Opinion
Plaintiffs Elaine Carter,
I
STATEMENT OF THE CASE
A. Background Facts
Because this case comes to us after entry оf a judgment based on the sustaining of a demurrer, we accept as true the material allegations of plaintiffs’ pleadings. {Shoemaker v. Myers (1990)
Approximately two months after undergoing hip surgery, Grant was admitted to the Hospital for chest pain on April 21, 2008. Grant was 87 years old and had no pressure ulcers at that time.
Two days later, Grant was transferred to the Center, a skilled nursing facility, for short-term rehabilitation therapy. He was generally in good health at the time. The Center advised plaintiffs that Grant would likely remain there for approximately 100 days.
While at the Center, Grant was “continually neglected.” For example, when Grant was bathed in bed, “he was routinely not dried[;] instead he was placed in front of an open window with a fan blowing on him to ‘air-dry’ . . . even during cold days.” This practice of leaving Grant wet and cold for extended periods of time continued despite protests by Grant’s daughter and ultimately caused Grant to develop pneumonia. Additionally, when Grant was showered in a wheelchair, he was often left in unfamiliar surroundings, alone, wet and helpless. The Center also did not provide Grant sufficient nutrition or hydration. Due to this neglect, Grant weakened and developed pneumonia, pressure ulcers on his lower back and buttocks, and sepsis.
On May 6, 2008, Grant was admitted to the Hospital for eight dаys for treatment of the pneumonia, sepsis and pressure ulcers. While at the Hospital,
After discharge from the Hospital, Grant returned to the Center for approximately three months. At the Center, Grant continued to be mistreated; for example, he was isolated, not repositioned and improperly bathed.
On August 18, 2008, Grant was admitted to the Hospital for a third and final time. The Hospital did not give Grant lifesaving medications, including antibiotics, despite records stating the contrary.
B. Trial Court Proceedings
Plaintiffs initiated this action against the Hospital and the Center on October 27, 2009. In their first amended complaint, plaintiffs alleged three separately labeled causes of action against the Hospital: (1) violations of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (the Elder Abuse Act or the Act); (2) willful misconduct; and (3) wrongful death.
The Hospital demurred to the first amended complaint on the grounds that the elder abuse claim did not state facts sufficient to constitute a cause of action and the willful misconduct and wrongful death claims were time-barred. Over plaintiffs’ opposition, the trial court sustained the demurrers without leave to amend. The court ruled (1) the allegations of the еlder abuse claim did not constitute “neglect” within the meaning of the Elder Abuse Act; (2) there is no separate cause of action for willful misconduct; and (3) the
II
DISCUSSION
A. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonаble interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist. (1992)
B. The Trial Court Properly Sustained the Hospital’s Demurrer to the Elder Abuse Cause of Action Without Leave to Amend
Plaintiffs contend the trial court erred in sustaining without leave to amend the Hospital’s demurrer to the first cause of action based on “neglect” of Grant in violation of the Elder Abuse Act.
1. General Legal Principles Applicable to Elder Abuse Based on Neglect
The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a “person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.) In particular, a plaintiff who proves “by clear and convincing evidence” both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of “recklessness, oppression, fraud, or malice” in the commission of such abuse may recover attorney fees and costs. (Welf. & Inst. Code, § 15657, subd. (a).) On the same proof, a plaintiff who sues as the personal representative or successor in interest of a deceased elder is partially relieved of the limitation on damages imposed by Code of Civil Procedure section 377.34 and may recover damages for the decedent’s predeath pain and suffering. (Welf. & Inst. Code, § 15657, subd. (b).)
The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst. Code, § 15610.07, subd. (a), italics added); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., § 15610.07, subd. (b)). The Act defines neglect as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).) “Neglect includes, but is not limited to, all of the following: [ft] (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter, [ft] (2) Failure to provide medical care for physical and mental health needs. . . . [ft] (3) Failure to protect from health and safety hazards, [ft] (4) Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b).) In short, neglect as a form of abuse under the Elder Abuse Act refers “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.” (Delaney v. Baker (1999)
To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. (Welf. & Inst. Code, § 15657.2; Delaney, supra,
Examples of cases involving conduct sufficiently egregious to warrant the award of enhanced remedies under the Elder Abuse Act include the following;
—A skilled nursing facility (1) failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication; (2) left him unattended and unassisted for long periods of time; (3) left him in his own excrement so that ulcers exposing muscle and bone became infected; and (4) misrepresented and failed to inform his children of his true condition. {Covenant Care, supra,32 Cal.4th at p. 778 .)
—An 88-year-old woman with a broken ankle “was frequently left lying in her own urine and feces for extended periods of time” and she developed pressure ulcers on her ankles, feet and buttocks that exposed bone, “despite plaintiff’s persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman.” {Delaney, supra, 20 Cal.4th at pp. 27, 41.)
—A facility caring for a dependent adult with a known condition causing progressive dementia, requiring nutrition and hydration through a gastrostomy tube, and subjecting her to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult’s skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed. (Sababin, supra, 144 Cal.App.4th at pp. 83-87, 90.)
—A 78-year-old man admitted to a skilled nursing facility “was abused, beaten, unlawfully restrained, and denied medical treatment.” (Smith, supra,133 Cal.App.4th at p. 1512 .)
—The staff of a nursing home (1) failed to assist a 90-year-old, blind and demented woman with eating; (2) used physical and chemical restraints to punish the elder and prevent her from obtaining help; and (3) physically and emotionally abused the elder by bruising her, “withholding food and water, screaming at her, and threatening her.” (Benun v. Superior Court (2004)123 Cal.App.4th 113 , 116-117 [20 Cal.Rptr.3d 26 ] (Benun).)
—A skilled nursing facility (1) failed to provide adequate pressure relief to a 76-year-old woman with severe pain in her left leg and identified as at high risk for developing pressure ulcers; (2) dropped the patient; (3) left “her in filthy and unsanitary conditions”; and (4) failed to provide her the proper diet, monitor food intake and assist her with eating. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004)120 Cal.App.4th 426 , 430, 434-435 [15 Cal.Rptr.3d 315 ].)
—A physician “concealed] the existence of a serious bedsore on a nursing home patient under his care, oppose[d] her hospitalization where circumstances indicate[d] it [was] medically necessary, and then abandoned] the patient in her dying hour of need.” (Mack v. Soung (2000)80 Cal.App.4th 966 , 973 [95 Cal.Rptr.2d 830 ] (Mack).)
From the statutes and cases discussed above, we distill several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) fаcts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney, supra,
2. Application of General Legal Principles to This Case
Applying the foregoing legal principles to this case, we do not find in plaintiffs’ pleadings allegations that the Hospital did anything sufficiently egregious to constitute neglect (or any other form of abuse) within the meaning of the Elder Abuse Act. In the portion of the first amended complaint setting forth the facts upon which they base all of their causes of action, plaintiffs mention three admissions of Grant to the Hospital. We shall analyze these general factual allegations pertaining to each hospitalization and other facts alleged in the elder abuse cause of action itself to determine whether the allegations are sufficient to trigger the enhanced remedies available under the Elder Abuse Act. We shall then determine whether the trial court properly sustained the Hospital’s demurrer and denied plaintiffs leave to amend.
a. Insufficiency of the General Factual Allegations
As to the first hospitalization, plaintiffs allege Grant was admitted for chest pains following recent hip surgery and had no pressure ulcers at that time. Nothing is alleged about the Hospital’s denial or withholding of any care or about any injury Grant suffered during this hospitalization. Thus, no violation of the Elder Abuse Act was stated based on this hospitalization. (See Welf. & Inst. Code, § 15610.07, subd. (a) [elder abuse includes neglect “with resulting physical harm or pain or mental suffering”]; Berkley, supra,
During the second hospitalization, plaintiffs allege that Grant was found to be malnourished and to have pneumonia, sepsis, and a pressure ulcer
As to the third and final hospital admission, plaintiffs allege that Grant died because the Hospital did not administer the antibiotics Grant needed to treat his pneumonia and did not have the proper size endotracheal tube in the crash cart, despite “falsе records” to the contrary. Plaintiffs also allege, however, that during this hospitalization, “bags containing fluids [were] being injected into [Grant],” and after “personnel treating [Grant] . . . could not locate a common size endo-tracheal tube in the crash cart,” they began “a search for an appropriate tube elsewhere in the hospital.” These allegations indicate the Hospital did not deny services to or withhold treatment from Grant—on the contrary, the staff actively undertook to provide treatment intended to save his life. Although the failure to infuse the proper antibiotics and the failure to locate the proper size endotracheal tube in time to save Grant’s life might constitute professional negligence (see, e.g., Nelson v. State of California (1982)
b. Insufficiency of the Allegations in the Elder Abuse Cause of Action
No facts alleged in the separately labeled first cause of action for elder abuse cure the defects in plaintiffs’ general factual allegations discussed above. There are no additional facts pertaining to Grant’s medical care or treatment at the Hospital; instead, plaintiffs merely reformat their general factual allegations into 11 separate “counts” of conduct purportedly constituting elder abuse and allege that Grant suffered “serious personal injury and emotional distress” as a result of the conduct. The only acts and omissions listed in these “counts” that arguably are sufficiently egregious to constitute
With respеct to the conduct actually attributed to the Hospital—failure to treat Grant’s pressure ulcers, administer prescribed antibiotics or stock the crash cart; false documentation; and purposefully inadequate testing for medications—plaintiffs contend their allegations the Hospital acted “recklessly” or “fraudulently” suffice to cause “the acts to rise to the level of neglect” under the Elder Abuse Act. We disagree. When we review a ruling on a demurrer, we do not assume the truth of contentions or conclusions of fact or law, such as those contained in plaintiffs’ pleadings. (Moore v. Regents of University of California (1990)
Plaintiffs contend the trial court erred in sustaining the Hospital’s demurrer to the elder abuse cause of action and denying them leave to amend. We disagree.
As we explained in part IIB.2.a. to b., ante, the allegations of the first amended complaint were insufficient to establish neglect within the meaning of the Elder Abuse Act. Thus, even if we assume the Elder Abuse Act creates a separate cause of action for the survivors of a deceased elder (seе fn. 6, ante), the trial court correctly sustained the Hospital’s demurrer. (Code Civ. Proc., § 430.10, subd. (e) [demurrer proper when complaint does not state facts sufficient to constitute cause of action]; Berkley, supra, 152 Cal.App.4th at pp. 529-530 [affirming order sustaining demurrer to elder abuse claim when no allegations of conduct by defendant that injured elder].)
We also conclude the trial court properly denied leave to amend. Plaintiffs have the burden to show how they could further amend their pleadings to cure the defects. (Hendy v. Losse (1991)
Plaintiffs contend the trial court erred in sustaining without leave to amend the Hospital’s demurrer to the third cause of action for willful misconduct because they “have properly pled all of the essential elements of the independent tort of Willful Misconduct, including specifiс facts which demonstrate the [Hospital’s] deliberate indifference and reckless conduct towards Mr. Grant.” We need not address this contention because even if plaintiffs sufficiently stated a cause of action, the trial court correctly sustained the Hospital’s demurrer on the basis of the statute of limitations.
■ A defendant may demur to a complaint on the basis of the statute of limitations when it is clear from the face of the complaint that the action is time-barred. (Code Civ. Proc., § 430.30, subd. (a); Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010)
Plaintiffs base their willful misconduct claim on most of the same conduct asserted in their claim for elder abuse, but in the willful misconduct claim they contend the Hospital acted “willfully” or “fraudulently” instead of “recklessly” or “fraudulently.” (Italiсs added.) Willful misconduct involves more than a failure to use ordinary care; it “ ‘ “ ‘involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.’ ” ’ ” {Calvillo-Silva v. Home Grocery (1998)
When the third cause of action is stripped of its conclusory assertions of willful misconduct, what remains is a survivors’ claim for professional negligence against the Hospital. (See Code Civ. Proc., § 377.20, subd. (a) [cause of action survives death]; Herrero v. Atkinson (1964)
For such professional negligence claims, “the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasоnable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.) The statute begins to run when the plaintiff actually knows or suspects, or reasonably should know or suspect, the injury was caused by wrongdoing. {Gutierrez v. Mofid (1985)
DISPOSITION
The judgment is affirmed.
Huffman, Acting P. 1, and Haller, J., concurred.
A petition for a rehearing was denied September 8, 2011, and on August 24, 2011, the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied October 26, 2011, S196687.
Notes
Carter sues in her individual capacity and as the personal representative of her deceased father.
The Center is not a party to this appeal.
Grant’s daughter suspected her father was not receiving proper medications and immediately after his death requested that his blood be tested to determine whether it contained the prescribed medications. According to plaintiffs, the Hospital “tested for other drugs, nоt the prescription drugs in question. This was plainly done as a cover-up to hide the most basic [breach] of [the Hospital’s] duty to administer [Grant’s] required medication to fight his pneumonia.”
Plaintiffs alleged these same causes of action as well as two others against the Center. Because the Center is not a party to this appeal, we do not determine the sufficiency of any claims as they pertain to the Center.
Because the trial court announced its intention to sustain the demurrer without leave to amend at the hearing, we exercise our discretion to treat the notice of appeal as having been filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
There is a split of authority on whether the Elder Abuse Act creates an independent cause of action or merely provides additional remedies for some other cause of action. (Compare Perlin v. Fountain View Management, Inc. (2008)
At oral argument, plaintiffs’ counsel contended that the Hospital staff failed to carry out orders from a physician regarding treatment of Grant’s pressure ulcers and infusion of antibiotics, and that this failure constituted neglect within the meaning of the Elder Abuse Act. We found no such allegations in plaintiffs’ first amended complaint, however. In any event, because medical treatment generally cannot be provided without a physician’s order (see Bus. & Prof. Code, § 2052, subd. (a) [restricting practice of medicine to licensed physicians]), the mere fact that a physician ordered certain treatment does not establish that the staff’s failurе to provide the treatment was anything more than professional negligence (see Nelson, supra,
Additionally, on the first page of their opening brief, plaintiffs state: “Immediately after his death, Mr. Grant’s daughter demanded a full drug screen to verify antibiotics were administered in accordance with doctors’ orders . . . .”
Plaintiffs do not challenge the trial court’s ruling that their fifth cause of action for wrongful death was also barred by the statute of limitations.