After Elizabeth's death, her estate (Estate) and children, Clenton Alexander, Christopher Alexander, and Jacquelyn McDermet (together, Plaintiffs),
Plaintiffs sued Scripps and nine medical professionals involved in Elizabeth's care and treatment. Four of the physician defendants were directly involved in Elizabeth's care: Dr. Donald Ritt (рalliative care), Dr. Gustavo Lugo (hospitalist), Dr. Preeti Mehta (internal medicine), and Dr. Marie Shieh (oncologist). The remaining physician defendants were members of Scripps's Appropriate Care Committee, a team of volunteer physicians who provide recommendations as to whether certain treatment is appropriate for a patient (Appropriate Care Committee). The members of the Appropriate Care Committee were Dr. Shawn Evans (chief of staff at Scripps), Dr. Ayana Boyd-King, Dr. Ernest Pund, and Dr. Charles Ettari. As a treating physician, Dr. Lugo also participated in the Appropriate Care Committee for Elizabeth's case. Plaintiffs also sued Karen Knight, a nurse who helped facilitate Elizabeth's transfer to another facility based on Christopher's request.
After Plaintiffs filed their initial complaint, the trial court sustained several demurrers, which led to Plaintiffs' operative fourth amended complaint. In the operative complaint, Plaintiffs asserted claims against Defendants for violations of five statutes within the Health Care Decisions Law ( Probate Code, § 4600 et seq. ),
Defendants moved for summary judgment on Plaintiffs' claims and supported their motions with expert declarations stаting Defendants complied with the standard of care, did not violate the Probate Code, and did not cause Elizabeth injury or death. While these motions were pending, Plaintiffs sought to depose the Scripps Defendants and Dr. Ritt's expert, but the trial court denied that request. Thereafter, Plaintiffs opposed Defendants' summary judgment motions with declarations from their own expert, Dr. Laurence Boggeln. The trial court granted Defendants' summary judgment motions. These rulings were largely based on the court's decision to sustain Defendants' objections to Dr. Boggeln's opinions on the basis that the opinions were conclusory, lacked foundation, and the expert failed to consider critical facts,
After the trial court granted Defendants summary judgment, the trial court awarded Defendants their costs, including expert fees under Code of Civil Procedure section 998. In total, the costs amounted to approximately $160,000.
On appeal, Plaintiffs contend the trial court erred in: (1) sustaining demurrers to their elder abuse claims; (2) refusing their request to depose a defense expert; (3) sustaining objections to their expert's declarations and overruling their objections to defense expert declarations; (4) finding Drs. Evans, Boyd-King, Ettari, and Pund (Appropriate Care Committee) did not owe Elizabeth a duty of care; (5) finding there was no triable issue of fact on their negligent misrepresentation claim; (6) finding Defendants were immune from liability and did not violate provisions of the Health Care Decisions Law; (7) denying their motion to reconsidеr the summary judgment rulings in favor of the Scripps Defendants and Dr. Ritt; (8) improperly awarding Defendants costs and expert fees; and (9) delaying depositions until the complaint was amended to name all of Elizabeth's known heirs.
We conclude the trial court properly sustained Defendants' demurrers to Plaintiffs' causes of action for elder abuse because Plaintiffs did not allege Defendants' conduct was sufficiently egregious to constitute elder abuse within meaning of the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) ( Welf. & Inst. Code, § 15600 et seq. ), and Plaintiffs did not meet the pleading requirements for their elder abuse claims. Plaintiffs' allegations, at best, stated a claim for professional negligence.
We also conclude the trial court properly granted Defendants summary judgment. On Plaintiffs' professional negligence and wrongful death claims, they could not defeat summary judgment because their expert did not set forth sufficient reasoning or explanation for his opinion that Defendants' breaches of the standard of care and violations of the Probate Code caused Elizabeth injury or death. Plaintiffs' negligent misrepresentation claims failed because the statements they relied upon were not positive assertions by Defendants, and Plaintiffs did not justifiably rely on Defendants' statements.
Concerning Plaintiffs' causes of action for Probate Code violations, we find Defendants were immune from liability under section 4740 for alleged violations of sections 4730 concerning communication of health care decisions; 4732 concerning recordation of information about a patient's capacity; 4736 concerning a health care provider's or institution's duties upon
Lastly, we conclude the trial court erred in holding Christopher and McDermet responsible for Dr. Ritt's expert fees under Code of Civil Procedure section 998 because Dr. Ritt did not serve them with offers to compromise. Accordingly, we reverse the judgment in favor of Dr. Ritt to the extent it awards those fees. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Elizabeth's Hospitalization
In June 2012, a doctor informed Elizabeth she had stage four pancreatic cancer and there was no cure. Elizabeth's options included palliative chemotherapy, supportive care, or hospice. She stated she wanted to continue fighting and elected to undergo palliative chemotherapy. Elizabeth's cancer was very aggressive and had spread to her liver and bones.
In January 2013, Elizabeth was admitted to Emeritus Skilled Nursing Facility (Emeritus) because she could no longer care for herself. Elizabeth had an advance health care directive in which she elected to have all measures taken to prolong her life. Elizabeth designated Christopher as the person who could make health care decisions for her in the event she was unable to make those decisions. Christopher completed a Physician Orders for Life Sustaining Treatment (POLST) form, indicating he wanted Elizabeth to be "full code," meaning she would receive CPR and full medical treatment.
On February 15, 2013, Elizabeth went to the emergency room at Scripps for placement of a feeding tube because she was malnourished. She was awake and alert, but was weak and had difficulty speaking. After a physician placed the feeding tube, Elizabeth returned to Emeritus.
On February 17, 2013, Dr. Aboo Nasar, the medical director of Emeritus, evaluated Elizabeth because her health had significantly deteriorated since she was first admitted to the facility. Elizabeth could not communicate with
On February 18, 2013, Dr. Nasar discharged Elizabeth to Scripps for evaluation. He did not expect her to return to Emeritus as he believed her death was imminent. A licensed vocational nurse filled out a nursing home discharge form for Elizabeth, indicating (apparently in error) Elizabeth did not "have a condition or chronic disease that may result in a life expectancy of less than 6 months." That designation required physician documentation, but there was no evidence that a physician agreed with the nurse's determination of Elizаbeth's prognosis.
Elizabeth presented to the emergency room at Scripps via ambulance. Dr. Christopher Wiesner saw Elizabeth in the emergency
Dr. Wiesner admitted Elizabeth to the hospital for consultation with oncology or palliative care. A nurse noted in Elizabeth's medical record that Elizabeth had an advance health care directive and that a copy of it was in her chart.
Dr. Lugo, the hospitalist, saw Elizabeth when she was admitted to Scripps on February 18, 2013. He noted she looked near terminal and emaciated with severe and obvious signs of malnutrition. Dr. Lugo's treatment plan stated comfort measures were the primary goal to ease Elizabeth's suffering. Although Dr. Lugo determined tube feedings would be futile and would prolong Elizabeth's suffering, he ordered this care be provided.
Dr. Shieh, a consulting oncologist, evaluated Elizabeth on February 18, 2013. Dr. Shieh noted Elizabeth was "post palliative chemotherapy and radiation. She has now had a progressive decline in her functional status, and there [was] evidence of moderate progression of disease." Dr. Shieh spoke with Christopher, who informed her Elizabeth was a fighter and would want to continue any possible available therapies. Dr. Shieh informed Christopher that "given [Elizabeth's] poor performance status, and her liver failure, ... there really [were] no other safe therapies at [that] time."
Dr. Ritt spoke with McDermet about a conversation he had with Christopher about Elizabeth's code status. During the conversation with McDermet, Dr. Ritt informed her that he did not agree with the family's desire to engage in life-prolonging measures because Elizabeth was terminally ill.
Dr. Ritt contacted Dr. Evans, chief of staff at Scripps, and initiated steps to involve Scripps's Appropriate Care Committee, comprised of Drs. Evans, Pund, Ettari, Boyd-King and Lugo, the treating physician, in Elizabeth's case.
On February 19, 2013, Elizabeth received a fentanyl patch for her pain. She was also cleared for transfer back to Emeritus as soon as possible with her feeding tube in place. However, later that day, Dr. Ritt placed а hold on Elizabeth's transfer based on information from nurse Knight that Emeritus would not accept the patient back at that time. Emeritus would not accept Elizabeth's transfer if her family wanted her to have a full resuscitation or full code order in place. Christopher was not aware Dr. Ritt had placed a hold on Elizabeth's transfer.
Members of the Appropriate Care Committee spoke with Christopher about Elizabeth's condition and their rеcommendations for appropriate care. Christopher expressed he understood Elizabeth's death was imminent and she had no opportunity for survival. However, Christopher maintained Elizabeth's advance health care directive should be followed and he was not willing to endorse anything to the contrary. The Appropriate Care Committee members explained that doctors could not embark on ineffective care. Christopher requested Elizabeth be transferred to another facility. Thus, the committee informed Christopher it would make efforts to transfer Elizabeth, provided the transfer did not harm her.
Thereafter, Knight contacted Christopher to facilitate Elizabeth's transfer. Christopher reiterated he did not agree with Elizabeth's DNR code status. Knight recommended Christopher contact Elizabeth's insurance to identify a covered facility and doctor who would accept her transfer.
On February 20, 2013, Dr. Lugo prescribed Elizabeth 1.5 milligrams of hydromorphone every two hours, as needed for pain. Later that day, Dr. Ritt increased Elizabeth's hydromorphone to two milligrams every two hours, as needed for pain, and prescribed lorazepam to ease her discomfort during the dying process. Dr. Ritt did not discuss the administration of lorazepam with Christopher.
Dr. Mehta (internal medicine) also saw Elizabeth on February 20, 2013. Dr. Mehta did not provide Elizabeth with intravenous fluids that day because Elizabeth was edematous, meaning she had an accumulation of excess fluid in cells, tissues, or body cavities. Further, Dr. Mehta decreased Elizabeth's tube feedings because she determined further nutrition was unnecessary and could be causing Elizabeth additional pаin. Dr. Mehta discussed this change with Elizabeth's family. Christopher reiterated he wanted Elizabeth to be a full code patient.
Dr. Mehta reduced Elizabeth's hydromorphone to one milligram every two hours, as needed for pain. Elizabeth received two milligrams of hydromorphone at 2:02 p.m. and then one milligram at 11:47 p.m. She did not receive additional hydromorphone between that time, but did have a continuous release fentanyl patch for pain. Dr. Mehta observed Elizabeth in pain at 4:00 p.m. that day. The plan was for Elizabeth to be discharged to Emeritus the following morning, if possible.
Dr. Ritt saw Elizabeth on February 21, 2013. Elizabeth did not receive artificial
The Lawsuit
In May 2014, Clenton, on behalf of himself and the Estate, filed an action against Defendants, alleging 16 causes of action. In August 2015, after multiple rounds of demurrers, Plaintiffs filed their operative fourth amended complaint, alleging violations of the Probate Code, elder abuse, professional negligence, wrongful death, negligent misrepresentation, and negligent infliction of emotional distress.
Between March 2013 and March 2016, the parties engaged in discovery. During that time, Plaintiffs deposed 10 medical professionals and individuals designated as persons most knowledgeable for Scripps. Defendants produced documents, including medical records and billing records.
In March 2016, the Scripps Defendants and Dr. Ritt moved for summary judgment or, in the alternative, summary adjudication. They argued Plaintiffs could not prove the essential elements of negligence, including causation; there was no evidence the Scripps Defendants and Dr. Ritt violated the Probate Code; the Scripps Defendants and Dr. Ritt were immune from liability under the Probate Code; and Plaintiffs could not establish negligent misrepresentation and negligent infliction of emotional distress. The Scripps Defendants also argued the Appropriate Care Committee members did not owe Elizabeth a duty of care. The Scripps Defendants and Dr. Ritt supported their motions with an expert declaration from Dr. Eric Roeland regarding whether they complied with the standard of care and contributed to Elizabeth's death or caused her injury.
In April 2016, Drs. Lugo, Mehta, and Shieh moved for summary judgment or, in the alternative, summary adjudication. They made arguments similar to those asserted by the Scripps Defendants and Dr. Ritt, and each defendant supported his or her motion with an expert declaration consistent with the opinions Dr. Roeland offered.
In May 2016, Plaintiffs opposed the Scripps Defendants' and Dr. Ritt's summary judgment or summary adjudication motions. Plaintiffs supported their opposition with a May 2016 expert declaration from Dr. Boggeln, who
In June 2016, the trial court heard arguments on the Scripps Defendants' and Dr. Ritt's summary judgment or summary adjudication motions and their objections to Dr. Boggeln's declaration. During the hearing, the court questioned Dr. Boggeln's opinions because he provided little explanation for his conclusions and relied on a prognosis determination from a nurse at Emeritus that was not supported with physician documentation. Plaintiffs offered, "[t]o the extent that the Court still has concerns regarding [Dr. Boggeln's] declaration, we're happy to submit an amended declaration to address the Court's concerns."
The trial court granted the Scripps Defendants' and Dr. Ritt's summary judgment motions and sustained their objections to all of the opinions in Dr. Boggeln's declaration. The court concluded there was no triable issue of fact on whether the Scripps Defendants and Dr. Ritt violated the standard of care and caused Elizabeth injury or death; the Appropriate Care Committee members did not owe Elizabeth a duty of care; the Scripps Defendants and Dr. Ritt were immune from liability for alleged statutory violations of the Probate Code; and there was no competent evidence to support Plaintiffs' other claims.
After the trial court granted the Scripps Defendants' and Dr. Ritt's summary judgment motions, Plaintiffs opposed Drs. Lugo, Mehta, and Shieh's summary judgment or summary аdjudication motions and filed amended declarations from Dr. Boggeln in support of their oppositions. Dr. Boggeln reached the same opinions as he had in his earlier declaration. Drs. Lugo, Mehta, and Shieh objected to Dr. Boggeln's amended declarations.
In July 2016, the trial court granted Drs. Lugo, Mehta, and Shieh's summary judgment motions and sustained their objections to Dr. Boggeln's declarations. The trial court granted Drs. Lugo, Mehta, and Shieh's summary judgment motions on the same grounds as it had for the Scripps Defendants and Dr. Ritt.
The trial court entered judgments in favor of Defendants. After Plaintiffs' motions to tax costs, the trial court awarded Defendants costs, totaling $160,895.92. Specifically, the court awarded $43,302.51 to the Scripps Defendants, $28,237 to Dr. Lugo, $32,501.22 to Dr. Mehta, $28,801.71 to Dr. Ritt, and $28,053.48 to Dr. Shieh.
I. Demurrer Rulings
A. Background
After the trial court sustained in part and overruled in part Defendants' demurrer to Plaintiffs' second amended complaint, Plaintiffs filed a third amended complaint, alleging 12 causes of action against each Defendant. As relevant here, the trial court sustained without leave to amend Defendants' demurrer to Plaintiffs' cause of action for elder abuse based on neglect, and sustained with leave to amend the demurrer to a cause of action for elder abuse based on financial abuse.
In August 2015, Plaintiffs filed the operative fourth amended complaint that included a cause of action for financial elder abuse. The trial court sustained Defendants' demurrer to the elder abuse cause of action without leave to amend and granted their associated motion to strike enhanced penalties and punitive damages.
B. Standard of Review
We review an order sustaining a demurrer de novo, exerсising our independent judgment as to whether a cause of action has been stated as a matter of law. ( Moore v. Regents of University of California (1990)
C. Elder Abuse Based on Neglect and Physical Abuse
In their third amended complaint, Plaintiffs alleged Defendants committed elder abuse by neglecting and physically abusing Elizabeth. Plaintiffs contend
1. Legal Principles
"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.' " ( Carter v. Prime Healthcare Paradise Valley LLC (2011)
Abuse under the Elder Abuse Act includes physical abuse, neglect, and "[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." ( Welf. & Inst. Code, § 15610.07.) Neglect is "[t]he nеgligent 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." (Id., § 15610.57, subd. (a)(1).) Neglect includes "[f]ailure to provide medical
2. Plaintiffs' Allegations Were Insufficient to State a Claim for Elder Abuse Based on Neglect and Physical Abuse
Reviewing Plaintiffs' third amended complaint in light of the foregoing legal principles, we conclude Plaintiffs did not allege Defendants did anything sufficiently egregious to constitute neglect or physical abuse within the meaning of the Elder Abuse Act. As we shall explain, although Plaintiffs alleged Defendants failed to facilitate Elizabeth's transfer to another facility and withheld pain medication, nutrition, аnd fluids, the third amended complaint is replete with references to the extensive medical care Elizabeth received during her four-day hospitalization. Taken as a whole, Plaintiffs' allegations are insufficient to state a cause of action for elder abuse within the meaning of the Elder Abuse Act. Unlike cases in which elder abuse is properly pleaded because the patient was abandoned or ignored for extended periods of time, here family members disagreed with the nature of care their mother was receiving. Disagreements between physicians and the patient or surrogate about the type of care being provided does not give rise to an elder abuse cause of action.
We begin by analyzing Plaintiffs' specific allegations. First, Plaintiffs generally asserted Defendants recklessly failed to provide Elizabeth medical care, recklessly failed to protect her from health and safety hazards, and recklessly abandoned her. Plaintiffs' general statements of recklessness are not sufficient to survive a demurrer to their elder abuse cause of action. (See Carter, supra ,
Lastly, Plaintiffs relied on allegations that Defendants administered drugs to Elizabeth to hasten her death and withheld nutrition, hydration, and pain medication. However, the third amended complaint is replete with allegations that Elizabeth regularly received pain medication, nutrition, and fluids. The allegations suggest Defendants provided Elizabeth with medical care throughout her hospitalization. (Compare Carter, supra ,
Although Plaintiffs may disagree with the frequency and quantity of the medication, hydration, and nutrition Defendants provided to Elizabeth, Plaintiffs' allegations do not constitute abuse or neglect within the meaning of the Elder Abuse Act. At most, Plaintiffs' allegations might constitute professional negligence. ( Carter, supra ,
D.-E.
IV. Trial Court's Evidentiary Rulings on Declarations Submitted in Support of and Opposition to Summary Judgment Motions
Plaintiffs argue the trial court erred in overruling Plaintiffs' objections to defense expert declarations and sustaining Defendants' objections to Dr. Boggeln's opinions. The trial court's evidentiary determinations were critical to its summary judgment rulings in favor of Defendants on Plaintiffs' theories of negligence, wrongful death, and causes of action for statutory violations of the Probate Code. Thus, we consider Plaintiffs' arguments concerning the trial court's evidentiary rulings before addressing the trial court's orders granting summary judgment.
A. Legal Principles
"The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue." (
"[T]he gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions thаt they generate.' " ( Sargon, supra ,
B. Plaintiffs' Expert Declarations
Plaintiffs offered multiple expert declarations from Dr. Boggeln to support their oppositions to Defendants' summary judgment motions. Plaintiffs argue the trial court abused its discretion in sustaining objections to Dr. Boggeln's opinions. As we shall explain, we conclude the trial court properly sustained most of Defendants' objections to Dr. Boggeln's opinions, but abused its discretion in sustaining some of the objections relevant to a cause of action premised on violations of the Probate Code.
In May 2016, Dr. Boggeln submitted a declaration in opposition to the Scripps Defendants' and Dr. Ritt's summary judgment motions. In that declaration, Dr. Boggeln set forth his background and stated
After detailing the medical chronology, Dr. Boggeln expressed his opinions regarding the care and treatment Elizabeth received from Defendants. Dr. Boggeln opined "to a reasonable degree of medical probability" that Defendants, or some of them, failed to comply with the standard of care and
The Scripps Defendants and Dr. Ritt objected to Dr. Boggeln's May 2016 declaration, arguing it lacked foundation, was conclusory, lacked in reason and fact, contained improper legal conclusions, and failed to address issues raised by their experts. The Scripps Defendants and Dr. Ritt also criticized Dr. Boggeln's declaration because he had not reviewed any transcripts from depositions completed in the case and did not acknowledge Elizabeth's dire condition and end-stage cancer.
The trial court sustained the Scripps Defendants' and Dr. Ritt's objections to Dr. Boggeln's declaration. The court found Dr. Boggeln provided little or no explanation for his conclusions, conducted only a limited review of "pertinent" medical records from Scripps and Emeritus, and omitted any mention of Elizabeth's end-stage terminal cancer.
On June 10, 2016, Plaintiffs submitted amended declarations from Dr. Boggeln in support of their oppositions to Dr. Lugo's, Dr. Mehta's, and Dr. Shieh's summary judgment motions. On June 17, 2017, Plaintiffs submitted a second amended declaration from Dr. Boggeln in opposition to Dr. Mehta's and Dr. Shieh's summary judgment motions. In his amended and second amended declarations, Dr. Boggeln expressed substantially the same opinions as in his original declaration. However, Dr. Boggeln acknowledged Elizabeth's cancer diagnosis and stated that cancer patients are not barred
Drs. Lugo, Mehta, and Shieh objected to Dr. Boggeln's amended declarations, arguing they lacked foundation, were conclusory, contained improper legal conclusions, and overlooked key facts, such as Dr. Nasar's opinion that Elizabeth would die within a matter of days after her transfer to Scripps. The trial court sustained Dr.
1. Opinions on Causation
We begin our analysis with the fatal flaw in Dr. Boggeln's declarations, namely his failures to adequately address causation. Even applying a liberal construction to Dr. Boggeln's declarations, he did not attempt to explain how any of Defendants' alleged breaches of the standard of care and failures to comply with the Probate Code caused Elizabeth injury or death or how requested measures would have, in Dr. Boggeln's words, "improved the quality of her life." Not only did he fail to acknowledge Elizabeth's severely deteriorated condition when she was admitted to Scripps, he never explained how her compromised condition impacted his conclusions.
In his May declaration, without explanation or consideration of Elizabeth's dire medical condition, Dr. Boggeln stated the life-sustaining treatment Elizabeth and Christopher had requested, including CPR, artificial nutrition, and hydration, "would not have caused her harm, and in fact would have sustained her life and improved the quality of her life." He continued by opining "to a reasonable degree of medical probability" that Defendants' "standard of care and Probate Code violations were a substantial factor in injuring, and causing or contributing to [Elizabeth's] death." The trial court sustained Defendants' objections to these opinions on the basis that they were conclusory and lacked foundation. The trial court did not abuse its discretion in reaching this conclusion.
Without at least some minimal basis, explanation, or reasoning, Dr. Boggeln's conclusions as to causation in his May declaration had no evidentiary value. ( Bushling, supra ,
In an attempt to remedy the deficiencies in Dr. Boggeln's May 2016 declaration, Plaintiffs submitted amended declarations
Finally, we note that the trial court also criticized Dr. Boggeln's declaration because he relied on the determination of a licensed vocational nurse at Emeritus that Elizabeth's prognosis was greater than six months. Plaintiffs argued the trial court was required to accept the nurse's statement as true. However, a trial court can inquire into the type of material on which an expert relies. ( Sargon, supra ,
In this case, Dr. Boggeln relied on a form a licensed vocational nurse at Emeritus had completed in which she checked a box indicating Elizabeth did not have a condition or chronic disease that may result in life expectancy of less than six months. Although the prognosis notation required physician documentation and none was included with the form, Dr. Boggeln did not address or explain that deficiency. Instead, he appeared to take the nurse's prognosis determination as
As will be discussed, without expert testimony on causation, Plaintiffs could not defeat summary judgment on their professional negligence and wrongful death causes of action against Defendants.
In his declarations, Dr. Boggeln expressed numerous opinions regarding Defendants' alleged failures to comply with the standard of care. His opinions, however, were deficient because they did not account for each Defendant's differing role in Elizabeth's care. Instead, in discussing the alleged standard of care violations, Dr. Boggeln grouped the physician defendants and Scripps together. For example, he opined that "Scripps, Ritt, Lugo, Wiesner, Mehta, Evans, Shieh, King, Pund, and Ettari's failure to provide Dilaudid for nearly ten hours on February 20, 2013 failed to comply with the standard of care." Dr. Boggeln did not explain how each of these defendants was responsible for the failure of Elizabeth to receive pain medication during the relevant time period.
In fact, Dr. Boggeln acknowledged that some of the physicians he claimed violated the standard of care concerning pain medication did not see or treat Elizabeth on February 20, 2013. Specifically, Drs. Shieh and Wiesner had no involvement with Elizabeth's care on February 20, 2013, and members of the Appropriate Care Committee met at Elizabeth's bedside thаt day, but the meeting was before the relevant time period, the committee recommended pain medications, and the committee did not make any orders prescribing pain medications. Dr. Boggeln does not state why or how Drs. Shieh and Wiesner and members of the Appropriate Care Committee were responsible for the administration of pain medication on February 20, 2013.
Concerning Drs. Lugo, Mehta, and Ritt, the doctors who had provided Elizabeth medical care on February 20, 2013, Dr. Boggeln admitted that these doctors had prescribed Elizabeth pain medications. Based on the undisputed facts set forth in Dr. Boggeln's declarations, on that day at 7:45 a.m., Dr. Lugo had prescribed 1.5 milligrams of hydromorphone every two hours as needed for pain. Thereafter, at 11:50 a.m., Dr. Ritt increased the hydromorphone to two milligrams every two hours as needed for pain. At 4:00 p.m., Dr. Mehta observed Elizabeth in pain. At 6:54 p.m., Dr. Mehta placed an order for Elizabeth to receive one milligram of hydromorphone every two hours as needed for pain.
Although Dr. Boggeln opined that Drs. Ritt, Lugo, and Mehta failed to comply with the standard of care because Elizabeth did not receive pain medication between 2:02 p.m. and 11:47 p.m. on February 20, 2013, his medical chronology reveals that these doctors (the only doctors who had provided Elizabeth medical care on that day) acted consistently with the Appropriate Care Committee's recommendations by placing orders for pain
Most, if not all, of Dr. Boggeln's opinions about alleged standard of care violations group Defendants together without explanation as to how each was responsible for the violation. His failure to indicate how each defendant's acts constituted a violation of the standard of care renders his opinions deficient.
3. Opinions Regarding Probate Code Violations
In addition to Dr. Boggeln's opinions concerning causation and alleged standard of care violations, he also expressed opinions relevant to Plaintiffs' causes of action for statutory violations of the Probate Code. Here, Plaintiffs alleged violations of section 4730 (communication of health care decisions); section 4731, subdivision (a) (requesting and maintaining advance directive); section 4732 (recording information about capacity); section 4736 (duties upon declining to comply with a health care instruction); and section 4742, subdivision (b) (concealment or inducement to change advance directive).
In general, the Health Care Decisions Law, as codified in the Probate Code, protects an individual's right to control decisions relating to his or her own health care, including end-of-life decisions, and provides the standards governing health care decisions. The Health Care Decisions Law also provides that where there are technical violations of these sections, health care providers and health care institutions are entitled to immunity when they "act [ed] in good faith and in accordance with generally accepted health care
a. Requesting and Maintaining Patient's Advance Directive
We start with Dr. Boggeln's opinion that the medical professional defendants violated the standard of care and Probate Code by failing to seek out and maintain Elizabeth's advance health care directive (§ 4731, subd. (a) ). On this issue, the trial court sustained Defendants' objections to Dr. Boggeln's opinions in his original and amended declarations that a POLST is different from an advance directive; and the standard of care and Probate Code require a physician who is aware of an advance directive to request a copy of it even if a POLST is already in
Bеcause Dr. Boggeln's opinion was based on his experience, was not otherwise lacking in foundation, and was relevant to whether Defendants acted in accordance with generally accepted health care standards to qualify for immunity, we conclude the trial court erred in sustaining objections to Dr. Boggeln's opinion that a physician has a duty to request the patient's advance directive even if a POLST is in the medical record.
b. Communication, Capacity, Declining to Comply with Patient's Instructions, and Concealment or Inducement to Change Advance Directive
In his declarations in opposition to Defendants' summary judgment motions, Dr. Boggeln also offered opinions relating to Probate Code sections requiring communication of health care decisions, recordation of information about a patient's capacity, medical providers' duties upon declining to comply with a patient's health care instructions, and concealment or inducement to change a patient's advance directive. He stated the physician defendants failed to comply with the standard of care and Probate Code by failing to receive informed consent regarding changes in treatment; failing to note Elizabeth's capacity; failing to continue care; and preparing a draft POLST when the patient's wishes were recorded in writing.
Again, Dr. Boggeln did not account for the Defendants' individual roles and relationships to Elizabeth. He grouped members of the Appropriate Care Committee together with treating doctors, without regard to the differences in their responsibilities to the patient. For exаmple, he did not explain how the
Based on the foregoing, we conclude the trial court acted within its discretion in sustaining objections to Dr. Boggeln's opinions concerning Defendants' alleged breaches of the standard of care and violations of the Probate Code outlined above.
C. Defense Expert Declarations
V. Summary Judgments in Favor of Defendants
Plaintiffs argue the trial court erred in granting summary judgment on their claims for professional negligence, wrongful death, negligent misrepresentation, and statutory Probate Code violations. We address each of Plaintiffs' arguments separately and reject them for reasons we detail below.
A. Summary Judgment Principles
B. Plaintiffs' Professional Negligence and Wrongful Death Claims
Plaintiffs argue the trial court erred in granting summary judgment on their professional
4. The Appropriate Care Committee's Duty of Care
Plаintiffs challenge the trial court's finding that Drs. Evans, Boyd-King, Ettari, and Pund (members of Scripps's Appropriate Care Committee) did not owe Elizabeth a duty of care.
" 'Whether a defendant owes a duty of care is a question of law.' " ( Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989)
Several courts have found a physician-patient relationship does not exist where the physician does not affirmatively treat or directly advise the patient. ( Rainer v. Grossman (1973)
In this case, members of the Appropriate Care Committee evaluated Elizabeth's medical history, provided an opinion on what constituted medically ineffective care, and made recommendations when the treating physicians' plan of care was inconsistent with the patient's directives. Although
Further, committees such as the Appropriate Care Committee serve a valuable role in patient care. They act as an independent review of what constitutes medically ineffective care and the patient's best interests when a treating physician declines to comply with a patient's health care instruction. The imposition of liability under these circumstances would be counterproductive to a valuable health care resource and would discourage physicians from participating in volunteer committees that serve an important and difficult role in circumstances in which medical providers believe complying with a patient's directives would be medically ineffective and cause the patient harm. For these reasons, public policy considerations militate against imposing a duty of care in this case.
5. Negligence Per Se
C. Alleged Probate Code Violations
Plaintiffs alleged Defendants violated multiple provisions of the Health Care Decisions Law, including sections 4730, 4731, subdivision (a), 4732, 4736, and 4742, subdivision (b). A health care provider or health care
"The main purpose of the Health Care Decisions Law is to provide 'procedures and standards' governing 'health care decisions to be made for adults at a time when they are incapable of making decisions on their own and [tо] provide[ ] mechanisms for directing their health care in anticipation of a time when they may become incapacitated.' " ( Conservatorship of Wendland (2001)
However, there are exceptions to a patient's right to control his or her own health care. "A health care provider or health care institution may decline to comply with an individual health care instruction or health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health
1. Immunity Under Section 4740
The trial court found Defendants were immune from liability under section 4740 for alleged violations of the Health Care Decisions Law because Defendants acted in good faith and in accordance with generally accepted health care standards. Plaintiffs contend the trial court erred in finding Defendants were immune from liability.
Under section 4740, "[a] health care provider or health care institution acting in gоod faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for any actions in compliance with [the Health Care Decisions Law ], including, but not limited to, ...: [¶] ... [¶] (d) Declining to comply with an individual health care instruction or health care decision, in accordance with Sections 4734 to 4736, inclusive." (Italics added.)
Plaintiffs first argue that for Defendants to have immunity under section 4740, they had to satisfy three requirements: (1) Defendants must
Here, Defendants produced evidence that they acted in good faith, and Plaintiffs did not present contradictory evidence raising a triable issue of fact. In particular, Defendants' experts stated Defendants' "actions, orders, recommendations and communications were directed at providing only medically beneficial and medically effective care to the patient without causing her further pain, suffering or harm." Although the experts did not use the term "good faith," their statements establish the substance of that requirement. Specifically, evidence that Defendants' actions were directed at providing only medically beneficial and effective care to Elizabeth without causing further pain, suffering, or harm is equivalent to a statement that they acted consistent with their moral and ethical obligations to do no harm to their patient.
Moreover, Defendants presented evidence that the Appropriate Care Committee informed Christopher that physicians could not provide Elizabeth with care they determined was futile because doing so would be outside the bounds of their ethical
Plaintiffs did not present evidence that Defendants had a lack of good faith or acted with a dishonest purpose. Thus, the uncontradicted evidence established Defendants acted in good faith.
Similarly, the defense expert declarations were sufficient to establish Defendants acted in accordance with generally accepted health care standards concerning communication of health care decisions (§ 4730), recording information about Elizabeth's capacity (§ 4732), fulfilling their duties upon declining to comply with Elizabeth's health care instructions (§ 4736), and suggesting Elizabeth's family members change her health care instructions, including by preparing a draft POLST (§ 4742, subd. (b) ). Specifically, Defendants presented evidence through expert declarations that they acted reasonably, appropriately, and within the standard of care in performing these actions. Compliance with the standard of care means Defendants acted in accordance with generally accepted health care standards. ( Osborn v. Irwin Memorial Blood Bank (1992)
Plaintiffs did not present admissible evidence to the contrary because, as we previously explained, the trial court did not abuse its discrеtion in striking Dr. Boggeln's conclusory opinions that Defendants violated the standard of care with respect to communicating health care decisions, recording Elizabeth's capacity, recommending Elizabeth not undergo advanced life support measures, and preparing a draft POLST that changed Elizabeth's health care instructions. (See part IV.B.3.b, ante .)
Based on the foregoing, we conclude the trial court did not err in finding Defendants were immune from liability under section 4740 for alleged violations of sections 4730, 4732, 4736, and 4742, subdivision (b).
On Plaintiffs' remaining Probate Code claim, alleging Defendants violated section 4731, subdivision (a) by failing to request and maintain a copy of Elizabeth's advance health care directive in her medical record, the parties produced conflicting evidence on whether Defendants complied with the standard of care. Accordingly, the trial court erred in concluding Defendants were immune from violations of section 4731, subdivision (a). However, in their opening brief, Plaintiffs did not argue that the trial court erred in granting summary judgment on their section 4731, subdivision (a) claim against Drs. Lugo, Mehta, and Shieh. Thus, we need not consider section
2. Requesting and Maintaining Patient's Advance Directive (Section 4731)
Plaintiffs argue the trial court erred in granting summary judgment on their section 4731, subdivision (a) claim against the Scripps Defendants and Dr. Ritt because these defendants knew of Elizabeth's advance health care directive, yet failed to request a cоpy and maintain it in her chart.
Section 4731, subdivision (a), provides: "A supervising health care provider who knows of the existence of an advance health care directive ... shall promptly record its existence in the patient's health care record and, if it is in writing, shall request a copy. If a copy is furnished, the supervising health care provider shall arrange for its maintenance in the patient's health care record." (Italics added.)
Preliminarily, we must consider whether the Scripps Defendants and Dr. Ritt were supervising health care providers because section 4731 applies only to those providers. Supervising health care providers are either the patient's primary physician or the health care provider who has undertaken primary responsibility for the patient's health care. (§ 4641.) A "[p]rimary physician" is "a physician designated by a patient or the patient's agent, conservator, or surrogate, to have primary responsibility for the patient's health care or, in the absence of a designation or if the designated physician is not reasonably available or declines to act as primary physician, a physician who undertakes the responsibility." (§ 4631.)
Because there is no indication in the record that Elizabeth or Christopher, as her surrogate, designated a primary physician, we must consider whether Defendants undertook primary responsibility for Elizabeth's health care.
The Scripps Defendants include Scripps, Knight, and Drs. Evans, Boyd-King, Pund, and Ettari. Plaintiffs argue Knight qualified as a supervising health care provider because she undertook primary responsibility for Elizabeth's discharge planning. However, it was undisputed that, in this case, the physicians made transfer decisions and rеcommendations, not Knight, who was merely acting to facilitate those decisions. By assisting with Elizabeth's transfer to another facility, Knight did not undertake primary responsibility for Elizabeth's health care. Thus, she was not a supervising health care provider for purposes of section 4731.
Plaintiffs contend Drs. Evans, Boyd-King, Pund and Ettari, as members of the Appropriate Care Committee, were supervising health care providers because they decided the care Elizabeth would receive while she was at Scripps. However, as we previously explained, the evidence established the Appropriate Care Committee members made recommendations to Elizabeth's treating
Plaintiffs also suggest Dr. Evans was a supervising health care provider because he was chief of staff at Scripps and Drs. Ritt and Lugo sought his advice. Plaintiffs do not cite to any authority stating a hospital's chief of staff is a supervising health care provider solely by virtue of his or her role within the hospital. Further, Plaintiffs do not cite to evidence establishing Dr. Evans undertook primary responsibility for Elizabeth's health care.
We assume Dr. Ritt was a supervising health care provider for purposes of section 4731. We nevertheless conclude the trial court properly granted summary judgment in Dr. Ritt's favor on Plaintiffs' section 4731, subdivision (a) cause of action.
Section 4731, subdivision (a) requires a supervising health care provider who knows of a patient's advance health care directive to record its existence in the patient's health care record, request a copy if it is in writing, and maintain a copy in the patient's health care record if it is furnished. For a supervising health care provider to be subject to liability for violating that section, the provider must have intentionally committed the violation. (§ 4742 [stating "[a] health care provider ... that intentionally violates this part [,
Plaintiffs produced evidence Christopher informed Dr. Ritt of the contents of Elizabeth's advance health care directive, but Dr. Ritt did not request a copy. Elizabeth's health care record noted she had an advance directive. However, the record did not include a copy of it. Instead, Elizabeth's chart contained a POLST, which confirmed Christopher's representation of the contents of Elizabeth's advance directive.
According to Dr. Ritt's expert, Dr. Roeland, a POLST is often considered the same as an advance directive, the reference in Elizabeth's chart to an advance directive likely referred to a POLST, and Dr. Ritt was not required to request a copy of Elizabeth's advance health care directive. Plaintiff's expert, Dr. Boggeln, contradicted Dr. Ritt's expert by opining a POLST is different than an advance directive, and a physician who is aware of an advance directive should request a copy of it even if the patient's file contains a POLST and the patient's family has confirmed the contents of the advance directive.
Despite the conflicting opinions as to whether Dr. Ritt should have requested a copy of Elizabeth's advance directive, the trial court did not err in granting summary judgment because there was no evidence that Dr. Ritt intentionally violated section 4731, subdivision (a), which was required to subject him to liability. (§ 4742.) The evidence established Dr. Ritt knew of the contents of Elizabeth's advance health care directive requiring advanced life support measures to prolong her life. He did not request a copy of the advance directive because he believed Christopher's representations regarding its contents. Dr. Ritt thought Elizabeth should not undergo advanced life suppоrt
Moreover, the purpose of the recording requirement in section 4731 is to "reduce[ ] the risk that a health-care provider or institution, or agent, [conservator] or surrogate, will rely on an outdated individual instruction or the decision of an individual whose authority has been revoked." (Cal. Law Revision Com. com., 52B West's Ann. Prob. Code (2009 ed.) foll. § 4731, p. 448.) There was no evidence that Dr. Ritt, or any other health care provider, relied on an outdated instruction or the decision of an individual
Based on the foregoing, we conclude the trial court properly granted summary judgment in favor of the Scripps Defendants and Dr. Ritt on Plaintiffs' cause of action for violation of section 4731, subdivision (a).
D. Plaintiffs' Negligent Misrepresentation Claim
VI.-VIII.*†
DISPOSITION
The judgment in favor of Dr. Ritt is reversed to the extent it holds Christopher and McDermet responsible for Dr. Ritt's expert costs in the amount of $6,000. In all other respects, the judgments are affirmed. Defendants are entitled to costs on appeal.
WE CONCUR:
O'ROURKE, J.
DATO, J.
Notes
For purposes of clarity, we refer to Elizabeth Alexander, Clenton Alexander, and Christopher Alexander by their first names.
Plaintiffs requested we take judicial notice of (1) a California Law Revision Commission recommendation regarding "Health Care Decisions for Adults Without Decisionmaking Capacity," and (2) a document from the California Medical Association, entitled "Legal and Ethical Principles Applicable to Requests for Medically Ineffective or Non-Beneficial Treatment." These documents were not presented to the trial court. Plaintiffs offer no explanation for their failure to request judicial notice in the trial court and we discern no "exceptional circumstances" that would justify deviating from the general rule that reviewing courts do not take judicial notice of documents not presented to the trial court. (Vons Companies, Inc. v. Seabest Foods, Inc . (1996)
We refer to Scripps; nurse Knight; and Drs. Evans, Boyd-King, Pund, and Ettari together as the Scripps Defendants. We refer to the Scripps Defendants together with Drs. Ritt, Lugo, Mehta, and Shieh as Defendants.
Undesignated statutory references are to the Probate Code.
See footnote *, ante .
Plaintiffs did not allege who was responsible for the administration of pain medications, as prescribed by Elizabeth's physicians, nor did they sue any nurses who may have been involved in the administration of pain medications. Further, Plaintiffs did not contend in opposition to Defendants' summary judgment motions that Scripps or the physician defendants were liable for any nurse's administration of pain medications by virtue of an employment relationship.
For similar reasons, we conclude the trial court acted within its discretion in sustaining objections to Dr. Boggeln's opinions concerning whether Defendants fulfilled their duties upon declining to comply with Elizabeth's health care instructions and whether Defendants concealed or induced Elizabeth or Christopher to change Elizabeth's advance directive.
See footnote *, ante .
See footnote *, ante .
See footnote *, ante .
See footnote *, ante .
See footnote *, ante .