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Katherine Lee Bates, As Special Administrator, Etc v. Presbyterian Intercommunity Hospital

March 12, 2012

KATHERINE LEE BATES, AS SPECIAL ADMINISTRATOR, ETC., PLAINTIFF AND APPELLANT,
v.
PRESBYTERIAN INTERCOMMUNITY HOSPITAL, INC., DEFENDANT AND RESPONDENT.



(Los Angeles County Super. Ct. No. VC 049976) APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge. Affirmed.

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

CERTIFIED FOR PUBLICATION

Appellant Katherine Lee Bates contends the trial court erred in awarding costs to a defendant sued under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq., the Elder Protection Act) and abused its discretion in concluding that an offer to settle pursuant to Code of Civil Procedure section 998 by that defendant -- respondent Presbyterian Intercommunity Hospital, Inc. -- was reasonable and made in good faith.*fn1 She further contends that neither fees paid to an undesignated expert nor expert witness costs incurred prior to the section 998 offer were recoverable. For the reasons discussed, we disagree. Accordingly, we affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint

In December 2007, appellant, acting as the administrator of the estate of Rinda Lou Bates, brought suit against respondent and several others for injuries suffered by Rinda prior to her death.*fn2 Appellant alleged that on October 1, 2006, after suffering a broken hip, Rinda was admitted to Presbyterian Intercommunity Hospital, a hospital owned and operated by respondent, where she underwent surgery and physical therapy.*fn3 On October 20, she was transferred to a skilled nursing facility owned by co-defendants Ensign Whittier West, LLC and the Ensign Group, Inc. (collectively, Ensign). On November 3, Rinda was discharged and returned home where her care was overseen by nurses employed by a home health nursing agency, Arcadia Home Health (Arcadia). According to the complaint, Arcadia was "a business activity" of respondent. During this period, Rinda's physician was co-defendant William Stimmler, who was employed by co-defendant Bright Medical Associates, Inc. (Bright Medical).

Shortly after Rinda was sent home at the beginning of November, she was found to have a serious pressure sore over her coccyx. The home nurses notified Dr. Stimmler, who attempted to obtain authorization to readmit Rinda to PIH through Bright Medical's utilization review department. The authorization was not secured until November 15. By that time the sore had grown and become infected. After Rinda's readmission to PIH on November 15, efforts were made to treat the condition by medical personnel, but proved futile. Rinda was returned home and died of sepsis in December.

In her complaint, appellant contended that under the appropriate duty of care standard, once the home nurses assessed the severity of the pressure sore in early November, they should have obtained immediate hospitalization for Rinda by calling 911 or another emergency service, rather than waiting for Dr. Stimmler to obtain authorization. Appellant asserted that respondent was responsible for the actions of the nurses supplied by Arcadia as respondent was "the licensee and operator of [Arcadia]"; respondent "owed a duty to [Rinda] to contract only with those health care providers after engaging in a reasonable due diligence effort to ensure that such were able to . . . provide care which met minimum legal standards for such care"; and respondent was obligated "to use due care in selecting providers of skilled nursing services." Appellant's complaint also contended that respondent failed to provide sufficient nursing staff to care for Rinda before and after the original surgery, which caused her to develop a pressure sore at the site, failed to recommend insertion of a feeding tube when Rinda was originally hospitalized, and failed to insert a feeding tube in a timely fashion when requested by the family.

B. Respondent's Offer to Compromise and Subsequent Dismissal

On February 9, 2010, respondent served an offer to compromise under section 998. Respondent offered to waive costs and to refrain from pursing a claim for malicious prosecution if appellant agreed to dismiss her claims against respondent with prejudice. Appellant did not accept the offer and it expired. However, on February 23, 2011, during jury selection, appellant voluntarily dismissed her claims against respondent with prejudice without having settled with respondent.

C. Cost Bill and Motion to Tax

In March 2011, respondent submitted a memorandum of costs, seeking $83,713.43 in costs, including $64,826.75 in expert witness fees.*fn4 The request for expert witness fees was based on the section 998 offer to compromise.*fn5

Appellant moved to strike the cost bill and/or tax costs, contending primarily that (1) a provision of the Elder Protection Act, specifically Welfare and Institutions Code section 15657, precludes recovery of costs by a successful defendant where the claims of the plaintiff bear any relation to elder abuse; and (2) respondent's February 2010 section 998 offer was unreasonable and/or not made in good faith. Appellant also requested several adjustments in the cost bill, including deletion of fees paid to experts prior to the February 2010 date of respondent's section 998 offer and exclusion of fees paid to an expert who was not designated as a witness.

To support the contention the offer was unreasonable or made in bad faith, appellant presented evidence that within days of Rinda's return home in November, nurses working for the Arcadia nursing agency observed the worsening of the pressure sore and sought authorization from Dr. Stimmler to transfer Rinda to PIH's wound care clinic for evaluation, but did not seek emergency hospitalization. The authorization was not received for approximately 10 days. During this period, the pressure sore grew larger and became infected.*fn6 Appellant also presented a declaration from trial counsel who stated that the decision to dismiss respondent in February 2011 was a tactical one, not based on the perceived merits of appellant's claims against respondent. Counsel explained that a month prior to trial, Dr. Stimmler and Bright Medical agreed to settle. Closer to trial, counsel was engaged in promising settlement negotiations with Ensign, but perceived that respondent would not settle and would ...


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