Law and Motion Calendar Department Nine (10:00 a.m.) December 4, (2) Defendant Cheema s Motion to Strike Portions of 2 nd Amended Complaint.

Transcription

1 1. GOODIS v. THE PINES AT PLACERVILLE PC (1) Defendant Cheema s Demurrer to 2 nd Amended Complaint. (2) Defendant Cheema s Motion to Strike Portions of 2 nd Amended Complaint. (3) Defendant Ang s Demurrer to 2 nd Amended Complaint. (4) Defendant Ang s Motion to Strike Portions of 2 nd Amended Complaint. Defendant Cheema s Demurrer to 2 nd Amended Complaint. On April 7, 2015 the court sustained defendant Cheema s demurrer to the elder abuse cause of action with 13 days leave to amend. On April 20, 2015 plaintiffs filed a 2 nd amended complaint against Dr. Cheema and others asserting causes of action for elder abuse, wrongful death and medical malpractice. Defendant Cheema demurs to the elder abuse cause of action on the ground that plaintiffs have failed to plead sufficient facts to establish defendant Cheema subjected plaintiffs decedent to physical abuse, neglect, or financial abuse within the meaning of the Elder Abuse Act; and plaintiffs failed to allege sufficient facts to establish defendant Cheema neglected plaintiffs decedent in a reckless, oppressive, fraudulent, or malicious way. Plaintiffs oppose the demurrer on the grounds that plaintiffs have adequately alleged facts to establish reckless neglect and withholding of care by defendant Cheema and the determination of that issue should be left to the jury. Defendant Cheema replied to the opposition. The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section et seq. (hereinafter the Elder Abuse Act) are statutory, and reflect the Legislature's intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. (See Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney).) (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) 1

2 "Abuse of an elder or a dependent adult" means either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welfare and Institutions Code, ) "Neglect" means either of the following: (1) The 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. (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. (Welfare and Institutions Code, (a).) Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration. (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health. (Welfare and Institutions Code, (b).) In order to sufficiently state an elder abuse by neglect cause of action, the plaintiffs must meet the requirements of Section (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119.) To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [physical, neglectful, or financial elder abuse]. (Welf. & Inst.Code, ) (Benun v. Superior Court (2004) 123 2

3 Cal.App.4th 113, 119.) The sponsor of the elder abuse legislation took the position that the high standard of proof imposed by section clear and convincing evidence of liability, and a showing of recklessness, malice, oppression, or fraud adequately protects providers of care from liability for acts of simple negligence, or even gross negligence. The sponsor urged that existing limitations on damages and attorney fees should not apply in such extreme cases. (Delaney, supra, at p. 32, 82 Cal.Rptr.2d 610, 971 P.2d 986.) The purpose of the Elder Abuse Act is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. (Delaney, supra, at p. 33, 82 Cal.Rptr.2d 610, 971 P.2d 986.) (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 123.) The Act excludes liability for acts of professional negligence. ( ; Delaney v. Baker (1999) 20 Cal.4th 23, 32, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney ).) [FN 7.] Hence, it does not apply to simple or gross negligence by health care providers. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785, 11 Cal.Rptr.3d 222, 86 P.3d 290 (Covenant Care ).) FN7. Section provides: Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action. To obtain the remedies provided by the Act pursuant to 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, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur. (Ibid.) Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or 3

4 injurious nature. (Ibid.) Our Supreme Court teaches that neglect under the Act refers not to the substandard performance of medical services but, rather, 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. [Citation.] Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.] (Covenant Care, supra, 32 Cal.4th at p. 783, 11 Cal.Rptr.3d 222, 86 P.3d 290.) (Emphasis added.) (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, ) the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims. (Covenant Care, at p. 790, 11 Cal.Rptr.3d 222, 86 P.3d 290.) (Emphasis added.) (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, ) The 2 nd amended complaint alleges: defendants Cheema, Ang, and Virk are and at all relevant times were physicians duly licensed to practice medicine in California and employees and agents of defendant The Pines at Placerville Healthcare Center (The Pines); upon plaintiffs decedent s readmission to the Pines, the doctor defendants ordered and the Pines administered a potentially lethal drug, Coumadin; it is well understood both in the physician and skilled nursing community that it is extremely important to monitor a patient s INR levels to avoid thinning the blood too much and/or avoid dangerous drug interactions that can cause hemorrhaging, internal bleeding, acute kidney injury and death; the dosage and administration of Coumadin must be individualized for each patient according to the patient s INR response to the drug; from July 27 through August 20 the defendant doctors continued plaintiffs decedent s treatment plan, which included an order for defendant the Pines to administer the Coumadin 4

5 and a blood sample every other day for INR testing; the results of the INR tests were to be monitored by the defendant doctors and the Pines every other day to ensure plaintiffs decedent s safety while on Coumadin; despite extreme risks of administering Coumadin, the defendant doctors completely and recklessly withheld any monitoring of the INR test results for the entire period of time; the Pines withheld care from plaintiffs decedent by failure to draw the blood for testing and/or failure to monitor the test results; the repeated withholding of care by the doctor defendants in not monitoring decedent s INR from July 27 through August 20 while continuing to order the administration of Coumadin amounted to a significant pattern of deliberate indifference; as a result of all the defendants reckless conduct, decedent s condition continued to deteriorate until he passed away on September 4, 2013; and the defendant doctors grossly neglected plaintiffs decedent by withholding care in the form of failure to monitor INR levels during the period of July 27 to August 20, while continuing to order administration of the potentially lethal drug Coumadin, which ultimately led to plaintiff s decedent suffering from subepithial petechiae, or bleeding into the skin, Coumadin toxicity, acute kidney injury, internal bleeding, and his death. (2 nd Amended Complaint, paragraphs 6, 14, 16-18, 21, 24, and 28.) Plaintiff contends that the opinion in Sababin, supra, controls in that the circumstances that were found in the Sababin opinion to be sufficient reckless conduct to support an elder abuse cause of action are analogous to the situation described in the allegations of the 2 nd amended complaint. Sababin, supra, involved an action where plaintiffs decedent was being cared for in a facility, there was a care plan that required facility employees to monitor her skin daily for redness and breakdown, facility employees were required by the plan to report any skin problems to a physician for a treatment order, and the facility employees ignored the care plan 5

6 entirely. (See Sababin, supra at pages ) The appellate court reversed the trial court s entry of summary adjudication on the elder abuse by neglect cause of action and found triable issues of material fact remained. The appellate court stated: Covina contends that under Covenant Care, a care facility cannot be held liable for dependent abuse unless there is a total absence of care. We disagree. If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) In summary, the facts shown by the evidence submitted in Sababin, supra, was found to be sufficient to raise a triable issue of material fact wherein a jury could find a significant pattern of withholding care, which would form the basis for proving elder abuse by neglect. (Emphasis the courts.) On the other hand, the appellate court in Carter, supra, cited Sababin, supra, at page 406 and found later in the opinion at page 410 that the allegations of conduct attributed to the defendant hospital, including failure to treat pressure ulcers, failure to administer prescribed antibiotics or stock the crash cart, false documentation, and purposefully inadequate testing for medications, were insufficient to state an elder abuse by neglect cause of action. The allegations of the 2 nd amended complaint that certain conduct amounts to withholding of care are merely contentions, deductions or conclusions of fact or law that the court need not take as true for the purposes of demurrer. (Picton v. Anderson Union High School Dist. 6

7 (1996) 50 Cal.App.4 th 726, ) It is the specific facts of alleged misconduct by defendant Cheema in the 2 nd amended complaint that must establish there was a withholding of medical care by failure to provide medical care, rather than negligent or even grossly negligent conduct by a treating physician undertaking medical care, in order to state a cause of action for elder abuse by neglect of a treating physician. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, ) The court also notes that while there are additional allegations relating to alleged conduct of managing agents, directors and/or officers of the defendants that plaintiffs contend amounts to widespread neglect, egregious neglect, and reckless neglect, including an allegation the officers, directors and/or managing agents directly authorized the reckless neglect by specifically knowing that plaintiff s decedent was being neglected by the Pine s personnel and allowing such neglect to continue to occur and failing to take any action to prevent the reckless conduct from further occurring, the allegations appear to be directed at defendant the Pines and not the individual defendant doctors, who as individuals have no managing agents, officers, and/or directors. (See 2 nd Amended Complaint, paragraphs ) Moreover, merely alleging that Defendants, and each of them, engaged in certain conduct through managing agents, directors and/or officers is not a sufficiently specific allegation of fact establishing that the individual defendant doctors engaged in such conduct in the absence of allegations of specific facts as to how each of the individual defendant doctors, as individuals, were organized in the form of a corporate entity or another entity that has managing agents, directors and/or officers where plaintiffs admitted in the 2 nd amended complaint that the doctor defendants were individual employees or mere agents of defendant the Pines and not independent business organizations, or managing agents, directors and/or officers of the Pines. (See 2 nd Amended Complaint, paragraph 6.) The allegations lack sufficiently specific 7

8 facts alleging that each of the individual defendant doctors engaged in the complained of conduct. In short, the facts constituting the neglect have not been pled with the mandated particularity, in accordance with the pleading rules governing statutory claims. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, ) Therefore, these allegations add nothing to establishing the defendant doctors, including defendant Cheema, were liable for elder abuse by neglect in performing their duties as the decedent s treating physicians. Ignoring all deductions, contentions, and conclusions of reckless conduct, reckless neglect, and withholding of care, the specific facts alleged against defendant Dr. Cheema are that he continued to provide care to plaintiffs decedent by approving the administration of Coumadin without reviewing the current INR test results and Dr. Cheema failed to monitor plaintiffs decedent s INR for Coumadin therapy, which allegedly resulted in the eventual death of plaintiffs decedent. In other words, Dr. Cheema is not alleged to have engaged in a significant pattern of withholding of care and, in fact, is alleged to have continued to provide care in a negligent manner by not keeping up with review of the INR test results. Inasmuch as purposefully inadequate testing for medications can not constitute a pattern of withholding care resulting in liability for elder abuse, the same finding would appear to apply in the analogous circumstances alleged in this action. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In summary, taking the allegations of fact as true and ignoring contentions, deductions, and conclusions of law and/or fact for the purposes of this demurrer, the court finds that there are insufficient allegations of specific fact to establish that defendant Cheema is guilty of reckless, oppressive, fraudulent, or malicious conduct. The allegations of fact that a doctor failed to review test results are analogous to the inadequate testing allegation that was found in Carter, 8

9 supra, to have been insufficient to state neglect under the Elder Abuse Act. The specific facts alleged against defendant Cheema do not establish something beyond simple or gross negligence by a treating physician undertaking medical care of the decedent. Plaintiff has had three opportunities to sufficiently allege the particular facts establishing an elder abuse cause of action against the doctor defendants and has failed. There does not appear to be a reasonable possibility that the pleading can be cured by amendment, the 2 nd amended complaint appears to be incapable of amendment to cure the defect, and plaintiff has not sufficiently demonstrated how the 2 nd amended complaint can be amended to cure the defect. (See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.) Defendant Cheema s demurrer to the elder abuse cause of action is sustained without leave to amend. Defendant Cheema s Motion to Strike Portions of 2 nd Amended Complaint. Defendant Cheema moves to strike the prayer for punitive damages and treble damages on the following grounds: the action sounds in medical negligence and plaintiffs failed to obtain leave of the court under Code of Civil Procedure, to assert a claim for punitive damages in this medical professional negligence action; enhanced damages in elder abuse cases, including punitive and treble damages, are not available in this case against defendant Cheema, because plaintiffs have failed to sufficiently allege a cause of action for elder abuse; and plaintiffs have failed to adequately allege specific facts establishing defendant Cheema acted with oppression, fraud, or malice. Plaintiffs oppose the motion to strike on the ground that plaintiffs have adequately alleged facts to establish reckless neglect by Dr. Cheema to support a claim for enhanced damages of punitive and treble damages for elder abuse and the issue should be decided by the trier of fact. Defendant Cheema replied to the opposition. 9

10 For the same reasons as stated in the ruling on the demurrer, the court finds that the allegations of fact in the 2 nd amended complaint are insufficient to establish an elder abuse cause of action against defendant Dr. Cheema and, therefore, the enhanced remedies for elder abuse cases are unavailable under the facts pled. In addition, plaintiffs not having established that they moved pursuant to Code of Civil Procedure, for leave to add a claim for punitive damages against health care provider defendant Cheema in plaintiffs pleadings and that such a motion was granted, the claims for punitive and treble damages are inappropriate in an action for medical malpractice and wrongful death resulting from alleged medical malpractice. Defendant Cheema s motion to strike the claims for punitive and treble damages is granted without leave to amend. Defendant Ang s Demurrer to 2 nd Amended Complaint. On April 7, 2015 the court sustained defendant Ang s demurrer to the elder abuse cause of action with 13 days leave to amend. On April 20, 2015 plaintiffs filed a 2 nd amended complaint against Dr. Ang and others asserting causes of action for elder abuse, wrongful death and medical malpractice. Defendant Ang demurs to the elder abuse cause of action on the ground that plaintiffs have failed to plead sufficient facts to establish defendant Ang subjected plaintiffs decedent to physical abuse, neglect, or financial abuse within the meaning of the Elder Abuse Act; and plaintiffs failed to allege sufficient facts to establish defendant Ang neglected plaintiffs decedent in a reckless, oppressive, fraudulent, or malicious way. Plaintiffs oppose the demurrer on the grounds that plaintiffs have adequately alleged facts to establish reckless neglect and withholding of care by defendant Ang and the determination of that issue should be left to the jury. Defendant Ang replied to the opposition. 10

11 The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section et seq. (hereinafter the Elder Abuse Act) are statutory, and reflect the Legislature's intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect. (See Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney).) (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) "Abuse of an elder or a dependent adult" means either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Welfare and Institutions Code, ) "Neglect" means either of the following: (1) The 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. (2) The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. (Welfare and Institutions Code, (a).) Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter. (2) Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment. (3) Failure to protect from health and safety hazards. (4) Failure to prevent malnutrition or dehydration. (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1) to (4), inclusive, for himself or herself as a result of poor cognitive 11

12 functioning, mental limitation, substance abuse, or chronic poor health. (Welfare and Institutions Code, (b).) In order to sufficiently state an elder abuse by neglect cause of action, the plaintiffs must meet the requirements of Section (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119.) To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [physical, neglectful, or financial elder abuse]. (Welf. & Inst.Code, ) (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119.) The sponsor of the elder abuse legislation took the position that the high standard of proof imposed by section clear and convincing evidence of liability, and a showing of recklessness, malice, oppression, or fraud adequately protects providers of care from liability for acts of simple negligence, or even gross negligence. The sponsor urged that existing limitations on damages and attorney fees should not apply in such extreme cases. (Delaney, supra, at p. 32, 82 Cal.Rptr.2d 610, 971 P.2d 986.) The purpose of the Elder Abuse Act is essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. (Delaney, supra, at p. 33, 82 Cal.Rptr.2d 610, 971 P.2d 986.) (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 123.) The Act excludes liability for acts of professional negligence. ( ; Delaney v. Baker (1999) 20 Cal.4th 23, 32, 82 Cal.Rptr.2d 610, 971 P.2d 986 (Delaney ).) [FN 7.] Hence, it does not apply to simple or gross negligence by health care providers. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 785, 11 Cal.Rptr.3d 222, 86 P.3d 290 (Covenant Care ).) FN7. Section provides: Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of 12

13 action. To obtain the remedies provided by the Act pursuant to 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, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur. (Ibid.) Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature. (Ibid.) Our Supreme Court teaches that neglect under the Act refers not to the substandard performance of medical services but, rather, 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. [Citation.] Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. [Citation.] (Covenant Care, supra, 32 Cal.4th at p. 783, 11 Cal.Rptr.3d 222, 86 P.3d 290.) (Emphasis added.) (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, ) the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims. (Covenant Care, at p. 790, 11 Cal.Rptr.3d 222, 86 P.3d 290.) (Emphasis added.) (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, ) The 2 nd amended complaint alleges: defendants Cheema, Ang, and Virk are and at all relevant times were physicians duly licensed to practice medicine in California and employees and agents of defendant The Pines at Placerville Healthcare Center (The Pines); upon plaintiffs decedent s readmission to the Pines, the doctor defendants ordered and the Pines 13

14 administered a potentially lethal drug, Coumadin; it is well understood both in the physician and skilled nursing community that it is extremely important to monitor a patient s INR levels to avoid thinning the blood too much and/or avoid dangerous drug interactions that can cause hemorrhaging, internal bleeding, acute kidney injury and death; the dosage and administration of Coumadin must be individualized for each patient according to the patient s INR response to the drug; from July 27 through August 20 the defendant doctors continued plaintiffs decedent s treatment plan, which included an order for defendant the Pines to administer the Coumadin and a blood sample every other day for INR testing; the results of the INR tests were to be monitored by the defendant doctors and the Pines every other day to ensure plaintiffs decedent s safety while on Coumadin; despite extreme risks of administering Coumadin, the defendant doctors completely and recklessly withheld any monitoring of the INR test results for the entire period of time; the Pines withheld care from plaintiffs decedent by failure to draw the blood for testing and/or failure to monitor the test results; the repeated withholding of care by the doctor defendants in not monitoring decedent s INR from July 27 through August 20 while continuing to order the administration of Coumadin amounted to a significant pattern of deliberate indifference; as a result of all the defendants reckless conduct, decedent s condition continued to deteriorate until he passed away on September 4, 2013; and the defendant doctors grossly neglected plaintiffs decedent by withholding care in the form of failure to monitor INR levels during the period of July 27 to August 20, while continuing to order administration of the potentially lethal drug Coumadin, which ultimately led to plaintiff s decedent suffering from subepithial petechiae, or bleeding into the skin, Coumadin toxicity, acute kidney injury, internal bleeding, and his death. (2 nd Amended Complaint, paragraphs 6, 14, 16-18, 21, 24, and 28.) 14

15 Plaintiff contends that the opinion in Sababin, supra, controls in that the circumstances that were found in the Sababin opinion to be sufficient reckless conduct to support an elder abuse cause of action are analogous to the situation described in the allegations of the 2 nd amended complaint. Sababin, supra, involved an action where plaintiffs decedent was being cared for in a facility, there was a care plan that required facility employees to monitor her skin daily for redness and breakdown, facility employees were required by the plan to report any skin problems to a physician for a treatment order, and the facility employees ignored the care plan entirely. (See Sababin, supra at pages ) The appellate court reversed the trial court s entry of summary adjudication on the elder abuse by neglect cause of action and found triable issues of material fact remained. The appellate court stated: Covina contends that under Covenant Care, a care facility cannot be held liable for dependent abuse unless there is a total absence of care. We disagree. If some care is provided, that will not necessarily absolve a care facility of dependent abuse liability. For example, if a care facility knows it must provide a certain type of care on a daily basis but provides that care sporadically, or is supposed to provide multiple types of care but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care. A significant pattern is one that involves repeated withholding of care and leads to the conclusion that the pattern was the result of choice or deliberate indifference. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.) In summary, the facts shown by the evidence submitted in Sababin, supra, was found to be sufficient to raise a triable issue of material fact wherein a jury could find a significant pattern of withholding care, which would form the basis for proving elder abuse by neglect. (Emphasis the courts.) 15

16 On the other hand, the appellate court in Carter, supra, cited Sababin, supra, at page 406 and found later in the opinion at page 410 that the allegations of conduct attributed to the defendant hospital, including failure to treat pressure ulcers, failure to administer prescribed antibiotics or stock the crash cart, false documentation, and purposefully inadequate testing for medications, were insufficient to state an elder abuse by neglect cause of action. The allegations of the 2 nd amended complaint that certain conduct amounts to withholding of care are merely contentions, deductions or conclusions of fact or law that the court need not take as true for the purposes of demurrer. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4 th 726, ) It is the specific facts of alleged misconduct by defendant Ang in the 2 nd amended complaint that must establish there was a withholding of medical care by failure to provide medical care, rather than negligent or even grossly negligent conduct by a treating physician undertaking medical care, in order to state a cause of action for elder abuse by neglect of a treating physician. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, ) The court also notes that while there are additional allegations relating to alleged conduct of managing agents, directors and/or officers of the defendants that plaintiffs contend amounts to widespread neglect, egregious neglect, and reckless neglect, including an allegation the officers, directors and/or managing agents directly authorized the reckless neglect by specifically knowing that plaintiff s decedent was being neglected by the Pine s personnel and allowing such neglect to continue to occur and failing to take any action to prevent the reckless conduct from further occurring, the allegations appear to be directed at defendant the Pines and not the individual defendant doctors, who as individuals have no managing agents, officers, and/or directors. (See 2 nd Amended Complaint, paragraphs ) 16

17 Moreover, merely alleging that Defendants, and each of them, engaged in certain conduct through managing agents, directors and/or officers is not a sufficiently specific allegation of fact establishing that the individual defendant doctors engaged in such conduct in the absence of allegations of specific facts as to how each of the individual defendant doctors, as individuals, were organized in the form of a corporate entity or another entity that has managing agents, directors and/or officers where plaintiffs admitted in the 2 nd amended complaint that the doctor defendants were individual employees or mere agents of defendant the Pines and not independent business organizations, or managing agents, directors and/or officers of the Pines. (See 2 nd Amended Complaint, paragraph 6.) The allegations lack sufficiently specific facts alleging that each of the individual defendant doctors engaged in the complained of conduct. In short, the facts constituting the neglect have not been pled with the mandated particularity, in accordance with the pleading rules governing statutory claims. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, ) Therefore, these allegations add nothing to establishing the defendant doctors, including defendant Ang, were liable for elder abuse by neglect in performing their duties as the decedent s treating physicians. Ignoring all deductions, contentions, and conclusions of reckless conduct, reckless neglect, and withholding of care, the specific facts alleged against defendant Dr. Ang are that he continued to provide care to plaintiffs decedent by approving the administration of Coumadin without reviewing the current INR test results and Dr. Ang failed to monitor plaintiffs decedent s INR for Coumadin therapy, which allegedly resulted in the eventual death of plaintiffs decedent. In other words, Dr. Ang is not alleged to have engaged in a significant pattern of withholding of care and, in fact, is alleged to have continued to provide care in a negligent manner by not keeping up with review of the INR test results. Inasmuch as 17

18 purposefully inadequate testing for medications can not constitute a pattern of withholding care resulting in liability for elder abuse, the same finding would appear to apply in the analogous circumstances alleged in this action. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In summary, taking the allegations of fact as true and ignoring contentions, deductions, and conclusions of law and/or fact for the purposes of this demurrer, the court finds that there are insufficient allegations of specific fact to establish that defendant Ang is guilty of reckless, oppressive, fraudulent, or malicious conduct. The allegations of fact that a doctor failed to review test results are analogous to the inadequate testing allegation that was found in Carter, supra, to have been insufficient to state neglect under the Elder Abuse Act. The specific facts alleged against defendant Ang do not establish something beyond simple or gross negligence by a treating physician undertaking medical care of the decedent. Plaintiff has had three opportunities to sufficiently allege the particular facts establishing an elder abuse cause of action against the doctor defendants and has failed. There does not appear to be a reasonable possibility that the pleading can be cured by amendment, the 2 nd amended complaint appears to be incapable of amendment to cure the defect, and plaintiff has not sufficiently demonstrated how the 2 nd amended complaint can be amended to cure the defect. (See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.) Defendant Ang s demurrer to the elder abuse cause of action is sustained without leave to amend. Defendant Ang s Motion to Strike Portions of 2 nd Amended Complaint. Defendant Ang moves to strike the prayer for punitive damages and treble damages on the following grounds: the action sounds in medical negligence and plaintiffs failed to obtain leave of the court under Code of Civil Procedure, to assert a claim for punitive damages in this medical professional negligence action; enhanced damages in elder abuse cases, 18

19 including punitive and treble damages, are not available in this case against defendant Ang, because plaintiffs have failed to sufficiently allege a cause of action for elder abuse; and plaintiffs have failed to adequately allege specific facts establishing defendant Ang acted with oppression, fraud, or malice.. Plaintiffs oppose the motion to strike on the ground that plaintiffs have adequately alleged facts to establish reckless neglect by Dr. Ang to support a claim for enhanced damages of punitive and treble damages for elder abuse and the issue should be decided by the trier of fact. Defendant Ang replied to the opposition. For the same reasons as stated in the ruling on the demurrer, the court finds that the allegations of fact in the 2 nd amended complaint are insufficient to establish an elder abuse cause of action against defendant Dr. Ang and, therefore, the enhanced remedies for elder abuse cases are unavailable under the facts pled. In addition, plaintiffs not having established that they moved pursuant to Code of Civil Procedure, for leave to add a claim for punitive damages against treating physician defendant Ang in plaintiffs pleadings and that such a motion was granted, the claims for punitive and treble damages are inappropriate in an action for medical malpractice and wrongful death resulting from alleged medical malpractice. Defendant Ang s motion to strike the claims for punitive and treble damages is granted without leave to amend. TENTATIVE RULING # 1: DEFENDANT CHEEMA S DEMURRER TO THE ELDER ABUSE CAUSE OF ACTION OF THE 2 ND AMENDED COMPLAINT IS SUSTAINED WITHOUT LEAVE TO AMEND. DEFENDANT CHEEMA S MOTION TO STRIKE PORTIONS OF THE 2 ND AMENDED COMPLAINT IS GRANTED WITHOUT LEAVE TO AMEND. DEFENDANT 19

20 ANG S DEMURRER TO THE ELDER ABUSE CAUSE OF ACTION OF THE 2 ND AMENDED COMPLAINT IS SUSTAINED WITHOUT LEAVE TO AMEND. DEFENDANT ANG S MOTION TO STRIKE PORTIONS OF THE 2 ND AMENDED COMPLAINT IS GRANTED WITHOUT LEAVE TO AMEND. NO HEARING ON THESE MATTERS WILL BE HELD (LEWIS V. SUPERIOR COURT (1999) 19 CAL.4 TH 1232, 1247.), UNLESS A NOTICE OF INTENT TO APPEAR AND REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE BY TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. MATTERS IN WHICH THE PARTIES TOTAL TIME ESTIMATE FOR ARGUMENT IS 15 MINUTES OR LESS WILL BE HEARD ON THE LAW AND MOTION CALENDAR AT 10:00 A.M. ON FRIDAY, DECEMBER 4, 2015 IN DEPARTMENT NINE UNLESS OTHERWISE NOTIFIED BY THE COURT. ALL OTHER LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING WITHIN TEN COURT DAYS OF THE ISSUANCE OF THE TENTATIVE RULING. (EL DORADO COUNTY SUPERIOR COURT LOCAL RULES, RULE , et seq.) 20