Opinion
B199966
9-4-2008
ISABELLE LEWIS et al., Plaintiffs and Appellants, v. GOOD SAMARITAN HOSPITAL, Defendant and Respondent.
Law Offices of Neville M. Tucker and Neville M. Tucker for Plaintiff and Appellant. Fonda & Fraser, Kristen J. Heim and Alexander Watson for Defendant and Respondent.
Not to be Published
Isabelle Lewis, Frankie Mae Adams, Marcella Bailey, Willie James Bowen, Matthew Bowen, Marsha L. Harper, Clevel Bowen, Beulah Bowen, Willie L. Bowen, Roosevelt Bowen, Alberta Randall, Christine Burns, Terry T. Bowen, and Carrie Mae Johnson (appellants), successors-in-interest of Mary Ann Bowen, deceased (Bowen), appeal from a judgment entered after the trial court granted Good Samaritan Hospitals (the hospital) motion for summary judgment. The trial courts grant of summary judgment in favor of the hospital disposed of appellants claim against the hospital for elder abuse and neglect of Bowen. We affirm.
CONTENTIONS
Appellants contend that the trial court erred in granting summary judgment in favor of the hospital because: (1) appellants claims were not barred by the statute of limitations, and (2) the hospital did not demonstrate that an element of the cause of action for elder abuse and neglect could not be established, or that there was a complete defense to the cause of action.
BACKGROUND
Bowen was a patient at the hospital from November 12, 2003, through December 8, 2003. During this time, she was over 90 years of age. She died on February 21, 2004.
1. The pleadings
On February 17, 2006, appellants filed a complaint against the hospital and two other defendants. Appellants filed a first amended complaint on August 2, 2006, and a second amended complaint on October 10, 2006. The second amended complaint, which was the operative complaint at the time that the hospital filed its summary judgment motion, alleged that:
The two other defendants, California Hospital Medical Center and Centinela Hospital Medical Center, are not parties to this appeal.
While the hospitals motion was pending, appellants filed a third amended complaint in response to the trial courts ruling on the demurrer of a different defendant. In its reply brief of its motion for summary judgment, the hospital represented that it had answered the third amended complaint, that the allegations in the third amended complaint against the hospital were the same as those in the second amended complaint, and that the third amended complaint did not affect the hospitals arguments in favor of summary judgment. Appellants have not contested this position.
"[D]efendant[] . . . intentionally failed with deliberate indifference to Mary Ann Bowens health and safety to prevent the formation of bedsores, to heal pressure sores which developed, to maintain the physical cleanliness and hygiene of the patient Mary Ann Bowen, to keep the patient hydrated, to reposition Mary Ann Bowen as needed to prevent the formation of bedsores, and to follow, implement and adhere to physicians orders, and to provide and/or obtain competent physicians orders. As a direct result of the breach of the defendant[] . . ., to competently perform [its] respective duties to Mary Ann Bowen according to the standard of care for other health care providers in Los Angeles County, California . . . Mary Ann Bowen suffered:
"a) Severe personal injury and severe emotional distress in a sum according to proof at trial.
"b) Medical expenses according to proof at trial."
2. The hospitals summary judgment motion
On December 1, 2006, the hospital moved for summary judgment. The hospital brought the motion on two grounds: first, that appellants action was barred by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1; and second, that appellants sole cause of action against the hospital for "elder neglect and abuse" was without merit because the hospital complied with the standard of care in the community.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
Statute of limitations argument
In support of its statute of limitations argument, the hospital attached the deposition testimony of appellant Isabelle Lewis (Lewis), Bowens daughter. Lewis testified that during the time that her mother was under the care of the hospital, Lewis discovered a "pimple" on her mothers hip, about the size of a dime. She further testified that she informed her two sisters of this discovery. Lewis recalled telling her sisters that the pimple was "not good," and that they should "check about it." Lewis and her sisters proceeded to take pictures of the pimple, because Lewis "didnt like it." In addition, Lewis testified that she felt that the nurses were not being sufficiently proactive in trying to get her mother to eat. Lewis stated that "knowing that she wasnt able to eat like she should, someone should have been there to see to it that she ate." When asked whether Lewis or either of her sisters expressed "the idea that the nurses were somehow responsible for that bedsore being there," Lewis responded, "yes." She confirmed that all three of them had expressed that idea. Lewis stated that she and her family members expressed these criticisms at the time the photographs of her mothers sore were taken, which was prior to Bowens release from the hospital on December 8, 2003.
The hospital argued that the Lewis testimony showed that appellants formed their suspicions of elder abuse prior to Bowens December 8, 2003, release from the hospital. However, appellants did not file their complaint until over two years later — on February 17, 2006. Thus, the hospital argued, the complaint was barred under the two-year statute of limitations found in section 335.1.
Section 335.1 provides that an action for "assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another" must be commenced within two years. In its motion for summary judgment, the hospital explained that appellants brought their complaint as successors-in-interest to Bowen. Thus, had Bowen lived, the claim for purported elder abuse would have belonged to her. Under section 366.1, if a person entitled to bring an action dies before the expiration of the applicable statute of limitations, and the cause of action survives, an action must be commenced before the later of: "(a) Six months after the persons death" or "(b) The limitations period that would have been applicable if the person had not died." Bowen died on February 21, 2004. Thus, the hospital argued, the limitations period expired, at the latest, on December 8, 2005 — two years after Bowen was discharged from the hospital.
Lack of merit to appellants claim
In support of its argument that appellants claim lacked merit, the hospital set forth the standard for elder abuse codified at Welfare and Institutions Code sections 15600 et seq. (Elder Abuse Act). The hospital also cited Delaney v. Baker (1999) 20 Cal.4th 23, in which the Supreme Court explained the standards which a plaintiff must meet in order to invoke the protections of the Elder Abuse Act. Under Delaney, the hospital argued, actions for elder abuse are limited to "those rare occasions when a health care provider engages in reckless, oppressive, fraudulent, or malicious conduct."
"`Abuse of an elder or a dependent adult means either of the following: [¶] (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (Welf. & Inst. Code, § 15610.07.)
The hospital then referenced the declaration of Mary Ransbury, R.N., B.S.N., P.H.N. (Ransbury). Ransbury attested that she was an exterstomal therapist, who had worked in the area of wound care since 1994. She stated that she had reviewed Bowens medical records from (1) Centinela Hospitals emergency room, dated November 4, 2003; (2) California Hospital Medical Center, from November 6, 2003, through November 12, 2003; (3) Good Samaritan Hospital from November 12, 2003, through December 8, 2003; and (4) California Hospital Medical Center, from December 8, 2003, to December 22, 2003. Ransbury also stated that she had read Lewiss deposition testimony. Ransbury opined that Bowens care and treatment while at the hospital complied with the standard of care in the community. Ransbury further declared that she was familiar with the term "elder abuse" as that term is defined in the medical community. She stated:
"It is my expert opinion that the nursing staff at Good Samaritan Hospital did not neglect or physically abuse Mrs. Bowen during her admission to that facility, from November 8, 2003, to December 12, 2003. The nursing staff was not reckless in its care and treatment of Mrs. Bowen; nor was it fraudulent or malicious in its care and treatment of her. No act or omission rendered in the care and treatment of Mrs. Bowen, by any member of the hospitals nursing staff could be characterized as `elder abuse."
3. Appellants opposition to the hospitals summary judgment motion
In their opposition to the hospitals motion for summary judgment, appellants conceded that Bowen was a patient at the hospital from November 12, 2003, through December 8, 2003. They also agreed that the complaint was filed on February 17, 2006. However, appellants cited section 352, which provides that "If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or insane, the time of the disability is not part of the time limited for the commencement of the action." They argued that, "The deceased was insane for [section] 352.1 purposed [sic] during all the material times until the date of her death. Therefore, the statute of limitations was tolled until the date of her death. [Appellants] could file suit at anytime within two years of her death." However, appellants offered no evidence regarding the mental state of the deceased, during her stay at the hospital or at any other time.
Appellants erroneously cited to section 352.1, which allows for the tolling of the statute of limitations on the grounds of imprisonment. Appellants have made the same error in their brief to this court. We assume that appellants intended to cite section 352, which is the tolling provision for persons under disabilities.
In addition, appellants took the position that the hospital failed to demonstrate that their claim had no merit. However, there was no factual argument contained in this section of appellants opposition papers, only a discussion of the standard that a defendant must meet to show that there is no merit to a cause of action and a conclusory statement that "The defendant has failed to demonstrate that [appellants action] cannot prevail."
Appellants also filed a separate statement of disputed and undisputed material facts. The statement repeatedly indicated: "Objection to Declaration of Mary Ransbury. Written objections will be filed prior to hearing." However, appellants did not dispute the fact that Lewis had informed her two sisters about the pimple they observed on their mother, and that the sisters attempted to capture a photograph of the sore. In addition, appellants did not dispute the fact that Lewis was unhappy with the way the hospital staff was caring for her mother, and that all three sisters expressed this sentiment during their mothers stay at the hospital.
4. The hospitals reply
In reply to appellants opposition, the hospital argued that it made a sufficient showing to require appellants to set forth a prima facie case, which appellants had not done. The hospital argued that appellants failure to offer expert testimony in opposition to the hospitals expert declaration mandated summary judgment. In response to appellants suggestion that Bowens mental state may have led to a tolling of the statute of limitations, the hospital responded that appellants offered no evidentiary support for their claim that the decedent was insane during the relevant time period. Further, the hospital pointed to evidence showing the contrary. In her declaration, Ransbury indicated that Bowen "was oriented to person and place." Further, the hospital referenced Lewiss deposition testimony, in which Lewis described her mothers mental state when she was at Centinela Hospital, just prior to her admission to the hospital for rehabilitation:
"Q. After your mothers stroke when she went to Centinela Hospital from November 4th to November 6th, can you describe her mental condition just in laymens terms? Did she know you?
"A. Yes.
"Q. And did she know your other brothers and sisters?
"A. Yes.
"Q. Her grandchildren?
"A. Yes.
"Q. Did she know why she was at the hospital?
"A. Yes.
"Q. Let me ask it this way. Was she aware of her surroundings?
"A. Yes.
"Q. She knew she was at the hospital?
"A. Yes.
"Q. And I believe you said she expressed the desire to go home; correct?
"A. Yes.
"Q. Based on your background and understanding, did your mother have a cognitive loss after her stroke while she was at Centinela, something in her mind that wasnt right? Anything that you noticed?
"A. No."
In addition, the hospital pointed out that Lewis admitted that her mother was in her "right frame of mind" while at the hospital:
"Q. Was there ever a time at Good Samaritan Hospital that you thought that your mothers mind was going, for lack of a better term?
"A. No, she was in her right frame of mind."
Finally, the hospital argued that, regardless of whether Bowen was insane at the time that her cause of action accrued, notice to appellants themselves was sufficient to commence the running of the statute of limitations.
5. The trial courts decision
On February 13, 2007, two days before the hearing on the hospitals summary judgment motion, appellants filed their evidentiary objections to Ransburys declaration. At the hearing on the motion, the court noted that appellants evidentiary objections were untimely and did not comply with the California Rules of Court. However, "not making an issue out of that," the court overruled the objections. Appellants do not challenge these evidentiary rulings.
The courts tentative ruling was to grant the hospitals summary judgment motion. The court stated that the hospital had raised sufficient evidence to shift the burden to appellants to set forth a prima facie case. The court further pointed out that appellants had not submitted an expert declaration and that "the separate statement of the [appellants] contains no evidence, at all." The court concluded that "there is no evidence to raise a triable issue."
After a brief argument, the court ruled that "The tentative will become the final." Judgment was entered on April 5, 2007. Notice of entry of judgment was served on April 11, 2007. Appellants filed a timely notice of appeal on June 11, 2007.
DISCUSSION
I. Standard of review
We review a grant of summary judgment de novo, and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) The trial courts stated reasons for granting summary judgment are not binding on the reviewing court. (Kids Universe v. In2labs (2002) 95 Cal.App.4th 870, 878.)
II. Appellants claim is barred by the statute of limitations
Section 335.1 imposes a two-year statute of limitations on appellants claim. A statute of limitations begins to run when the injured partys cause of action accrues. A cause of action generally accrues on the date of injury. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) However, in the event that the injured party is not immediately aware of her injury or its cause, the "discovery rule" applies. Under the discovery rule, "the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. [Citation.]" (Ibid., fn. omitted.) "A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. [Citation.]" (Ibid.)
The hospital presented evidence that appellants were aware of Bowens injury during the time that Bowen was in the hospital. They attached to their summary judgment motion the testimony of Lewis, who claimed that she noticed a small pimple about the size of a dime on her mothers hip during the time that appellant was at the hospital; that she told her sisters about the pimple; and that they all agreed it was "not good." Appellants did not dispute this evidence, or provide any contrary evidence. In addition, the hospital provided evidence that "The criticisms that Mrs. Bowen should not have had `these sores were expressed when the pictures were taken in the hospital and afterward." Appellants indicated that this evidence was "undisputed."
In addition, the hospital presented evidence showing that, during the time that Bowen was in the hospital, appellants believed that Bowens injuries were caused by the hospital. Lewis testified that, during the time that Bowen was in the hospital, Lewis understood that the nurses might be responsible for the bedsore on her mother. She also understood that "if [her mother] was being cared for properly, she would not have bedsores." Appellants did not dispute this evidence. Similar statements taken from Lewiss testimony showed that, during the time her mother was at the hospital, Lewis was concerned that the nurses were not properly feeding and caring for her mother. These statements were also uncontradicted by appellants.
This evidence is sufficient to show that appellants were aware of Bowens injury, and its negligent cause, during the time that Bowen was in the hospital. Appellants alleged that Bowen was in the hospital from November 12, 2003, through December 8, 2003. Thus, the claims against the hospital alleged in this action accrued, at the latest, on December 8, 2003. Under section 335.1, those claims were barred after December 8, 2005. It is undisputed that appellants filed their initial complaint in this action on February 17, 2006, over two years after the claims accrued. Section 335.1, therefore, provides the hospital with a "complete defense" to appellants cause of action. (Romano v. Rockwell Internat. (1996) 14 Cal.4th 479, 487.)
Bowen could reasonably have discovered the injury, as well as appellants beliefs as to the cause of that injury, through investigation. Therefore, had she not died, Bowens cause of action against the hospital would have expired on the same date. (§ 366.1, subd. (b).)
While appellants have cited section 352, and have made conclusory allegations that Bowen was insane during the relevant time period, such conclusory allegations are insufficient to defeat summary judgment. (Nelson v. United Techs. (1999) 74 Cal.App.4th 597, 614 ["`"[I]f the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation," summary judgment may be appropriate"].) Appellants presented no evidence, expert or otherwise, that Bowen was not in her right mind. In fact, Lewis admitted in her deposition testimony that Bowen was "in her right frame of mind" during her stay at the hospital. Thus, appellants have not created a triable issue of fact as to whether the statute of limitations was tolled under section 352. We conclude that appellants claim is barred as a matter of law under section 335.1.
The case cited by appellants on this point, Benun v. Superior Court (2004) 123 Cal.App.4th 113, does not support appellants position. In that case, the plaintiff alleged that the defendant nursing home had committed elder abuse against plaintiffs mother, who was deceased. During the time that the decedent was in the defendant facility, she suffered from blindness, dementia, and Alzheimers disease. (Id. at p. 116.) Defendant was granted partial judgment on the pleadings on the ground that the plaintiffs action was barred by the statute of limitations found in section 340.5. (Id. at p. 117.) The Court of Appeal reversed, finding that the applicable statute of limitations for elder abuse is section 335.1, and noting that "Actions on behalf of elders who are insane under the section 352 definition would be promoted by the longer section 335.1 period and the tolling effect of section 352." (Id. at p. 127.) The case did not present a situation where, as here, the record was completely devoid of evidence to support the applicability of the section 352 tolling provision.
Because we have determined that appellants claim is barred by the statute of limitations, we need not address appellants argument that the hospital failed to demonstrate that appellants claim was without merit.
DISPOSITION
The judgment is affirmed. Appellants are ordered to pay the costs of appeal.
We concur:
BOREN, P.J.
ASHMANN-GERST, J.