ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS WITH LEAVE TO AMEND [DOC. 22]
M. JAMES LORENZ, District Judge.
This action arises from Plaintiffs Carolyn Cooper and Jason Cooper's allegations that the failure of Defendant TriWest Healthcare Alliance Corp. ("TriWest") to provide 24-hour nursing care for their daughter, S.C., resulted in their child's death. Defendant now moves to dismiss the claims in the First Amended Complaint ("FAC") under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose.
The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 26.) For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss.
Mr. Cooper is a Master Sergeant in the United States Marine Corps, and Mrs. Cooper was employed as a Financial Controller for WJ Commercial Enterprises. (FAC ¶¶ 1-2.) They are S.C.'s parents. ( Id. ¶¶ 1-2, 10.) Plaintiffs allege that TriWest was a contractor covering the West region and it was "responsible for administering the TRICARE program for more than 2.9 million beneficiaries in the 21-state TRICARE West Region." ( Id. ¶ 17.) "TRICARE, formerly known as the Civilian Health and Medical Program of the Uniformed Services ("CHAMPUS"), is a healthcare program of the United States Department of Defense Military Health System, " and "[t]he TRICARE Management Activity ("TMA") is a government entity that manages and administers the TRICARE program." ( Id. ¶¶ 11-12.)
In September 2008, S.C. was born to Plaintiffs. ( Id. ¶ 25.) At the time of birth, Plaintiffs allege that S.C. was a healthy female child. ( Id. )
However, on March 28, 2009, S.C. was diagnosed with severe global cerebral atrophy, a disease affecting the brain. (FAC ¶ 26.) The cause of the disease was unknown. ( Id. ) Symptoms included seizures, hypertonic muscle tone, microcephaly, the inability to stand without multiple points of support and restraint, and the inability to hold her head up. ( Id. ¶ 27.) S.C.'s medical condition allegedly required a complex medication regimen with a need for skilled supervision to prevent possible interaction and side effects. ( Id. ¶ 28.)
On June 19, 2009, Maxim Home Health Care performed an "in home" evaluation of S.C. and concluded that her condition required "Skilled Nursing Supervision." (FAC ¶ 31.) Maxim Home Health Care then requested Skilled Nursing services from Defendant. ( Id. ¶ 32.) On June 29, 2009, Defendant denied the request. ( Id. ¶ 34.)
Following the denial, Plaintiffs turned to Medi-Cal, which approved Skilled Nursing supervision for 40 hours per week. (FAC ¶ 37.) Plaintiffs used the 40 hours during their work week but allege that they were forced to care for S.C. during their "off work" hours. ( Id. ) Caring for S.C. during that time period required Plaintiffs to remain awake during the nights to make sure that she did not aspirate and choke. ( Id. ¶ 39.) However, "there were many nights that Plaintiffs were unable to stay awake and had to make the decision to sleep hoping that S.C. did not choke while they were sleeping." ( Id. ) Plaintiffs also took turns staying up as much as possible to make sure that S.C. was properly monitored. ( Id. ¶ 40.) During the same time, Mrs. Cooper was also pregnant with her second child. ( Id. ¶ 38.)
On July 28, 2009, Plaintiffs requested that Defendant reconsider its June 29, 2009 decision to deny Skilled Nursing Services. (FAC ¶ 41.) Dr. Kris Baik of the Naval Medical Center in Camp Pendleton supported Plaintiffs' request for reconsideration by submitting a formal request to Defendant for nursing services "based on her belief that S.C. qualified to receive the requested benefit." ( Id. ) Plaintiffs allege that around that time, S.C.'s condition had deteriorated further with seizures that were new and poorly controlled. ( Id. ) Records from the Naval Medical Center Balboa were also added to the reconsideration request "showing S.C.'s first confirmed seizure[, ] which lasted about an hour." ( Id. ¶ 42) Moreover, another doctor, Dr. J. Serena, also provided her notes concerning S.C.'s neurological condition to further support the reconsideration request. ( Id. ¶ 20.) Those notes addressed "increasing issues with spasticity and irritability and the need for the administration of medications such as diazepam." ( Id. ¶ 43.) Maxim Home Health Care also prepared and updated their evaluation of S.C.'s condition to support the reconsideration request "based on [S.C.'s] evolving medical condition and reached the same conclusion it had reached before[, ] that skilled nursing supervision was required." ( Id. ) On August 26, 2009, Defendant denied the reconsideration request. ( Id. ¶ 45.)
Thereafter, Plaintiffs concentrated their efforts on keeping S.C. healthy. (FAC ¶ 49.) They were told that "if S.C.'s needs were properly addressed by proper skilled nursing supervision, she would likely live at least 10 to 15 years and could live much longer." ( Id. ¶ 49.) Plaintiffs do not allege the source of that information. According to Plaintiffs, aspiration pneumonias were the greatest threat to S.C.'s health. ( Id. ¶ 50.) S.C. also had many daily needs that Plaintiffs were allegedly unable to provide themselves. ( Id. ) As a result, Plaintiffs allege that they suffered sleep deprivation. ( Id. )
On September 1, 2009, S.C. suffered her first documented aspiration pneumonia. (FAC ¶ 51.) She was treated with antibiotics at Camp Pendleton Naval Hospital and recovered. ( Id. ) But Plaintiffs allege that they were "specifically told that it was greatly important that they watch S.C.'s condition during the nights so that if any vomiting occurs, it [could] be cleaned up to prevent any possible pneumonia." ( Id. )
On February 8, 2010, S.C. experienced a second aspiration during the night which led to another pneumonia. (FAC ¶ 52.) These episodes recurred on March 31, June 1, and June 17 in 2010. ( Id. ) Each time she was treated at Camp Pendleton. ( Id. ) Plaintiffs allege that, with each passing episode, S.C. became weaker, more prone to pneumonia, and more resistant to antibiotics. ( Id. ¶ 53.)
On July 19, 2010, Dr. Matthew Piccone of Camp Pendleton Pediatrics submitted an electronic request for services to Defendant. (FAC ¶ 54.) The request was denied on the same day. ( Id. ) Thereafter, Plaintiffs submitted a request to Defendant for redetermination of the denial of Dr. Piccone's request. ( Id. ¶ 56.) Once again, the request was denied. ( Id. )
On November 12, 2010, Dr. Mower, a neurologist, submitted a new request to Defendant, which included more "in depth" analysis of S.C.'s condition and a letter from Dr. Piccone. (FAC ¶ 57.) The request was denied. ( Id. ¶ 59) On January 6, 2011, Plaintiffs submitted another request for reconsideration of Defendant's denial of Dr. Mower's request. ( Id. ¶ 59.) Again, the request was denied. ( Id. )
Finally, Plaintiffs submitted a final appeal to the TMA in Colorado. (FAC ¶ 60.) That appeal remained undecided until it became moot by S.C.'s death. ( Id. )
S.C. suffered additional episodes of aspiration pneumonia in 2011 on March 22 and July 16. (FAC ¶ 62.) On July 28, 2011, she suffered an aspiration burn ...