Case Number: NC059770??? Hearing Date: June 14, 2016??? Dept: S27

INTRODUCTION
Defendants George Fields, D.O., George Fields, D.O. Professional Corp., and Caremore Health Plan move for Summary Judgment on Plaintiffs? Complaint.

Plaintiffs Richard and Steve Thompson sue as Successors-in-Interest to decedent Mary Thompson and in their individual capacities.

The complaint has five Causes of Action arising from decedent?s residency in Regency Oaks Post-Acute Care Center:
1. Elder Abuse/Neglect;
2. Breach of Contract (dismissed on demurrer);
3. Statutory Violation (Health & Safety Code ?1430);
4. Loss of Consortium; and
5. Negligent Infliction of Emotional Distress.

Plaintiff was a member of the Caremore Health Plan. She was treated during her residency by Dr. Fields who is a Caremore employee. Caremore?s and the Fields Professional Corporation?s liability is vicarious through Dr. Fields ? they are not alleged to have engaged in affirmative misconduct.

These moving Defendants are only charged with the First, Fourth and Fifth causes of Action.

The Fourth Cause of Action for loss of consortium is a derivative claim by her husband Richard Thompson. If there is no substantive liability, then the claim or loss of consortium fails.

The claim for Negligent Infliction of Emotional Distress arises from Plaintiff?s contemporaneous perception of a pattern of neglect which injured decedent.

Defendants also move for alternatively for Summary Adjudication on issues of each Cause of Action and the claim for pre-death general damages of Mary and for attorney fees and for punitive damages. These remedies are only available if Elder Neglect is proven by clear and convincing evidence.

SUMMARY OF FACTS
Mary Thompson (decedent) became a resident of the Regency facility in August, 2013. She was age 77 and suffered from ?significant dementia? and diabetes.

Although Regency had represented they had a well-qualified staff and that they were ?experts in rehabilitation and compassionate care? Plaintiffs allege decedent ?was not even provided the minimum care? required by law and that care and services were ?routinely withheld.? Decedent was unable to care for herself and was dependent on defendant for nutrition, hydration and hygiene.

The complaint delineates several categories of deficiencies with Mary Thompson?s care and treatment, much of which is not attributable to Dr. Fields ? i.e. she was not properly nourished or hydrated and staff neglected decedent?s hygiene.

Decedent suffered from dementia and heard voices, would scream and cry. She was on many psychiatric medications.

Defendant allegedly failed to properly treat decubitis ulcers.
The Plaintiffs allege that the patient?s chart was incomplete, inaccurate and fraudulent.

Dr. Fields informed Plaintiffs on December 11, 2013 that an NG tube had been ?inserted incorrectly? and Ms. Thompson was being transferred to a hospital for placement of a permanent tube.

After Ms. Thompson was transferred to the hospital, she was admitted to the ICU. A feeding tube was inserted and her condition stabilized. She was then discharged to a different facility. Her condition improved ?significantly? and she lived another year and a half. She died of undiagnosed lung cancer on April 28, 2015.

PLAINTIFF?S OBJECTIONS TO EVIDENCE
Plaintiff?s Objection number 1 is overruled.

Plaintiff?s Objection number 2 is overruled. Specific material was not identified.

Plaintiff?s Objection number 3 is sustained. Moving party is correct that testimony of statutory violation usurps trier of fact?s job.

ELDER NEGLECT
Dr. Fields contends that he met the requisite standard of care in Mary Thompson?s medical care. If he did, then he was not culpable of neglecting her.

As a preliminary point, because Elder Neglect requires proof by clear and convincing evidence at trial, the Plaintiffs are held to that same standard in opposing this motion. (Basich v. Allstate Insurance Co. (2001) 87 Cal. App. 4th 1112)

Dr. Soorani notes that that, as decedent?s attending physician, Dr. Fields remains responsible for her medical treatment at the facility even if a nurse practitioner performs some functions.

He first notes that the standard of care was breached by failing to examine the patient until 71 days after admission. The examination was to occur within 72 hours (22 CCR 72303). It was below the standard of care to delegate the examination to a nurse practitioner. He further notes that by allowing the nurse to make a diagnosis of senile dementia, a finding that had not been previously made by a physician, Dr. Fields demonstrated ?a complete lack of regard? for Plaintiff and her needs.

This is not the only breach of the standard identified by Dr. Soorani, but it is illustrative of neglect.

He further testifies to the withholding of nutrition and hydration. Although an attending physician does not feed or hydrate patients, Steve Thompson brought to Dr. Fields? attention that his mother was not eating and a gastronomy tube was requested. Dr. Fields declined, stating that ?she has enough fat on her to sustain her for awhile.? On a second request four days later December 7, 2013, Dr. Fields relented and ordered an NG Tube to be emplaced. The tube was not inserted over the weekend. When Steve Thompson informed Dr. Fields, the doctor indicated he was aware of the fact. On Monday, December 9, 2013, a nurse attempted insertion but could not confirm placement by x-rays. Eventually Plaintiff was transferred to a hospital and a G Tube was emplaced.

By detailed factual recitation Dr. Soorani points out that from December 1 ? 10, 2013 decedent?s food intake was insufficient and needed to be addressed ?in a prompt manner? to ensure both physical and mental health. The failure to order a G Tube for eight days was ?conscious disregard? of the patient?s needs and below the standard of care. Ms. Thompson had Physician Orders for Life-Sustaining Treatment, and Dr. Fields knew this because he had signed the order. Failure to follow that order, which expressly included artificial nutrition, was also ?conscious disregard? of the patient?s needs.

Dr. Soorani opines that defendants, including Dr. Fields, ?failed to comply with the standard of care for elderly patients in nursing homes.? He strongly opines that Dr. Fields ?demonstrated a complete disregard for their duties under the law.?

The Court notes that Dr. Josephson based her opinions on the treatment rendered on occasions as reflected in medical records and did not consider the testimony of Steve Thompson.

Dr. Soorani?s declaration creates a triable issue on whether Mary Thompson was neglected and whether Dr. Fields breached the standard of care and whether that breach caused injury.

Dr. Soornai?s declaration also creates triable issue on the enhanced remedies and punitive damages as to Dr. Fields and his professional corporation, but not as to Caremore. A fact finder who credits Dr. Soorani?s testimony could find that Dr. Fields acted with malice: ?despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.? (CC ?3294)

There is no evidence in opposition which satisfies the requirements of ?3294(b) as to Caremore as Fields? employer:
?An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.?

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED)
The motion presents purely legal argument on Negligent Infliction of Emotional Distress (?NIED?). As there is no evidence negating an essential element, this is more akin to Judgment on the Pleadings.

Plaintiffs allege they have standing as ?bystanders? to recover for NIED.

Defendants cite Bird v. Saenz (2002) 28 Cal.4th 910. In that case the Plaintiffs? mother had a venous catheter placed. An artery was pierced causing internal bleeding. The Plaintiffs heard the call for a thoracic surgeon and saw the patient being moved to another room. They heard a doctor report that the patient ?may? have suffered a nicked artery. The Supreme Court rejected their claim for NIED:
?In summary, plaintiffs have not shown they were aware of the transection of Nita’s artery at the time it occurred. Nor have they shown they were contemporaneously aware of any error in the subsequent diagnosis and treatment of that injury in the moments they saw their mother rolled through the hall by medical personnel. In view of these undisputed facts, plaintiffs cannot show they were “present at the scene of the injury-producing event at the time it occur[ed] and [were] then aware that it [was] causing injury to the victim. Accordingly, the superior court properly granted defendants’ motion for summary judgment on plaintiffs’ claim for NIED.? (Id. at 922)

This Court overruled a demurrer to NIED, relying on Ochoa v. Superior Court (1985) 39 Cal.3d 159. The Court finds that Ochoa remains closer on point than Bird. Steve Thompson does not claim NIED from his observations of a medical procedure, but from his perception of Mary Thompson?s neglect.

In Ochoa, The complaint states that on February 19, 1981, Rudy was admitted to the custody of Santa Clara County juvenile hall. On March 23, 1981, he became ill with an apparent cold. On March 23 and 24, he went to the infirmary for care and treatment. Rudy’s parents visited him on March 24. They saw that he was ?extremely ill? and was holding his left side in an attempt to relieve severe pain. Rudy told his parents that he felt very sick and that he had been told that he had a ?bug.? Gloria Ochoa thereafter spoke with juvenile hall authorities and expressed concern that her son was not receiving the necessary treatment. The juvenile hall authorities attempted to reassure her about her son’s condition. Both parents experienced extreme mental and emotional distress upon seeing their son’s illness and pain and continued to be distressed thereafter.
Ochoa v. Superior Court (1985) 39 Cal. 3d 159, 162-163

The Supreme Court reversed a demurrer sustained without leave, holding ?We are satisfied that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted.? Id. at 170)

Steve Thompson was aware that his mother was not eating and required a G Tube. He personally requested Dr. Fields place orders for a feeding tube. He perceived a ?lack? of treatment over a period of eight days.

The Defendants have failed to meet their initial burden of persuasion that Plaintiff cannot establish a prima facie case for NIED.

RULINGS
On the issue of the standard of care and causation, the Court finds to a reasonable probability that the Defendants? initial burden was met through the declaration of Dr. Karen Josephson. She has reviewed decedent?s medical records and concludes that it contains no evidence of neglect, abandonment or abuse. She opines that Dr. Fields? treatment did not cause decedent?s injuries to a reasonable medical probability. The Court disagrees with Plaintiffs to the extent they contend the initial burden was not met.

The Court further finds that the declaration of Dr. Emil Soorani creates a triable issue on both breach and causation and that the testimony is sufficiently ?clear and convincing.?

As to Dr. Fields and his Professional Corporation, summary judgment and summary adjudication are denied. There are triable issues of elder neglect and whether Dr. Fields acted with malice. It follows that there are triable issues on punitive damages and attorney fees and pre?death pain and suffering, as well as loss of consortium.

As to Caremore, summary judgment is denied. Caremore may be vicariously liable for Dr. Fields? conduct.

Summary adjudication is granted in Caremore?s favor on the issue of punitive damages.

Plaintiff is to give notice of this ruling.