Opinion
B329574
10-15-2024
ARIE ALKALAY et al., Plaintiffs and Appellants, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.
Richards, Watson &Gershon and T. Peter Pierce for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Nathan J. Novak; David Weiss Law, David J. Weiss and A. Tracy Tjoeng for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC697810 Mark H. Epstein, Judge. Affirmed.
Richards, Watson &Gershon and T. Peter Pierce for Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza, Nathan J. Novak; David Weiss Law, David J. Weiss and A. Tracy Tjoeng for Defendants and Respondents.
WILEY, J.
While an inpatient at Resnik Neuropsychiatric Hospital at UCLA (the hospital), Dorin Bar-Cohen committed suicide. Her parents, Dr. Arie and Liora Alkalay, sued the hospital and various care providers. The trial court granted summary adjudication to the Regents of the University of California, the board that governs and operates the hospital, on the Alkalays' intentional infliction of emotional distress claim. The Alkalays appeal. We affirm.
I
Bar-Cohen was a 43-year-old woman suffering from major depressive disorder and body dysmorphic disorder. She had been hospitalized for psychiatric treatment in 1992, 2009, and 2015. In January 2017, her parents took her to the hospital after she made two suicide attempts within 24 hours. She remained under serial Welfare and Institution Code holds. Her parents visited her almost every day and kept in regular contact with her medical treatment team.
In March 2017, Bar-Cohen's doctor, Ariel Seroussi, prescribed Wellbutrin. After a visit on Saturday, March 18, Arie Alkalay emailed Dr. Seroussi expressing concern that Bar-Cohen seemed agitated. Seroussi wrote back that anxiety and insomnia were normal side effects of Wellbutrin and because the negative side effects could decrease while keeping the positive developments, he would reevaluate on Monday.
Seroussi ordered that Bar-Cohen was to be monitored every 15 minutes, a practice referred to as "rounding." Beginning around 11:00 p.m. on March 18, care partner Beauty Asemota was responsible for rounding on Bar-Cohen.
At 12:35 a.m. on March 19, Asemota urgently requested help from nurses Jomar Dela Pena and Geraldine Weber. The three entered Bar-Cohen's room and found her hanging by a pair of yoga pants secured over the top of the bathroom door. Dela Pena and Weber lowered Bar-Cohen to the ground, and Weber called a code blue. A medical team led by Dr. Matthew Stutz arrived and attempted to resuscitate Bar-Cohen. After 27 minutes, the team determined further efforts would be futile, and Stutz pronounced Bar-Cohen dead at 1:08 a.m. Another physician, Dr. Bryan Lopez, called Bar-Cohen's parents during the resuscitation efforts and after to tell them Bar-Cohen had died.
A resident at the hospital called the coroner. At the instruction of the coroner's office, the resident also called the university police. The university police arrived shortly before 2:00 a.m. and secured the scene. However, because staff mistakenly believed Bar-Cohen's parents were coming in to see her body, they had "cleaned" up the scene and body. The coroner took possession of Bar-Cohen's body and yoga pants.
Asemota represented to police and hospital staff that she had completed rounding appropriately. Her documentation showed the same. Asemota reported Bar-Cohen had been alive at her last check at 12:30 a.m.
Seroussi called the Alkalays about 9:00 a.m. to express his condolences. He stated that he believed Bar-Cohen had been monitored appropriately. Dr. Thomas Strouse, the medical director of the hospital, called later that morning as well. He also expressed his condolences and passed along information about how to request an autopsy. He offered to meet with the Alkalays and told them an investigation would be conducted. The Alkalays stated they were not ready to meet but would want to know the results of the investigation at a later date.
The Regents conducted a "root cause analysis" investigation into what happened. California law encourages this type of investigation by applying a privilege to the investigation and its results. (Evid. Code, § 1157, subd. (a) ["Neither the proceedings nor the records of organized committees of medical . . . staffs in hospitals . . . having the responsibility of evaluation and improvement of the quality of care rendered in the hospital . . . having the responsibility of evaluation and improvement of the quality of care, shall be subject to discovery"]; West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 853 [the privilege is the result of a legislative judgment that the goal of improving the quality of medical practice requires a degree of confidentiality].)
On April 7, Emily Peterson, a member of the hospital's quality management team, reviewed surveillance video that showed the door to Bar-Cohen's room. The footage had not been reviewed earlier because it had to be released by the police. Peterson noticed there was an inconsistency between the video and what Asemota recorded in her rounding log. Peterson reported this discrepancy to her supervisor, quality manager Colleen Davidson, on April 10 or 11.
Davidson spoke to Strouse and chief nursing officer Patricia Matos about setting up a time to view the video together. After twenty email communications about the same trying to line up schedules, the group set the meeting for the afternoon of April 26. The Regents' counsel asserted privilege over the contents of the conversations and emails about the video viewing, asserting they pertained to the "root cause analysis" investigation.
On April 20, the Alkalays emailed Strouse and said they were now "emotionally ready" to meet. At their request, Strouse scheduled the meeting for the morning. The meeting was set for April 26.
Strouse, Seroussi, Matos, Davidson, and Suzanne Ferris, Bar-Cohen's social worker, attended the April 26 meeting with the Alkalays. The hospital staff expressed their condolences for the Alkalays' loss. The Alkalays asked what the hospital's investigation had uncovered. Davidson told them the investigation was ongoing. Matos told the Alkalays that to the best of their knowledge, Asemota had performed the rounding as ordered. In notes he prepared after the meeting, Arie Alkalay noted "[n]o information was provided regarding the actual time when Dorin committed the suicide, what were the observational safety measures taken prior to her death, how frequently her room was checked ...."
That afternoon, Davidson, Matos, director of human resources Monica Rodriguez, and Rodriguez's assistant, watched the surveillance video with a member of the security team. The security team member explained that the surveillance camera was motion activated. Therefore, the fact that there was no footage for a period of time would mean there was no motion during that period rather than that footage was missing. With this information, the group reviewed the video and determined that Asemota had not conducted any rounding between 11:45 p.m. and 12:35 a.m.
On Thursday, April 27, Strouse learned the conclusion of the April 26 video review. That same day, the Alkalays wrote to Strouse asking for a follow-up meeting. Strouse responded he would be in touch. At his deposition, he stated he wanted to wait until Monday to tell the Alkalays about the new information so they would not be left with "a big question mark" over the weekend. He also spoke with the hospital's risk officer.
On Monday, May 1, Strouse wrote to the Alkalays and told them the investigation had uncovered "some important new information" and offered to meet the next day. The meeting ultimately was set for May 8.
On May 8, the Alkalays met with Strouse and Johanna Klohn, the hospital's health chief risk officer. Strouse told the Alkalays that review of security footage had revealed that Asemota had not done rounding as reflected in her logs and that Bar-Cohen had been unmonitored from 11:45 p.m. to 12:35 a.m. Strouse told the Alkalays he had not had this information at their previous meeting.
The Alkalays filed suit against the Regents, Seroussi, Strouse, and Asemota, alleging medical malpractice, dependent adult abuse, fraudulent concealment, and intentional infliction of emotional distress. The Regents moved for summary adjudication on the fraudulent concealment and intentional infliction of emotional distress claims. The parties eventually settled the first three claims. Thus, the only claim to which we address ourselves is that of intentional infliction of emotional distress.
The trial court found the Alkalays had not alleged conduct that was so egregious it fell outside the boundaries of what would be tolerated in society. It noted that the Alkalays based the claim on their theory that at least some of the members at the April 26 meeting knew there was evidence that might suggest Asemota had not rounded appropriately. Yet, the hospital told the Alkalays again that as far as the hospital knew she had. Then, a week and a half later, Strouse told the Alkalays that Bar-Cohen had been left unmonitored for 50 minutes around the time of her suicide. This, the Alkalays asserted, caused them to question everything the hospital told them and made them feel they would never know the truth about their daughter's death. The trial court rejected this theory, finding that the investigation had not concluded before the April 26 morning meeting. Instead, the evidence showed the Regents acted with reasonable diligence and voluntarily informed the Alkalays of the information once it was complete.
II
The Alkalays argue the trial court erred in finding the Regents' conduct was not outrageous as a matter of law. Their contentions fail.
To successfully demonstrate an intentional infliction of emotional distress, plaintiffs must show (1) extreme and outrageous conduct by the defendants with the intention of causing or with reckless disregard for the probability of causing emotional distress; (2) the plaintiffs suffered severe or extreme emotional distress; and (3) the defendants' outrageous conduct was the actual and proximate cause of plaintiffs' emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) To qualify as extreme and outrageous conduct, the defendants' actions must "exceed all bounds of that usually tolerated in a civilized community." (Id. at p. 1051.) Whether a specific defendant's conduct is sufficiently outrageous to meet this standard is a question of law the trial court evaluates in the first instance. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.) Only if reasonable minds could differ should the question be sent to the jury. (Ibid.) We review grants of summary adjudication independently. (Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)
As the trial court noted, the Alkalays' theory of the conduct that caused the intentional infliction of emotional distress is not clear in the complaint. At the hearing on the motion for summary adjudication, the Alkalays' counsel clarified that the objectionable conduct was the Regents' confirming the investigation so far showed Asemota had rounded properly at the April 26 meeting even though they had reason to suspect that was not true. Because Strouse reversed course and told the Alkalays the investigation revealed Asemota had not done so shortly after, the Alkalays claim they were left doubting everything the hospital told them.
The Alkalays spend much of their briefing arguing the evidence supports an inference that the April 26 meeting participants had reason to know at that meeting that rounding had not been done. We, like the trial court, accept that the meeting participants did have such knowledge for purposes of this analysis. Even with that assumption, given that the Regents disclosed the truth voluntarily a few days later after they concluded the investigation, the conduct did not constitute egregious behavior. It is illogical that the Regents' later candor would cause the Alkalays to doubt the veracity of the Regents' other statements.
The Alkalays point out that the Regents could have simply not said anything, instead of "l[ying] to the faces of grieving parents." Perhaps this would have been the better course, but it does not make the relevant behavior - waiting five days to confirm the suspected results of the investigation before voluntarily revealing it to the Alkalays - outrageous.
The Alkalays argue their status as people in a vulnerable state is important in this analysis. This factor indeed is relevant. It is one element in the totality of the circumstances courts take into consideration when evaluating the challenged conduct. (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, fn. 2 [conduct which otherwise might not be outrageous may become so where the actor knows the plaintiff is particularly susceptible to injuries through mental distress].) Even given the Alkalays' very vulnerable state, however, the Regents' conduct is not outrageous.
The Alkalays argue the Regents' conduct began with Bar-Cohen's death and lasted until May 8. They suggest the long duration of this conduct contributed to its outrageousness. The record shows, however, that the earliest notice of the key events was mid-April. The investigation was not complete until April 26, and Strouse communicated with the Alkalays on May 1, offering to meet on May 2. This duration was not unreasonable. As the trial court noted, the Alkalays' vulnerable state, if anything, militated in favor of ensuring the investigation was conducted thoroughly and accurately before sharing the potentially upsetting information that their daughter's death had been preventable.
DISPOSITION
We affirm the judgment. Costs awarded to respondents.
We concur: STRATTON, P. J. GRIMES, J.