ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND [DOC. 29]
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 her death. On June 24, 2013, after receiving leave from the Court, Plaintiffs filed their Second Amended Complaint ("SAC"). Defendant now moves to dismiss Plaintiffs' first, fourth, fifth, and sixth causes of action 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. 32.) For the following reasons, the Court GRANTS WITHOUT LEAVE TO AMEND Defendant's motion to dismiss.
Plaintiffs are the parents of S.C., who is now deceased. (SAC ¶¶ 1-2.) Because Mr. Cooper is a Master Sergeant in the United States Marine Corps, he and his family are eligible to receive healthcare benefits through TRICARE, a healthcare program of the United States Department of Defense Military Health System. ( Id. ¶¶ 1, 10-11.)
Plaintiffs describe the TRICARE Management Activity ("TMA") as "a government entity that manages and administers the TRICARE program." (SAC ¶ 12.) They allege that "as part of its management responsibilities, the TMA selects and contracts with Managed Care Support contractors (hereinafter referred to as MCS contractors'), for the purpose of administering and providing healthcare services to TRICARE beneficiaries." ( Id. ¶ 13.) "[A]s the MCS contractor for the West region, TriWest was responsible for administering the TRICARE program." ( Id. ¶ 17.) According to Plaintiffs, Defendant's responsibilities also included "making the initial factual determination as to whether a TRICARE beneficiary's request for medical coverage could be approved or rejected under the applicable TRICARE guidelines, " and "accept[ing] and decid[ing] TRICARE beneficiaries' requests for Reconsideration in the West Region." ( Id. ¶¶ 18-19.)
On September 18, 2008, S.C. was born to Plaintiffs. ( SAC ¶ 25.) Plaintiffs allege that S.C. was a healthy female child at the time of birth. ( Id. )
However, on March 28, 2009, S.C. was diagnosed with severe global cerebral atrophy, a disease affecting the brain. (SAC ¶ 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, a TRICARE Network healthcare provider, concluded S.C.'s condition required "Skilled Nursing Supervision" after performing an "in home" evaluation. (SAC ¶ 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 S.C. totaling 40 hours per week. (SAC ¶ 37.) Plaintiffs used the 40 hours while at work, but allege that they were forced to care for S.C. during their "off work" hours. ( Id. ) Caring for S.C. during off-work hours required Plaintiffs to remain awake during the nights to make sure 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 became 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. (SAC ¶ 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, Dr. J. Serena also provided her notes concerning S.C.'s neurological condition to further support the reconsideration request. ( Id. ¶ 43.) 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. (SAC ¶ 49.) They were allegedly 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.) 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 from "great sleep deprivation." ( Id. )
On September 1, 2009, S.C. suffered her first documented aspiration pneumonia. (SAC ¶ 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. (SAC ¶ 52.) During the same year, these episodes recurred on March 31, June 1, and June 17, and each time S.C. 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. (SAC ¶ 54.) The request was denied on the same day. ( Id. ) Plaintiffs allege they did not know what they needed to prove in order to have their request approved "because TriWest never adequately told them what further evidence was required." ( Id. ) On August 13, 2010, however, Plaintiffs submitted a request to Defendant for redetermination of the July 19, 2010 denial, which they supported with a letter from Dr. Piccone and "a new plan of care to reflect S.C.'s progressing needs." ( 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. (SAC ¶ 57.) The request was denied two weeks later. ( Id. ¶ 58.) On January 6, 2011, Plaintiffs submitted another request for reconsideration of the denial of ...