Sababin v. Superior Court

• Decision Date: 25 October 2006
• Docket Number: No. B190060.,B190060.
• Citation: 50 Cal.Rptr.3d 266,144 Cal.App.4th 81
• Court: California Court of Appeals Court of Appeals
• Parties: Priscilla SABABIN et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Covina Rehabilitation Center, Real Party in Interest.

50 Cal.Rptr.3d 266

144 Cal.App.4th 81

Priscilla SABABIN et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Covina Rehabilitation Center, Real Party in Interest.

No. B190060.

Court of Appeal, Second District, Division 2.

October 25, 2006.

Maher Guiley & Maher, Steven R. Maher, Sun City, William M. Artigliere; Esner & Chang, Stuart B. Esner, Los Angeles, and Andrew N. Chang, Oakland, for Petitioners.

No appearance for Respondent.

Giovanniello & Michels, Anaheim, Helen A. Michels, Karen A. Bocker, Kelene M. Stevens, and B. Eric Nelson for Real Party in Interest.

ASHMANN-GERST, J.

Arlene Renteria (Renteria) was diagnosed with Huntington's Chorea, a disease that subjected her to the risk of skin deterioration. Though there is a conflict of evidence that must be resolved by a trier of fact, there is evidence that Renteria was transferred to Huntington East Valley Hospital (East Valley) from Covina Rehabilitation Center (Covina)¹ with sores, ulcers and methcillin resistant staph aureus (MRSA). She died two months later at Kindred Hospital at age 38 due to infection to a sacral decubitus skin ulcer. For three years prior to her admission to East Valley, Renteria was in the care of Covina. Renteria's successors in interest (Renteria's successors)² sued Covina for, among other things, dependent adult abuse on the theory that Covina did not satisfy its custodial obligation to meet Renteria's basic needs when it failed to follow the care plan for the maintenance of Renteria's skin.

The trial court granted summary adjudication of the dependent adult abuse cause of action³ on the ground that there was no evidence that Covina was guilty of something more than professional negligence. Renteria's successors challenge the trial court's order by way of the instant writ petition, contending, inter alia: (1) there are triable issues as to whether Covina's employees acted with recklessness, oppression or malice when they failed to follow the care plan Covina established for maintaining the health of Renteria's skin,⁴ and (2) there are triable issues as to whether Covina can be held liable for the conduct of its employees.

After careful review, we agree with Renteria's successors. We conclude that there are triable issues as to whether Covina's employees were guilty of reckless, oppressive or malicious neglect because there is evidence that they failed to follow Renteria's care plan for mamtaining the health of her skin. Accordingly, we conclude that this is proper case for issuance of a peremptory writ.

Upon remand, the trial court shall consider Covina's argument that it is not liable for its employees' conduct.⁵

FACTS

Background

Huntington's Chorea is a genetic disorder characterized by uncontrolled movements, progressive dementia, psychiatric problems, and psychoses caused by the degeneration of nerve cells in the brain. In general, there is loss of cognitive and mental functions. People affected with this disorder are at increased risk for infection and weight loss.

Renteria had aphasia and dysphagia. She needed a gastrostomy tube and was dependent upon others for nutrition and hydration. On June 16, 2000, she was transferred from Specialty Hospital of Southern California to Covina. At the time, she was 93 pounds. By April 16, 2001, her weight had fallen to 75.4 pounds. After her diet was adjusted, her weight increased to approximately 105 pounds. Toward the end of 2002, her tube feedings were reduced. When she was weighed on February 28, 2003, she was down to 91 pounds.

Renteria's care plan indicated that Covina employees would monitor her skin on a daily basis for redness or breakdown and report to a physician for a treatment order in the event of skin problems. In late February 2003, Renteria developed diarrhea. Her condition did not improve, and she was transferred to East Valley. When Renteria was admitted to the emergency room at East Valley on March 2, 2003, she had lacerations on her toes and feet and had poor skin condition on both buttocks, which were dark red and squishy. Covina had no documentation of those conditions, nor had a physician been notified for a treatment order. East Valley noted that Renteria had a pustule with MRSA on her left hand. When she was placed in a room five hours after admission to the emergency room, East Valley discovered reddened skin on Renteria's sacral area.

The second amended complaint

In the fourth cause of action for abuse of a dependent adult, the second amended complaint averred: When Renteria was admitted to East Valley, she was diagnosed with acute infective diarrhea, an infected stage IV decubitus ulcer on her left hand, a left hand pustule, dehydration, renal failure, and an electrolyte imbalance. A wound culture revealed the presence of MRSA in her left hand. Renteria was found to be 82 percent underweight. Pressure ulcers and a low albumin indicated that she was suffering from visceral protein malnutrition. There were pressure sores on her buttocks area. As well, she had vaginal bleeding. Her pubic hair had been shaved; a gynecological exam revealed a small abrasion on Renteria's left minor labia. She died a few months later. The cause of death was MRSA sepsis to an infected sacral skin ulcer. Her pain and subsequent death were caused by Covina's willful failure to provide her with necessary care.

Covina's motion for summary adjudication

In support of its motion for summary adjudication of the fourth cause of action,⁶ Covina argued: Huntington's Chorea is a devastating genetic degenerative brain disorder that is characterized by uncontrolled movements, progressive dementia, and psychoses. There is no known cure for Huntington's Chorea, and it is usually fatal 10 to 15 years after its onset. Renteria was diagnosed in her early 20s, and when she died she was at the end stage of the disease. When she was admitted to East Valley's emergency room, the care providers did not indicate any problems regarding Renteria's sacral area. After she was admitted, redness in her sacral area was noted for the first time. Her skin remained intact for several days until her sacral area developed a stage three decubitus ucler. Renteria did not suffer the decubitus ulcer, or abuse, malnutrition, dehydration and infections at Covina. Covina complied with the standard of care. Her nutritional status was maintained to the highest practical degree considering her disease. She suffered dehydration due to a bout of diarrhea, a condition that was being treated.

Covina cannot be held liable under the elder and dependent adult abuse statutes unless it injured Renteria due to a total absence of care. Moreover, dependent adult abuse arises in the context of custodial care, not in the context of professional negligence. Neglectful adult dependent care is the failure to attend to the basic needs and comfort of dependent adults. Covina never failed to provide Renteria with her basic needs; i.e., there is no evidence of custodial neglect. Finally, Renteria's successors have no evidence that Covina ratified any wrongful acts allegedly committed by its employees.

Dr. J. Thomas Millington reviewed Covina's records and declared: (1) Renteria was turned and repositioned on a regular basis; (2) she was monitored and her status was reported to her physician and family; (3) she was given regulated feedings to maintain nutrition and hydration; and (4) her skin condition was checked on a regular basis, and her bed was padded.

Renteria's successors' opposition

In opposition, Renteria's successors argued that Covina was guilty, inter alia, of the following: (1) failure to provide medical care for her physical and mental health needs; (2) failure to protect her from health and safety hazards; and (3) failure to reposition her.

They pointed out that Covina violated multiple nursing home regulations, some of which resulted in deficiency findings by the Department of Health Services (Department). According to the Department's findings: Covina had a care plan which required Renteria's skin to be monitored everyday for redness and skin breakdown. A physician was to be notified if there was a need for a treatment order. Nonetheless, when Renteria was admitted to East Valley, she had red, squishy buttocks, a bleeding toe, and a bruised and reddened foot. Covina had no documentation of these conditions, and the medical chart revealed that a physician was never contacted for a treatment order.

The order granting summary adjudication

The trial court granted summary adjudication of the dependent adult abuse cause of action on the grounds that the evidence offered by Renteria's successors showed nothing more than negligence.

This writ petition followed.

STANDARD OF REVIEW

We review summary adjudication de novo. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001, 67 Cal.Rptr.2d 483.) In doing so, we "consider[ ] all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) We accept as undisputed fact only those portions of the moving party's evidence that are uncontradicted by the opposing party. (Hersant v. Department of Social Services, supra, at p. 1001, 67 Cal.Rptr.2d 483.) Additionally, we strictly construe the moving party's evidence and liberally construe the opposing party's evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838, 89 Cal.Rptr.2d 540.)

DISCUSSION

1. The applicable law.

Pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Act), heightened remedies are available to plaintiffs who successfully sue for dependent adult abuse. Where it is proven by clear and convincing evidence that a defendant is liable for neglect or physical abuse, and the plaintiff proves that the defendant acted with recklessness, oppression, fraud, or malice, a...