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Yarick v. Pacificare of California

December 1, 2009


APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge. (Super. Ct. No. S-1500-CV-262664).

The opinion of the court was delivered by: Vartabedian, Acting P.J.



This is an appeal from judgment entered after the court sustained without leave to amend a demurrer to the fourth amended complaint filed by plaintiff and appellant Lisa Yarick, administrator of the estate of Joseph Yarick. The court ruled that claims against defendant and respondent PacifiCare of California (hereafter respondent), one of several defendants below, were "preempted in [their] entirety by the federal government." (Capitalization omitted.) We agree and will affirm the judgment.

Facts and Procedural History

According to the allegations of the fourth amended complaint, which we deem true for the present appeal from judgment after a sustained demurrer (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), Joseph Yarick received health care benefits under the federal Medicare Advantage program. (See generally 42 U.S.C § 1395w-21 et seq.) His health care benefits were provided through Secure Horizons, respondent's Medicare managed-care plan.

In early January of 2006, Mr. Yarick, who "was over 85 years of age," was admitted to defendant San Joaquin Community Hospital because he had fallen and broken his leg. Mr. Yarick had surgery to repair his broken leg and, three days later, was transferred to Rosewood Health Facility, operated by defendant American Baptist Homes of the West, for rehabilitation and custodial care.

Over the next three weeks, Mr. Yarick's condition deteriorated in various ways. Nevertheless, Rosewood Health Facililty and defendant Bakersfield Family Medical Group, despite the objection of Mr. Yarick's family, discharged Mr. Yarick. When the family arrived to receive Mr. Yarick upon discharge, they found him "slumped in a wheel chair and not responsive." The family called an ambulance, which transported Mr. Yarick to Mercy Hospital, operated by defendant Catholic Healthcare West.

Mr. Yarick was diagnosed with multiple conditions, including pneumonia and congestive heart failure. Over the next two weeks, according to the complaint, doctors of defendant Bakersfield Family Medical Group first counseled, and then pressured, appellant to terminate efforts at curing Mr. Yarick and to substitute, instead, "comfort" or end-of-life care. Although plaintiff continued to insist on curative care, as a result of the efforts of the various defendants, Mr. Yarick died on February 18, 2006.

The fourth amended complaint alleges that all of the foregoing events happened because of the financial pressures and incentives that arose from the care providers' contracts with respondent. The complaint alleges respondent's contracts with providers offer insufficient payment to permit the providers to make decisions and to provide care based on patients' reasonable medical needs, requiring the providers to substitute a standard of financial expediency. It alleges some of the contracts provide financial incentives for the refusal to provide reasonably necessary medical care. It alleges respondent has failed to implement and utilize necessary quality control mechanisms that would require providers to give good medical care despite the financial incentives not to do so. The complaint does not allege respondent made or participated in care determinations concerning Mr. Yarick specifically, nor does it allege appellant sought respondent's assistance to obtain care for Mr. Yarick.

Respondent demurred to the original complaint and to each subsequent complaint. As relevant to this appeal, on respondent's demurrer to the third amended complaint, the court granted the demurrer without leave to amend as to appellant's second cause of action, entitled "Willful Misconduct." The court determined the second cause of action failed to allege facts sufficient to state a cause of action and that appellant conceded there were no further facts she could allege. The court also sustained the demurrer as to the remaining causes of action, but permitted appellant to file a further amended complaint.

Appellant's fourth amended complaint set forth causes of action for negligence, elder abuse, and wrongful death. Respondent demurred to the fourth amended complaint on the basis that the causes of action were preempted by the 2003 Medicare Prescription Drug, Improvement and Modernization Act, 42 United States Code section 1395w-26(b)(3). Respondent also contended that none of the causes of action stated facts sufficient to constitute a cause of action and that all were uncertain.

After hearing, the court sustained the demurrer on all causes of action without leave to amend on the basis that the claims were preempted by federal law. The court entered judgment dismissing the ...

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