Hynes v. Glendale Adventist Med. Ctr.

JOEY G. HYNES, Plaintiff and Appellant, v. GLENDALE ADVENTIST MEDICAL CENTER et al., Defendants and Respondents.

B268606

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

June 20, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC482449)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory Keosian, Judge. Affirmed.

Law Office of Marilyn M. Smith, Marilyn M. Smith; Law Office of Lisa Fisher, Lisa Fisher; and Stephen R. McLeod for Plaintiff and Appellant.

LaFollette, Johnson, DeHaas, Fesler & Ames, David Ozeran, Christopher Wend, Nicoli Z. Richardson; Cole Pedroza, Kenneth R. Pedroza and Cassidy C. Davenport for Defendant and Respondent.

Plaintiff and appellant Joey Hynes is the sister of John Fitzgerald (Fitzgerald or decedent), and the administrator of his estate. Respondent Devinder Gandhi, M.D., is a health care provider who cared for the elderly Fitzgerald as he transferred between acute care hospitals and skilled nursing facilities from mid-August to mid-November 2010. In April 2011, several months after Dr. Gandhi ceased acting as his physician, Fitzgerald died at age 77, as a result of blunt head trauma after falling at his nursing home.

Appellant sued Dr. Gandhi, among others, for wrongful death and "neglect" under the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institutions Code section 15600, et seq. (Elder Abuse Act). Appellant asserts the trial court erred in granting Dr. Gandhi's motion for summary adjudication on the cause of action for Elder Abuse, after it concluded she failed to demonstrate the level of "reckless neglect" sufficient to entitle her to the heightened remedies under the Elder Abuse Act. Appellant also contends the court erred in granting Dr. Gandhi's subsequent motion for summary judgment on the cause of action for wrongful death, after she failed timely to oppose that motion. Finding no error, we affirm.

FACTUAL BACKGROUND

Glendale Adventist Medical Center

On August 11, 2010, Fitzgerald fractured his femur after falling from his wheelchair. Fitzgerald was transported to the emergency roomat Glendale Adventist Medical Center (GAMC).¹ The emergency room physician noted that Fitzgerald was angry, agitated, combative, extremely confused, had dementia and refused to follow direction. Antipsychotic medications (Haldol and Ativan) were administered because of Fitzgerald's "erratic behavior" before his discharge from the emergency room on August 11.

Dr. Gandhi became Fitzgerald's primary care physician after his admission to the medical floor at GAMC. He ordered a low sodium diet for Fitzgerald, and IV nutrition and hydration. Morphine was administered for pain, and Dr. Gandhi ordered orthopedic and psychiatric consultations.²

On August 11, 2010, Fitzgerald was evaluated by psychiatrist Mark Powers. Dr. Powers observed that Fitzgerald showed "generalized difficulty," was not fully oriented to time, made illogical associations and was very suspicious. His mood was angry, irritable and uncooperative. Fitzgerald was "very abusive" and had limited judgment and impulse control. Dr. Powers continued Fitzgerald on Haldol.

On August 12, 2010, an orthopedist recommended surgical repair of the fractured femur, upon cardiac clearance, and the surgery was performed on August 16, 2010. Post-surgery, Dr. Gandhi continued morphine for pain, and added Percocet, Tylenol and a sleep medication (Restoril). Fitzgerald developed a stage-1 pressure ulcer on his sacrum; Dr. Gandhi ordered treatment with ointment and a wound care consultation.

Studio City Rehabilitation Center

On August 19, 2010, following consultation with a social worker and with approval from his adult son, Fitzgerald was transferred from GMAC to Studio City Rehabilitation Center (Studio City Rehab), where he remained until September 30, 2010. Dr. Gandhi was Fitzgerald's primary care physician at Studio City Rehab. His treatment included multiple orders for care and treatment of Fitzgerald's surgical wound, bedsores and skin tears and discoloration. Dr. Gandhi ordered nutritional assessments for Fitzgerald, modified his diet as recommended by dieticians, and ordered the provision of nursing assistance with eating. Dr. Gandhi ordered that Fitzgerald's pain level be monitored every shift, and altered his medications, as necessary.

On August 26, 2010, on Dr. Gandhi's order, Nitin Nanda, M.D., conducted the first of several psychiatric examinations of Fitzgerald at Studio City Rehab. Dr. Nanda observed that Fitzgerald was "very confused" and "agitated with [his] caregivers" who said he "frequent[ly] . . . scream[ed] and thr[ew] things at staff and family." Fitzgerald wasdiagnosed with psychosis, depression and dementia, and Dr. Nanda prescribed psychotropic medications (Seroquel and Ativan).

On Dr. Nanda's orders, those medications were continued after Fitzgerald's second psychiatric examination by Dr. Nanda on August 30, during which he was reportedly "combative, aggressive, fighting and loud." On September 18, 2010, Dr. Nanda conducted a third evaluation of Fitzgerald. Dr. Nanda observed that Fitzgerald "continue[d] to pull his diaper off and play with his feces, and scream at times. [Appellant] believes this is healthy for him as that means he is more alert. [Fitzgerald] is very difficult to care for and cannot be redirected." Dr. Nanda reduced the dosage of Ativan, and ordered Celexa for depression. Dr. Nanda (not Dr. Gandhi) ordered and adjusted the administration of Fitzgerald's antipsychotic medications during his stay at Studio City Rehab. The record indicates that Dr. Nanda received signed informed consent forms from Fitzgerald's family members for the administration of the medications.

Saint Joseph Medical Center and Alameda Care Center

On September 30, 2010, swelling was observed in Fitzgerald's left cheek and Dr. Gandhi ordered him transferred to Saint Joseph Medical Center (St. Joseph), an acute care facility. He was diagnosed with staph and urinary tract infections, and renal failure, and prescribed a 14-day regimen of antibiotics to be completed at a skilled nursing facility, Alameda Care Center (ACC), where Dr. Gandhi continued to serve as his primary care physician.

Fitzgerald transferred to ACC on October 7, 2010. At the time of his admission to ACC, Fitzgerald had Stage 2 pressure ulcers on his buttocks. In addition to physical therapy, Dr. Gandhi ordered wound treatment, a pressure relieving mattress, regular repositioning, a professional nutritional assessment and various supplements. Dr. Gandhi also ordered a nutritional assessment from a dietitian and the provision of nutritional supplements, as necessary.

Fitzgerald's antipsychotic medications were continued after ACC obtained written consent from his son, and Dr. Nanda conducted an additional psychiatric evaluation. Dr. Nanda observed that Fitzgerald still engaged in inappropriate, combative behavior with staff and peers and his "[y]elling and cursing [had] increase[d]." Dr. Nanda diagnosed Fitzgerald with Alzheimer's dementia. Although appellant was "made aware of [her brother's] behaviors, . . . she denie[d]" them. On November 4, 2010, appellant contacted Dr. Gandhi to insist that all of Fitzgerald's psychotropic medications be discontinued. Dr. Gandhi complied with that request.

Verdugo Hills Hospital and Goldstar Healthcare Center

Fitzgerald's combative behavior escalated after his antipsychotic medications were discontinued; he yelled, cursed and struck out at staff. By November 10, Dr. Gandhi had concluded that Fitzgerald posed a danger to ACC staff and, with appellant's consent, had him transferred to the geropsychiatric unit at Verdugo Hills Hospital (Verdugo Hills).

Fitzgerald was transferred from Verdugo Hills to Goldstar Healthcare Center (Goldstar) on December 17, 2010. After Fitzgerald left Verdugo Hills, Dr. Gandhi no longer served as his attending physician. Fitzgerald fell out of bed on March 5, 2011. He died on April 6, 2011, due to blunt head trauma.

PROCEDURAL BACKGROUND

This lawsuit was filed in April 2012. The operative third amended complaint, filed May 27, 2014, alleges two causes of action against Dr. Gandhi: (1) negligence in violation of the Elder Abuse Act, seeking attorney fees and punitive damages, and (2) wrongful death, premised on medical negligence.

On August 25, 2014, Dr. Gandhi moved for summary adjudication on the first cause of action for Elder Abuse.³ The motion was supported by the declaration of Dr. Karen Josephson, an expert in internal and geriatric medicine. Dr. Josephson opined that Dr. Gandhi's care and treatment of Fitzgerald had been appropriate and within the standard of care, and never rose to the level of egregious misconduct necessary to establish a cause of action for Elder Abuse, or to support a claim for punitive damages. In response to allegations that Dr. Gandhi rendered a false diagnosis of psychosis to justify administration of antipsychotic medications to Fitzgerald, Dr. Josephson explained that suchmedications were ordered by decedent's psychiatrists, and opined that Dr. Gandhi acted appropriately in deferring to their treatment recommendations.

The hearing on the summary adjudication motion, initially scheduled for mid-November 2014, was continued several times.⁴ Thehearing was ultimately conducted on June 25, 2015. The court then took the matter under submission, and issued a written ruling on August 7, 2015. The court overruled appellant's evidentiary objections. It found that appellant had failed to demonstrate the existence of a triable issue of material fact whether, based on clear and convincing evidence,...