have prevented or noticed the ulcers and gangrene. SFMC complains the complaint does not identify which employees were reckless. However, that is something discovery will answer.
We conclude that at the pleading stage, though not a model pleading, these allegations show a deliberate disregard of the high degree of probability Southall would suffer severe pressure ulcers/gangrene and are sufficient to assert a cause of action for elder abuse based on reckless neglect.
A. Dr. Zargarian
The allegations are insufficient to state a cause of action against Dr. Zargarian, who was alleged to be licensed to practice medicine and apparently was a cardiologist. Southall was admitted to SFMC under the care of Dr. Zargarian “to rule out myocardial infarction.” The TAC alleged Dr. Zargarian’s discharge summary made no reference to any skin breakdown, ulcers or gangrenous foot and stated Southall was discharged in stable condition. In essence, the TAC alleged Dr. Zargarian prepared a skin assessment plan for Southall and failed to ensure the nurses were carrying out the skin integrity plan. There are no fact allegations that Dr. Zargarian provided custodial care or was responsible for supervising the nurses at SFMC and appellant cites no legal authority imposing such a duty on a cardiologist. At best, the other allegations against Dr. Zargarian reflect professional negligence, i.e., the lack of the use of reasonable care. Accordingly, we conclude Dr. Zargarian’s demurrer was properly sustained.
However, there is no judgment in favor of Dr. Zargarian in the record. Although there is a notice of entry of judment on behalf of Dr. Zargarian, it refers to exhibit A, described as the attached judgment. Exhibit A is a copy of the order sustaining Dr. Zargarian’s demurrer to the SAC without leave to amend. Such an order is not appealable. (Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 411, 418 fn. 1.) Only a judgment or an order of dismissal signed by the court, such as that entered in favor of SFMC, is appealable. (Ibid.; Code Civ. Proc, §§ 581d & 904.1.) Because the document is designated entry of judgment and the court signed the order, we will treat the order as an order of dismissal even though it does not state it is.
B. SFMC
After review of the allegations of the proposed third amended complaint (TAC), this court determined the allegations contain sufficient facts which, if proved, showed the recklessness and conscious disregard necessary for a claim of elder abuse. However, section 15657 incorporates Civil Code section 3294. Under subdivision (b) of that section, the enhanced remedies under the Elder Abuse Act require proof of authorization, ratification or personal participation in an act of oppression, fraud or malice by an officer, director or managing agent of the corporation. Because there was no argument that an action for elder abuse required such allegations, this court asked appellant and SFMC to submit supplemental letter briefs on that issue. This court directed that appellant set forth factual allegations showing an officer, director or managing agent of SFMC authorized or ratified the elder abuse inflicted upon decedent Southall and facts establishing the named person was an officer, director or managing agent of SFMC. (See White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573-577; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167-168.)
In essence, appellant asserted that ratification could be inferred from the custodial setting or by the alleged understaffing and that a managing agent would have been involved in Southall’s care. We conclude that the Elder Abuse Act does not allow for such inferences.
Citing Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 249-250, appellant argues circumstantial evidence is sufficient to show an inference of ratification and/or authorization. In Hartman, unlike the situation here, there was evidence of the managerial status of the employee who had made misrepresentation to the plaintiff. (Id., at p. 250.)
Appellant claims the TAC could be amended to allege the director or assistant director of nursing and other supervising nursing staff “were to oversee the nursing staff pursuant to policy and/or practice of Respondent SFMC.” Appellant posits that “a managing agent is an employee who exercises substantial discretionary authority over decisions.” Such allegations only assert supervisory responsibility not responsibility for establishing corporate policy that is necessary to find corporate liability under the Elder Abuse Act. (White v. Ultramar, Inc., supra, 21 Cal.4th at p. 573 [Under Civil Code section 3294, subdivision (b), corporate liability is limited to only those leaders “who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy.”].)
In short, there is no claim the TAC can be amended to allege an officer, director or managing agent authorized or ratified the alleged reckless conduct of the nurses. Given the purpose of the Elder Abuse Act to protect a particularly vulnerable segment of the population, by incorporating Civil Code section 3294, the Legislature permits the entity charged with the responsibility for the elderly to turn a blind eye to the care it is charged with providing unless the reckless conduct is brought to the attention of a managing agent.
DISPOSITION
The judgments are affirmed. Respondents are awarded costs on appeal.
We concur, ZELON, J. JACKSON, J.