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Elaine Carter, Individually and As Personal Representative, Etc., Et v. Prime Healthcare Paradise Valley LLC

August 12, 2011

ELAINE CARTER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
PRIME HEALTHCARE PARADISE VALLEY LLC, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 37-2009-00100918-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

Plaintiffs Elaine Carter,*fn1 Newgene Grant and Roosevelt Grant, Jr., appeal a judgment entered after the trial court sustained a demurrer without leave to amend. Plaintiffs sued defendant Prime Healthcare Paradise Valley LLC, doing business as Paradise Valley Hospital (the Hospital) and Paradise Valley Health Care Center, Inc. (the Center)*fn2 for the death of their father, Roosevelt Grant (Grant), on theories of elder abuse, willful misconduct and wrongful death. On the Hospital's demurrer, the trial court ruled that plaintiffs had not alleged conduct that qualified as elder abuse (as distinguished from negligence) and that the willful misconduct and wrongful death claims were untimely. We affirm.

I STATEMENT OF THE CASE

A. Background Facts

Because this case comes to us after entry of a judgment based on the sustaining of a demurrer, we accept as true the material allegations of plaintiffs' pleadings. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 7.) According to plaintiffs' first amended complaint, the following events led to the death of Roosevelt Grant:

Approximately two months after undergoing hip surgery, Grant was admitted to the Hospital for chest pain on April 21, 2008. Grant was 87 years old and had no pressure ulcers at that time.

Two days later, Grant was transferred to the Center, a skilled nursing facility, for short-term rehabilitation therapy. He was generally in good health at the time. The Center advised plaintiffs that Grant would likely remain there for approximately 100 days.

While at the Center, Grant was "continually neglected." For example, when Grant was bathed in bed, "he was routinely not dried[;] instead he was placed in front of an open window with a fan blowing on him to 'air-dry' . . . even during cold days." This practice of leaving Grant wet and cold for extended periods of time continued despite protests by Grant's daughter and ultimately caused Grant to develop pneumonia. Additionally, when Grant was showered in a wheel chair, he was often left in unfamiliar surroundings, alone, wet and helpless. The Center also did not provide Grant sufficient nutrition or hydration. Due to this neglect, Grant weakened and developed pneumonia, pressure ulcers on his lower back and buttocks and sepsis.

On May 6, 2008, Grant was admitted to the Hospital for eight days for treatment of the pneumonia, sepsis and pressure ulcers. While at the Hospital, he developed additional pressure ulcers on his heels. The records regarding these pressure ulcers "were fraudulently and falsely maintained."

After discharge from the Hospital, Grant returned to the Center for approximately three months. At the Center, Grant continued to be mistreated; for example, he was isolated, not repositioned and improperly bathed.

On August 18, 2008, Grant was admitted to the Hospital for a third and final time. The Hospital did not give Grant life-saving medications, including antibiotics, despite records stating the contrary.*fn3 The Hospital also failed properly to stock a "crash cart" for use in emergency situations, again despite records stating the contrary. As a result of the Hospital's "abuse, neglect and fraud," Grant died when those treating him could not locate a common size endotracheal tube and intubate him in time to save his life.

B. Trial Court Proceedings

Plaintiffs initiated this action against the Hospital and the Center on October 27, 2009. In their first amended complaint, plaintiffs alleged three separately labeled causes of action against the Hospital: (1) violations of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (the Elder Abuse Act or the Act); (2) willful misconduct; and (3) wrongful death.*fn4 The gist of these claims was that the Hospital caused Grant's death by "recklessly," "willfully," and "with deliberate indifference and conscious disregard for the health, safety and well-being of [Grant]," failing to treat his pressure ulcers, administer his prescribed medications and properly stock a crash cart. Plaintiffs sought compensatory and punitive damages as well as costs, including attorney fees.

The Hospital demurred to the first amended complaint on the grounds that the elder abuse claim did not state facts sufficient to constitute a cause of action and the willful misconduct and wrongful death claims were time-barred. Over plaintiffs' opposition, the trial court sustained the demurrers without leave to amend. The court ruled: (1) the allegations of the elder abuse claim did not constitute "neglect" within the meaning of the Elder Abuse Act; (2) there is no separate cause of action for willful misconduct; and (3) the willful misconduct and wrongful death claims arose from the Hospital's provision of professional services and were barred by the statute of limitations. The court entered ...


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