Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC841785. Linda B. Quinn, Judge.
NARES, J.
This elder abuse case arises out of injuries Robert Chandler received while being transported in a wheelchair van from Sharp Memorial Hospital (Sharp) by San Diego Medical Services Enterprises, LLC (SDMSE). It had originally been determined by personnel at Sharp that because of his age and medical condition, which included dementia, he would need to be transported on a gurney in an ambulance. However, when SDMSE personnel arrived to transport Chandler, SDMSE convinced Sharp personnel to downgrade his transport to a wheelchair van. While in transit, the driver of the wheelchair van braked suddenly, Chandler fell out of the wheelchair and suffered severe injuries.
Plaintiff Nancy Eichenberg, sister and successor in interest to Chandler, sued SDMSE, stating three causes of action, one of which—a claim of elder abuse under Welfare and Institutions Code section 15600 et seq.—is at issue in this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Eichenberg initially also sued the City of San Diego and Rural/Metro of San Diego, the principals of SDMSE, but dismissed them upon stipulation of the parties.
SDMSE brought a motion for summary adjudication, arguing that, as a matter of law, its actions did not rise to the level of recklessness, an element of Eichenberg's elder abuse claim. The court granted SDMSE's motion (1) sustaining SDMSE's evidentiary objection to statements in Eichenberg's expert Eleanor Kenney, Ph.D., R.N.'s declaration (Kenney Declaration) that SDMSE was reckless, and (2) finding there was no material issue of fact as to whether SDMSE's actions were reckless.
Following the court's ruling, Eichenberg requested dismissal of the sole remaining cause of action for negligence against SDMSE. The Court entered dismissal and entered its judgment after order granting motion for summary adjudication in favor of SDMSE.
On appeal, Eichenberg contends that the court erred by (1) sustaining SDMSE's evidentiary objection to the Kenney Declaration; (2) finding no triable issue of material fact with respect to recklessness; (3) failing to consider SDMSE's alleged statutory violations in determining the recklessness issue; and (4) failing to sustain her evidentiary objections to SDMSE's evidence submitted in support of its motion for summary adjudication.
We conclude that (1) the court properly sustained SDMSE's evidentiary objection to the Kenney Declaration, (2) the conduct of SDMSE's personnel did not create a triable issue of fact as to recklessness, (3) SDMSE's alleged statutory violations failed to raise a triable issue of material fact as to SDMSE's recklessness, and (4) the court did not err in overruling Eichenberg's evidentiary objections to SDMSE's evidence. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
Eichenberg is the sister and successor in interest to decedent Chandler. On July 23, 2004, Chandler, then an 80-year-old resident at a skilled nursing facility, was admitted to Sharp for treatment related to pneumonia. Because Chandler had a history of mental retardation, Eichenberg held power of attorney for his healthcare decisions.
Chandler was initially scheduled to return from Sharp to his skilled nursing facility on a gurney via basic life support ambulance. The discharge planning nurse, Theresa Sanford, determined that Chandler was a high risk patient for discharge planning due to his being a resident at a skilled nursing facility, his age, his dementia, and the fact that he had been readmitted to the hospital within a 30-day period. Because of Chandler's dementia and confusion, and his inability to tolerate sitting up for the length of the ride to the facility, Sanford determined that Chandler met the Medicare medical necessity guidelines to be transported by gurney transport. Sanford would not consider Chandler as eligible for wheelchair van transport due to his mental condition. Chandler was also ineligible for wheelchair van transport because there would be no medical staff in the back of the van as there would be in an ambulance, and geriatric patients such as Chandler were generally not transported in wheelchair vans. Eichenberg was notified of this decision and agreed to that mode of transport.
However, when SDMSE's ambulance crew arrived at Sharp, they suggested to their dispatch office that his transport be downgraded to a wheelchair van. The ambulance crew, on its own initiative, reevaluated the hospital's determination that Chandler should be transferred via ambulance. One of the SDMSE emergency medical technicians (EMTs) decided that Chandler should instead be transported by wheelchair van because he "seemed okay enough to sit and talk and he was taking small steps around the room." The EMT then called the SDMSE dispatch office to report that Chandler was a Medicare/Medi-Cal patient who could walk with minimal assistance and expressed concern that SDMSE would not get paid for the ambulance transport if Chandler could walk to the gurney. Specifically, the EMT told the SDMSE dispatcher that "[t]hey were saying that he wasn't able to walk but he refused to let us slide him because he wanted to stand up . . . and he stood up for us just fine," and that Chandler "would be able to walk with minimal assistance . . . and this is what our company is getting in trouble for right now because we're not getting our bills paid because people like this can walk to our gurney." !CT 385)!
SDMSE trains its personnel to have a general understanding of the Medicare guidelines for medical necessity. Approximately five (5) months prior to the accident, SDMSE held a general workforce meeting, at which SDMSE advised the staff that they were "having difficulty getting paid from [Medicare] because patients were not meeting the medical necessity requirement" for patients to be transported via ambulance in a gurney.
The SDMSE EMT told one of the hospital nurses, Uyen Le, who had not been involved in Chandler's initial discharge planning decision, that Chandler was able to walk and could be transported by wheelchair van. Le had told the other SDMSE EMT that she was not familiar with the patient. Le stated in her deposition testimony that she agreed to the downgrade because the EMT "persist[ed in] telling [her]" that the wheelchair van would be safe and that it would be "cheaper for the patient." According to Le, it was SDMSE who made the decision to change the mode of transport. According to the SDMSE EMTs, they only suggested a change in transport, and Sharp made the ultimate decision. Eichenberg was not notified of this change.
After the ambulance crew left the hospital, a wheelchair van driven by Michael Crutchfield arrived to transport Chandler back to his skilled nursing facility. Crutchfield observed that Chandler "was confused from the time I walked into the hospital room." Crutchfield placed Chandler in a wheelchair in the back of the wheelchair van. No other medical personnel were present in the van. Crutchfield stated in his deposition testimony that, based on his custom and practice, he secured Chandler's wheelchair to the wheelchair van with four-point straps, and that he placed a seatbelt across Chandler's chest and placed the buckle behind Chandler's back.
While transporting Chandler in the wheelchair van and traveling approximately 40 to 50 miles per hour on a freeway off-ramp, Crutchfield heard a noise in the back of the wheelchair van. Crutchfield briefly looked to the back of van, taking his eyes off of the road. When he refocused on the road, he noticed a car in front of him had braked suddenly. Crutchfield in turn also braked suddenly. The force of the sudden stop caused Chandler to fall out of his wheelchair. Chandler suffered serious injuries, including a right facial fracture, a ruptured globe of his right eye, a fractured orbital floor to the same eye, soft tissue swelling, facial lacerations, and a T1 superior facet fracture to his mid-back. Chandler died approximately two months later from cardiorespiratory arrest and coronary artery disease.
PROCEDURAL BACKGROUND
In her operative second amended complaint, Eichenberg alleged against SDMSE three causes of action, one of which—the elder abuse claim—is at issue in this appeal.
SDMSE filed a motion for summary adjudication on the elder abuse cause of action, asserting there was no triable issue of fact as to whether their actions were reckless. In her opposition to the motion, Eichenberg asserted that a triable issue of fact regarding recklessness existed. In support of her opposition, Eichenberg submitted the Kenney Declaration, wherein Kenney opined that SDMSE was reckless in (1) failing to transport Chandler via ambulance, (2) failing to properly secure Chandler in the wheelchair van, (3) driving Chandler in a wheelchair van to his skilled nursing facility, and (4) violating California Code of Regulations, title 22, section 51231.2, subdivision (e) and Vehicle Code section 20008. Regarding the choice of transport by wheelchair van, Kenney stated that SDMSE was reckless because, motivated by the financial concern of possible loss of revenue, they downgraded his ambulance transport without notifying Chandler's treating physician or Eichenberg, or seeking clarification from the discharge planner.
The trial judge granted SDMSE's motion. In finding in favor of SDMSE, the trial judge sustained SDMSE's evidentiary objection to the opinion statements in Eichenberg's Kenney Declaration that opined that SDMSE was reckless and found that there was no triable issue of material fact to establish that SDMSE's care of Chandler was reckless under section 15600 et seq.
Following the court's ruling, Eichenberg requested dismissal of the sole remaining cause of action for negligence against SDMSE. The court granted dismissal and entered judgment in favor of SDMSE. Eichenberg's appeal followed.
STANDARD OF REVIEW
"Since a motion for summary . . . adjudication 'involves pure matters of law,' we review a ruling on the motion de novo to determine whether the moving and opposing papers show a triable issue of material fact." (Travelers Cas. & Sur. Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.)
In evaluating de novo the propriety of a grant of summary adjudication, in practical effect we assume the role of a trial court and apply the same rules and standards that govern a trial court's determination. (See Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1121-1122.) In order to defeat the motion for summary adjudication, there must be evidence submitted that is sufficient to raise a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
Here, we are called upon to review summary adjudication in favor of SDMSE, the defendant. We view the evidence and the inferences reasonably drawn from them in the light most favorable to the plaintiff. (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 84 (Intrieri).)
DISCUSSION
I. EVIDENTIARY ISSUES
Eichenberg contends that the court erred by sustaining SDMSE's evidentiary objection to the Kenney Declaration. Eichenberg also contends that evidence submitted in support of SDMSE's motion for summary adjudication was not properly authenticated. We reject these contentions.
A. Kenney Declaration
To the extent that Eichenberg relied on the Kenney Declaration's legal conclusion that SDMSE's actions were reckless, the court properly sustained SDMSE's evidentiary objections. An expert's conclusions regarding a defendant's state of mind cannot be considered in determining whether a triable question of fact exists because conclusions of fact or law do not constitute evidentiary facts. (Intrieri, supra, 117 Cal.App.4th at pp. 83-84.) Thus, Kenney's legal conclusion that SDMSE was recklessness was properly excluded by the court in ruling on SDMSE's motion for summary adjudication.
B. Eichenberg's evidentiary objections
Eichenberg contends that SDMSE's motion for summary adjudication should have failed because the evidence submitted in support of the motion was not properly authenticated. We reject this contention.
SDMSE argues that because the trial court did not rule on Eichenberg's evidentiary objections, they are waived. However, even if a party fails to obtain a ruling on an evidentiary objection, a trial judge's failure to rule on properly presented objections results in their being impliedly overruled. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566.) Thus, although Eichenberg did not obtain a ruling on her evidentiary objections, this court may review them on appeal.
Eichenberg's evidentiary objections were limited to excerpts from Chandler's medical records. This medical information does not bear on the issue of recklessness; rather, it served to provide background information that was not in dispute. Moreover, although not properly authenticated when SDMSE made its motion, SDMSE authenticated these exhibits before the hearing on the motion for summary adjudication. Therefore, we conclude the court did not err in overruling Eichenberg's evidentiary objections.
II. ELDER ABUSE CLAIM
A. Applicable Authority
"The elements of a cause of action under the Elder Abuse and Dependent Adults Act, section 15600 et seq. [the Act] are statutory, and reflect the Legislature's intent to provide enhanced remedies to encourage private, civil enforcement of laws against elder abuse and neglect." (Intrieri, supra, 117 Cal.App.4th at p. 82.) Section 15610.07 defines "[a]buse of an elder or a dependent adult" to be either:
"(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering [; or]
"(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering."
The definition of "neglect" includes "[f]ailure to protect from health and safety hazards." (§ 15610.57, subd. (b)(3).) The term "goods and services necessary to avoid physical harm or mental suffering" may include the "provision of medical care for physical and mental health needs" and "[p]rotection from health and safety hazards." (§ 15610.35, subds. (a) & (e).)
Section 15657 authorizes the court to award attorney fees to the prevailing plaintiffs and allows survivors to recover pain and suffering damages in cases of intentional and reckless abuse where the elder has died. (§ 15657; see Delaney v. Baker (1999) 20 Cal.4th 23, 33.) To recover these heightened remedies, the plaintiff must establish "recklessness, oppression, fraud, or malice in the commission of th[e] abuse" by "clear and convincing evidence." (§ 15657, italics added.)
Section 15657 provides: "Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or financial abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: [¶] (a) The court shall award to the plaintiff reasonable attorney's fees and costs. The term 'costs' includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article. [¶] (b) The limitations imposed by Section 337.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. [¶] (c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney's fees permitted under this section may be imposed against an employer." (Italics added.)
"'Recklessness' refers to a subjective state of culpability greater than simple negligence, which has been described as a 'deliberate disregard' of the 'high degree of probability' that an injury will occur." (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) "Recklessness, unlike negligence, involves more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to the level of a 'conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.' [Citation.]" (Id. at pp. 31-32).
BAJI No. 7.47 defines recklessness under section 15657 in a similar manner: "The term 'recklessness' means a state of culpability greater than ordinary negligence. It is conduct that is undertaken with deliberate disregard for, or with a conscious disregard of, the fact that there is a high degree or probability that the elder . . . will sustain injury as a result of the conduct."
A reasonable inference that a defendant consciously disregarded a patient's safety can be made if evidence shows the defendant had knowledge of the potential danger that could result from its action and chose to disregard the known risk. In Intrieri, the court found that the plaintiff, an Alzheimer's patient, had raised a triable issue of fact as to whether the defendant's conduct in allowing a patient known to be upset and hostile into an Alzheimer's unit constituted reckless neglect because the defendant had consciously disregarded the safety of the plaintiff. (Intrieri, supra, 117 Cal.App.4th at pp. 84-85.) In that case, evidence was presented that hospital staff knew that the attacking patient had been upset and hostile prior to the incident and that the hospital nonetheless allowed that patient into the Alzheimer's unit where he attacked the plaintiff. (Id. at p. 84.)
B. Analysis
Eichenberg contends that there is a triable issue of material fact to establish that SDMSE acted recklessly by neglecting Chandler. Eichenberg specifically contends that SDMSE's conduct was reckless because (1) SDMSE personnel encouraged the hospital nurse to downgrade Chandler's transportation from an ambulance to a wheelchair van without regard to Chandler's safety; (2) SDMSE's wheelchair van driver failed to properly secure Chandler in the wheelchair van; (3) SDMSE's wheelchair van driver failed to drive safely which resulted in an automobile accident while driving with Chandler in the back of the vehicle; and (4) SDMSE violated California Code of Regulations, title 22, section 51231.2, subdivision (e) by failing to properly secure Chandler to his wheelchair in the wheelchair van, and Vehicle Code section 20008 by failing to report the incident.
1. Alleged statutory violations giving rise to claim of recklessness
Eichenberg asserts that violations of regulations and statutes constitute neglect, per se. She contends that SDMSE violated California Code of Regulations, title 22, section 51231.2, subdivision (e) by failing to properly secure Chandler to his wheelchair in the wheelchair van, and Vehicle Code section 20008 by failing to report the incident to the proper authorities. Citing Norman v. Life Care Centers of America (2003) 107 Cal.App.4th 1233, she asserts that these violations constitute elder abuse neglect under the Act.
Norman does not support Eichenberg's argument. Norman determined that regulatory violations entitled the plaintiff to a negligence per se jury instruction for her elder abuse cause of action. (Norman v. Life Care Centers of America, supra, 107 Cal.App.4th at p. 1246.) The Norman court did not hold that regulatory violations establish reckless neglect. In Norman, the plaintiff appealed a judgment following a jury verdict in favor of the defendant. (Id. at p. 1236.) While the plaintiff argued, and the Court of Appeal agreed, that the plaintiff was entitled to a negligence per se instruction in support of her neglect theory of elder abuse, Norman did not hold that negligence per se applied to show recklessness. (Id. at p. 1243.) Therefore, evidence of alleged statutory violations does not raise a triable issue of material fact as to the issue of SDMSE's recklessness.
2. Securing Chandler in the wheelchair van
We conclude that no reasonable inference can be drawn from the evidence that SDMSE's wheelchair van driver, Crutchfield, consciously disregarded Chandler's safety in securing Chandler to the wheelchair van. Because Chandler fell out of his wheelchair during the accident, a reasonable inference can be drawn that Chandler was not secured properly to the wheelchair. This, however, does not create a reasonable inference that Crutchfield knew the risks associated with improperly securing a patient in a wheelchair van and consciously chose to improperly secure Chandler. Crutchfield stated that although he did not actually recall securing Chandler's wheelchair to the van or buckling Chandler to the wheelchair, he customarily would secure the wheelchair to the van using four-point straps and would buckle the patient around the back of the wheelchair. Although Eichenberg apparently disputes that Chandler was properly secured in the wheelchair van, Chandler's failure to properly secure Chandler at most amounted to negligence—not recklessness—because there is no evidence that Crutchfield made a deliberate choice to improperly secure Chandler in the wheelchair van.
3. Alleged reckless driving
Also, in driving Chandler from Sharp to the skilled nursing facility, Crutchfield did not act recklessly. Again, at most, his actions were negligent. Crutchfield was traveling at a speed of about 40 to 50 miles per hour on an off-ramp when he heard a noise in the back of the van, diverted his attention away from the road, and then suddenly realized he needed to brake to avoid a collision. Eichenberg asserts that Crutchfield had been involved in an automobile accident in 2002 and that SDMSE knew about that accident. !(CT 246!) One previous automobile accident is not enough to show that SDMSE exhibited a conscious disregard for the potential danger to Chandler in employing Crutchfield to drive the wheelchair van. While this accident unfortunately resulted in severe injury to Chandler, Eichenberg's evidence fails to show that Crutchfield or SDMSE consciously disregarded Chandler's safety.
4. Transportation downgrade
Finally, Eichenberg contends that SDMSE acted recklessly in pressuring the hospital nurse to downgrade Chandler's transportation from an ambulance to a wheelchair van without regard to Chandler's safety. These actions were sufficient to raise a triable issue of fact as to whether SDMSE acted negligently. However, because section 15657 requires that Eichenberg prove that SDMSE personnel made a conscious and deliberate decision to place Chandler in a high degree of risk, Eichenberg failed to raise a triable issue of fact on her elder abuse claim.
The evidence presented by Eichenberg shows that SDMSE ambulance personnel, knowing that the hospital had determined that transport by ambulance was the safest way to transport Chandler, and lacking knowledge of the reasons that transport by ambulance had been chosen, reevaluated that determination and decided he should instead be transported by wheelchair van, in part because of a financial concern that SDMSE would not get paid for his transport by ambulance.
SDMSE personnel then told Sharp nurse Le, who had not been involved in Chandler's initial discharge planning decision, that Chandler could be transported by wheelchair van. A jury could find SDMSE personnel were negligent if they pressured Sharp to change Chandler's mode of transport based upon their own evaluation of his condition, ignoring his medical condition that required ambulance transport, because of their concerns they would not be paid.
However, we are constrained by the language of section 15657 and the definition of "recklessness," which does not include a failure to investigate or inform oneself. Rather, in order to raise a triable issue of fact, Eichenberg would have to show that SDMSE personnel knew the reasons for the original discharge transport order, and, acting with that knowledge, consciously disregarded a serious risk of injury to Chandler. Accordingly, even viewing the evidence and the inferences reasonably drawn from it in the light most favorable to Eichenberg, we conclude that Eichenberg has failed to raise a triable issue of material fact as to whether SDMSE's conduct constituted reckless neglect under the Act.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: BENKE, Acting P. J., IRION, J.