Podolsky v. First Healthcare Corp.

• Citation: 58 Cal.Rptr.2d 89,50 Cal.App.4th 632
• Decision Date: 29 October 1996
• Docket Number: No. B091046,B091046
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 7942, 96 Daily Journal D.A.R. 13,126 Hyman PODOLSKY, et al., Plaintiffs and Appellants, v. FIRST HEALTHCARE CORPORATION, Defendant and Respondent.

Page 89

58 Cal.Rptr.2d 89

50 Cal.App.4th 632, 96 Cal. Daily Op. Serv. 7942,

96 Daily Journal D.A.R. 13,126

Hyman PODOLSKY, et al., Plaintiffs and Appellants, v. FIRST HEALTHCARE CORPORATION, Defendant and Respondent.

No. B091046.

Court of Appeal, Second District, Division 5, California.

Oct. 29, 1996.

As Modified Nov. 5, 1996.

[50 Cal.App.4th 637] Bird, Marella, Boxer, Wolpert & Matz, P.C., Jason D. Kogan and Thomas R. Freeman, Bet Tzedek Legal Services, and Eric M.

Carlson, Los Angeles, for Plaintiffs and Appellants.

Hooper, Lundy & Bookman, Inc., and Jay N. Hartz, Los Angeles, for Defendant and Respondent.

GODOY PEREZ, Associate Justice.

Plaintiffs Shirley Podolsky, Hyman Podolsky through his attorney in fact Shirley Podolsky, and Darlene Brozovich, on behalf of themselves and the general public, appeal from the summary judgment granted for defendant First Healthcare Corporation and the denial of their summary judgment motion. For the reasons set forth below, we reverse the summary judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY ¹

Defendant and respondent First Healthcare Corporation ("FHC" or "respondent") is licensed by the State of California to run a chain of 42 nursing homes for the elderly throughout the state. ² Plaintiff and appellant Shirley Podolsky is the widow of plaintiff and appellant Hyman Podolsky. Hyman had lived in a nursing home since 1987 and was admitted to a Kaiser Permanente hospital in July 1991 with pneumonia. Near the end of his two-week stay at Kaiser, Shirley Podolsky learned that her husband's nursing home would not take him back since he could no longer walk. After some searching, Shirley was able to find a nursing home with an available bed, the Hillhaven Healthcare Center in Van Nuys, which is owned by FHC.

Hyman Podolsky was taken from Kaiser to Hillhaven by ambulance on July 18, 1991. That morning, a Ms. Owens of Hillhaven handed Shirley Podolsky a stack of papers, stating they were "routine" and that Mrs. Podolsky would have to sign. Owens only described the services which Hillhaven would provide. Mrs. Podolsky had no chance to read the papers and was told to sign as soon as possible in order for her husband to remain at Hillhaven.

Owens placed check marks where Mrs. Podolsky was to sign, including a signature line which made her a "responsible party." The admission agreement stated that a responsible party jointly and severally assumed all liability for any charges incurred by a patient. Owens never explained what the term "responsible party" meant and Mrs. Podolsky believed it referred to the person who would be called in case of an emergency. Mrs. Podolsky said she "signed where Ms. Owens asked me to sign. I would've signed anything in order to make sure that my husband would have a safe place to stay. In addition, I wanted to return to my husband as soon as possible."

Mr. Podolsky was taken to a Kaiser hospital again on January 10, 1992, suffering from chest congestion. Upon his return to Hillhaven three days later, Hillhaven employee Lisa Meadows told Mrs. Podolsky to sign another stack of papers, explaining it was required whenever a patient was gone from the facility for more than 72 hours. Meadows gave Mrs. Podolsky no real chance to read the papers and did not explain what they meant. Meadows placed an "X" in front of certain signature lines, including some where Mrs. Podolsky again signed as a responsible party. That term was not explained to her on this occasion either. Hyman Podolsky died at Hillhaven on September 23, 1992.

Plaintiff and appellant Darlene Brozovich is the daughter of Eunice Walker, who was admitted to a hospital after suffering a massive stroke in August 1990. When the hospital told Brozovich that her mother would be discharged in 10 days, Brozovich began to look for a nursing home since Walker was unable to care for herself. Only two nearby nursing homes had a bed available and Brozovich chose Hillhaven Hospital of Orange, which is also owned by FHC.

When Brozovich's mother was admitted to Hillhaven, the admissions director told Brozovich to sign a stack of admitting papers. Brozovich said the director "just told me to sign the various papers. I tried to ask questions, but the admitting director couldn't answer any of my questions. She just assured me that the papers were routine, and that Medicare would cover my mother's care." As with Shirley Podolsky, check marks were placed where the admissions person wanted Brozovich to sign, including provisions which made her a responsible party. The term was never explained to her and she did not know that it meant she was now liable for her mother's nursing home bills.

Declarations from the family members of other persons admitted to various FHC nursing homes tell similar tales regarding FHC's admissions process. ³ In April 1993, 74-year-old Geraldine Chase was forced to place her 45-year-old critically ill son in a nursing home when he was no longer able to care for himself. She chose the Hillhaven facility in San Francisco. Upon admission, a Hillhaven social worker named Esther told Chase she would have to sign some papers. Esther took Chase to a lounge, showed her a stack of papers, and told Chase where to sign after placing an "X" in front of various signature lines. When Chase said she wanted to read the papers, the social worker said she did not have to read them right then. Esther told Chase she would make copies which could be read later and said Chase should not worry about the papers. Because Esther seemed to be in a hurry, and because of the physical and emotional drain caused by her son's illness, Chase signed the documents, which seemed to her just a formality. Chase also believed she had no choice if her son were to stay at Hillhaven. When she got home, Chase became worried about what she signed and discovered she had signed as her son's responsible party.

In June 1989, Hennili Falldorf was forced to place her mentally-impaired mother in a nursing home since her mother was about to be released from the hospital. Under time pressure due to her mother's imminent release from the hospital, Falldorf settled on the Hillhaven nursing home in San Francisco. When her mother arrived there, Falldorf was asked to go to the office to sign some papers. She was given a stack consisting of at least 50 pages. The admissions counselor did not give her time to read the papers or to get advice and told Falldorf where to sign. Although she signed as a responsible party, Falldorf felt she had to in order to gain admission for her mother.

In April 1992, Martin Kroll was forced to find a new nursing home for his mother when she was unable to return to her previous nursing home following an extended hospital stay at the Kaiser hospital in Woodland Hills for heart problems. He settled on the Hillhaven nursing home in Van Nuys because it was the only one which had both an available bed and a contract with Kaiser hospitals. Admissions coordinator Lisa Meadows showed Kroll a whole stack of papers, which she described as "standard." Meadows flipped through them, directing Kroll to sign in certain locations where she had placed an "X." When Kroll questioned Meadows about the papers, she said they were all "legal and common." Meadows told Kroll he would have to sign as a responsible party in order to have his mother admitted.

Arlene Schweigl decided to place her father in a Hillhaven nursing home in June 1992 when his mental and physical condition deteriorated. When Schweigl's father was admitted, one of the nursing home's employees handed her a stack of papers which Schweigl had to sign. The employee did not explain what the papers meant, put an "X" where Schweigl was supposed to sign, and told her to sign where indicated. Schweigl signed as her father's responsible party even though no one explained what that term meant. She was "expected to sign everything 'one, two three' while ... standing in the hallway; because [she] felt that [she] had no choice, that's exactly what [she] did." She ended up being billed for numerous items from disposable razors and syringes to x-rays.

In November 1991, Gerald Tietz's mother, who was recovering from a stroke and a broken hip, was placed in FHC's Claremont Hillhaven nursing home. On the date of his mother's admission, the 62-year-old Tietz was himself recovering from heart bypass surgery and the removal of his gall bladder. The admissions coordinator, Lucille Gould, called Tietz to her office and placed a stack of papers in front of him. She told Tietz he would have to sign the papers but Tietz objected, since his mother was mentally competent. Gould said that according to the nursing home's procedures, his signature was necessary for his mother's admission. She said the papers did not mean anything and were just a formality. Tietz did not read the stack of papers since it would take too long and Gould said she wanted him to sign right then. Because Tietz was tired and agitated, he signed where requested by Gould, but did note on the documents that he was not signing as a responsible party.

On December 9, 1992, Shirley Podolsky both individually and as her husband's personal representative, along with Brozovich, sued FHC on their own behalf and on behalf of the general public, contending that FHC's admission agreement and procedures were unfair and deceptive and violated or subverted several provisions of federal and state nursing home regulations. ⁴ Through both settlement and dismissal the complaint was eventually whittled down to one cause of action to enjoin FHC's allegedly unfair trade practices under Business and Professions Code section 17200. The only remaining basis for this claim was the allegation that the admission agreements, combined with FHC's admissions procedures, pressured and deceived family members of "private pay" patients (those paying with their own funds, not through government assistance programs)...