Case Name: ??? Candida Asuncion, et al. v. Dae-Wook Kang, M.D., et al.
Case No.:??????? 16-CV-290060
Currently before the Court are defendant Dae-Wook Kang, M.D.?s (?Kang?) demurrer to and motion to strike portions of the first amended complaint (?FAC?) of plaintiffs Candida Asuncion (?Asuncion?), Minnette C. Sablan (?Sablan?), Millicent C. De La Cruz (?De La Cruz?), and Mainard Cardillo (?Cardillo?) (collectively, ?Plaintiffs?).
- Factual and Procedural Background
This is an action arising from the death of Mike Pascubillo Cardillo (the ?Decedent?). As relevant here, Plaintiffs allege the following in the operative FAC: The Decedent, the husband of Asuncion and the father of Sablan, De La Cruz, and Cardillo, was a patient at skilled nursing facility owned by Larry A. Blitz, Inc. dba Mission Skilled Nursing & Sub-Acute Center (?Mission?). (FAC, ?? 2-4.) Kang, Decedent?s doctor at the center, issued an order terminating Decedent?s insulin medication despite the fact that he was diabetic. (FAC, ? 46.) Sometime after this order was given, a family friend, Gil Colorge, visited Decedent and discovered that he was shaking and sweating profusely. (FAC, ? 18.) Mission?s employees refused to summon 911 and instead tried to reach Kang for hours without success. (FAC, ? 18.) Mr. Colorge eventually called 911. (FAC, ? 18.) Shortly thereafter, paramedics arrived, administered insulin, and took him to the hospital, where he entered a coma. (FAC, ? 19.) Decedent subsequently passed away due to ?complications of [a] cerebrovascular accident? caused by ?Diabetes Mellitus.? (FAC, ? 21.) Plaintiffs assert seven causes of action against Kang and Mission for (1) wrongful death ? medical malpractice, (2) elder abuse, (3) wrongful death ? elder abuse, (4) negligence per se, (5) fraud and concealment, (6) violation of Business and Professions Code section 17200, and (7) violation of Health and Safety Code section 1430.
On April 21, 2016, Kang filed the instant demurrer and motion to strike.[1] Plaintiffs filed their opposition on May 13, 2016. On May 19, 2016, Kang filed his reply.
- Demurrer to the FAC
??????????? Kang demurs to the second and third causes of action for elder abuse and wrongful death based on elder abuse on the ground of failure to state sufficient facts to constitute a cause of action. (See Code Civ. Proc., ? 430.10, subd. (e).) He contends that these causes of action fail because the FAC does not allege that he committed more than simple or gross negligence in issuing the order terminating Decedent?s insulin medication.
?To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider?s care or custody of the elder?. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services? necessary to meet the elder or dependent adult?s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury must be pleaded with particularity, in accordance with the pleading rules governing statutory claims. ? (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405-407, internal citations omitted.)
Here, the FAC merely alleges that Kang failed to provide Decedent with adequate medical care because he issued an order terminating Decedent?s insulin medication and, therefore, Kang was ?guilty of malice, fraud, recklessness, and oppression?.? (FAC, ?? 46, 64.) These allegations are insufficient on several grounds. First, the FAC fails to allege with particularity the timing of the order at issue or any other facts demonstrating the requisite causal link between Kang?s order and Decedent?s injury. (Carter, supra, 198 Cal.App.4th at p. 407.) Second, a practitioner?s failure to provide necessary medication is considered no more than professional negligence absent specific factual allegations indicating at least recklessness (i.e., a conscious or deliberate disregard of a high probability of injury). (Carter, supra, 198 Cal.App.4th at p. 408.) Here, the FAC fails to allege any facts demonstrating that Kang issued his order terminating the insulin medication with a conscious or deliberate disregard of a high probability of injury. As such, the FAC does not state facts indicating that Kang?s order constituted neglect within the meaning of the Elder Abuse Act.
In light of the foregoing, Plaintiffs fail to allege sufficient facts to constitute a cause of action for elder abuse. Accordingly, the demurrer to the second and third causes of action for elder abuse and wrongful death based on elder abuse is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.
III. Motion to Strike Portions of the FAC
??????????? Defendant moves to strike the request for punitive damages, treble damages, and attorney?s fees in the FAC on the basis that Plaintiffs fail to allege a cause of action for elder abuse and have not obtained a court order permitting a claim for punitive damages. (See Code Civ. Proc., ? 425.13 [stating that in an action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in the absence of a court order].) In opposition, Plaintiffs acknowledge that their requests for punitive damages, treble damages, and attorney?s fees are premised on their causes of action for elder abuse. (Opposition, p. 5:11-18, 25:28.) As previously indicated, the FAC fails to state sufficient facts to constitute a cause of action for elder abuse. Therefore, the FAC likewise fails to state sufficient facts to support Plaintiffs? requests for punitive damages, treble damages, and attorney?s fees. Accordingly, Kang?s motion to strike these requests is GRANTED WITH 10 DAYS? LEAVE TO AMEND.
[1]? The Court notes that Kang failed to comply with Code of Civil Procedure section 430.41, which provides that the moving party must meet and confer prior to filing a demurrer and provide a declaration regarding the parties? meet and confer efforts. Here, Kang failed to provide the required meet and confer declaration, and there is no indication that he attempted to meet and confer as required by the statute. In the interest of addressing the issues raised by the demurrer and moving the case forward, the Court will overlook?in this instance only?Kang?s failure to meet and confer. Kang is admonished to comply with this statute going forward.