Worsham v. O'Connor Hosp.
Decision Date | 20 May 2014 |
Docket Number | H037838,H037749 |
Court | California Court of Appeals Court of Appeals |
Parties | GREGORY WORSHAM, Plaintiff and Appellant, v. O'CONNOR HOSPITAL ET AL., Defendant and Respondent. |
(Santa Clara County
Appellant Gregory Worsham1 has two appeals pending in this court. They both arise from the same case in the Santa Clara County Superior Court. In the underlying case, Worsham alleged negligence and elder abuse against two separate defendants, O'Connor Hospital, Inc. (O'Connor) and Daughters of Charity Health System, Inc. (Daughters of Charity). The court sustained O'Connor's and Daughters of Charity Health System, Inc.'s demurrer to Worsham's elder abuse claim in his second amended complaint without leave to amend. Following this ruling, Worsham dismissed his negligence cause of action, and judgment was entered in favor of O'Connor and Daughters of Charity.
Worsham now appeals the court's ruling sustaining the demurrer to the elder abuse cause of action without leave to amend. Despite filing an appeal as to defendant Daughters of Charity Health System, Inc., Worsham states in his opening brief that he only challenges the trial court's rulings as it pertains to O'Connor. We deem Worsham's statement as a request for dismissal of the appeal as to defendant Daughters of Charity and will dismiss the appeal accordingly.
With regard to defendant O'Connor, Worsham asserts the trial court abused its discretion in sustaining the demurrer to the elder abuse claim without leave to amend.
Juanita Worsham entered O'Connor Hospital on July 31, 2010 to undergo hip surgery to treat a fractured hip she suffered as a result of falling in her home. Following surgery, Ms. Worsham was discharged to O'Connor Hospital's "Transitional Care Unit" for rehabilitative care.
On August 20, 2010, Ms. Worsham suffered a fall at the Transitional Care Unit. As a result of the fall, Ms. Worsham broke her right arm and re-broke her hip.
Ms. Worsham filed her original complaint on March 30, 2011, and her first amended complaint on April 18, 2011 alleging violation of the Elder Abuse Act (Wel. & Inst. Code, §§ 15600, et seq.), and professional negligence. The basis of Ms. Worsham's claim was that O'Connor's Transitional Care Unit was understaffed and undertrained, and that the lack of sufficient well-trained staff caused Ms. Worsham's fall.
O'Connor demurred to the first amended complaint and the court sustained the demurrer on the ground that Ms. Worsham failed to plead sufficient facts regarding O'Connor's understaffing and under-training.
Ms. Worsham filed her second amended complaint on July 15, 2011 to which O'Connor also demurred. The hearing for the demurrer was set for September 15, 2011. The court issued a tentative ruling prior to the hearing that stated: The tentative ruling also stated that the court would sustain the demurrer without leave to amend.
Ms. Worsham did not challenge the tentative ruling, nor did she appear at the hearing on the demurrer on September 15, 2011. The court adopted its tentative ruling, and sustained the demurrer without leave to amend.
Ms. Worsham subsequently filed a motion for reconsideration on September 26, 2011, asserting she had learned new facts through discovery responses she received in August 2011 that could support her elder abuse claim and provide more specificity. The court denied the motion on the ground that Ms. Worsham had the information prior to the hearing on the demurrer, and could have brought the new facts to the court's attention at that time.
Ms. Worsham dismissed the remaining cause of action for negligence, and judgment was entered in favor of O'Connor. Ms. Worsham filed a notice of appeal.
On appeal, Worsham asserts the trial court erred in sustaining O'Connor's demurrer to the elder abuse cause of action without leave to amend.2
A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but notcontentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Elder abuse claims arise under the Elder Abuse Act found in sections 15600 et seq. "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. (Id., § 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 pre-death pain and suffering. (Welf. & Inst.Code, § 15657, subd. (b).)
(Delaney v. Baker (1999) 20 Cal.4th 23 (Delaney).) Thus, when the medical care of an elder is at issue, (Carter v. Prime Health Care Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404-405 (Carter).)
The Elder Abuse Act does not apply to simple or gross negligence by health care providers. (Delaney, supra, 20 Cal.4th at p. 28, fn. 2.; Covenant Care, supra, 32 Cal.4th at p. 785.) To obtain the enhanced remedies of section 15657, "a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct." (Delaney, supra, 20 Cal.4th at p. 31.) (Id. at pp. 31-32.)
In reviewing the Act's provisions on reckless conduct and professional negligence (§§ 15657 & 15657.2), the Delaney court concluded that " 'reckless neglect' under section 15657 is distinct from causes of action 'based on . . . professional negligence' within the meaning of section 15657.2." (Delaney, supra, 20 Cal.4th at p. 31.) The courtheld, "a health care provider which engages in the 'reckless neglect' of an elder adult within the meaning of section 15657 will be subject to section 15657's heightened remedies." (Id. at p. 27.)
The present case is similar to Carter, supra, 198 Cal.App.4th 396 in which the plaintiff alleged elder abuse against a hospital that admitted and treated him for pneumonia and other conditions that developed while he was receiving care at a skilled nursing facility. In Carter, the elder was hospitalized three times. As to two of the hospitalizations, there were either no allegations of harmful conduct or no allegations of causation. (Id. at pp. 407-408.) On the third occasion, the plaintiff alleged the elder died because the hospital did not administer the antibiotics he needed to treat his pneumonia, and did not have the proper size endotracheal tube in a crash cart, despite " 'false records' " to the contrary. (Id. at p. 408.) The court said: ...
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