23 Cal. App. 5th 206
Cal. Ct. App. 5th2018Background
- Elizabeth Alexander, a 70‑year‑old with end‑stage metastatic pancreatic cancer, was hospitalized at Scripps for four days in Feb 2013; she had an advance directive and POLST directing "full code" and life‑sustaining treatment, and had designated her son Christopher as surrogate.
- Treating physicians and a palliative physician concluded advanced life‑support (CPR, intubation) would be medically ineffective and harmful; a DNR order was placed and an internal Appropriate Care Committee recommended comfort measures while working to transfer the patient per family request.
- Family members sued Scripps, several treating physicians, Appropriate Care Committee members, and a nurse after Elizabeth died before transfer; claims included violations of the Probate Code (Health Care Decisions Law), elder abuse, professional negligence, wrongful death, negligent misrepresentation, and emotional distress.
- Defendants moved for summary judgment with expert declarations asserting they complied with the standard of care and were immune under Probate Code §4740; plaintiffs relied on expert declarations from Dr. Boggeln. The trial court sustained many evidentiary objections to plaintiffs’ expert, granted summary judgment for defendants, and awarded costs and expert fees.
- On appeal the court affirmed most rulings: demurrer dismissal of elder‑abuse claims, exclusion of plaintiffs’ expert opinions for lack of foundation/reasoning, no duty owed by volunteer Appropriate Care Committee members, and defendants’ immunity under §4740 for several statutory claims; it reversed only the award of one defendant’s expert fees against two family members because offers to compromise were not served on them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of elder‑abuse pleading (neglect/physical abuse) | Alleged recklessly withholding transfer, medications, fluids, nutrition and hastening death; argued facts show egregious neglect | Conduct amounted to medical care decisions or negligence, not the custodial, egregious failures the Elder Abuse Act requires | Demurrer sustained: allegations at most show professional negligence, not the recklessness/oppression/fraud required for elder‑abuse remedies (affirmed) |
| Admissibility of plaintiffs’ expert (Dr. Boggeln) for summary judgment opposition | Expert created triable issues on standard of care, causation, and statutory violations | Expert opinions were conclusory, lacked foundation, failed to analyze key facts (terminal cancer), and lumped defendants together | Trial court did not abuse discretion in excluding most opinions for lack of reasoning/foundation; limited error as to one opinion about requesting advance directives (mostly affirmed) |
| Duty of care owed by Appropriate Care Committee members | Committee participated bedside and recommended withholding futile care, so they owed patients a duty | Committee members were volunteer reviewers who only made recommendations and did not treat the patient | No physician‑patient relationship or duty imposed on committee members; imposing duty would discourage volunteer review (affirmed) |
| Immunity under Probate Code §4740 for alleged violations of Health Care Decisions Law | Immunity inapplicable where defendants violated statutory requirements; plaintiffs argued statutory noncompliance defeats immunity | §4740 shields providers who act in good faith and in accordance with generally accepted health‑care standards when declining medically ineffective care | Defendants demonstrated uncontradicted evidence of good faith and compliance with standards; immunity applied to alleged violations of §§4730, 4732, 4736, 4742(b). Trial court erred only insofar as immunity on §4731 was resolved without considering disputed evidence (mostly affirmed) |
| Award of expert fees under CCP §998 to Dr. Ritt against family members | Plaintiffs attacked award of Dr. Ritt’s expert costs against Christopher and McDermet | Defendants relied on prevailing‑party offers to compromise served under §998 | Reversed as to awarding Dr. Ritt’s expert costs against Christopher and McDermet because offers to compromise had not been served on them (affirmed in all other respects) |
Key Cases Cited
- Moore v. Regents of University of California, 51 Cal.3d 120 (recognizes de novo review of demurrer rulings)
- Aubry v. Tri‑City Hospital Dist., 2 Cal.4th 962 (pleading standard: state a cause under any legal theory)
- Covenant Care, Inc. v. Superior Court, 32 Cal.4th 771 (distinguishes elder abuse/neglect from professional negligence)
- Winn v. Pioneer Medical Group, Inc., 63 Cal.4th 148 (Elder Abuse Act requires recklessness/oppression/fraud for enhanced remedies)
- Sargon Enterprises, Inc. v. Univ. of Southern Cal., 55 Cal.4th 747 (trial court gatekeeper role on expert admissibility; methodology and reasoning required)
- Bozzi v. Nordstrom, Inc., 186 Cal.App.4th 755 (summary judgment evidence construed strictly for movant, liberally for opponent)