Daily Blast May 20, 2014

The California Court of Appeal, Sixth Appellate District (Santa Clara) published its opinion in a Worsham v. O’Connor Hospital (May 20, 2014, H037749 & H037838) ___ Cal.App.4th ___, analyzing whether the trial court properly sustained defendant’s demurrer to an elder abuse cause of action. The Court of Appeal held that the trial court properly sustained defendant’s demurrer without leave to amend because the allegations in the second amended complaint were “not sufficient to render [the defendant’s] conduct in failing to provide adequate staffing anything more than professional negligence.” (Slip opn., p. 7.)

Plaintiff’s mother, Juanita Worsham (“Worsham”), entered defendant O’Connor Hospital Inc. to undergo hip surgery. Following surgery, Worsham was discharged to O’Connor Hospital’s Transitional Care Unit for rehabilitative care. Worsham suffered a fall at the Transitional Care Unit. She broke her right arm and re-broke her hip. Plaintiff filed a complaint for negligence and elder abuse. (Slip opn., p. 2.) The basis of the elder abuse cause of action was that the Transitional Care Unit was understaffed and undertrained, and that the lack of sufficient well-trained staff caused Worsham’s fall. (Ibid.) The trial court sustained O’Connor Hospital’s demurrer to the elder abuse cause of action without leave to amend because plaintiff did not plead the elder abuse cause of action with particularity. Plaintiff then dismissed the negligence cause of action and appealed. (Id. at p. 3.)

The Court of Appeal affirmed. The court noted that the present case was similar to Carter v. Prime Health Care Paradise Valley LLC (2011) 198 Cal.App.4th 396. As in Carter, the allegations in plaintiff’s complaint concerned O’Connor Hospital’s alleged negligent undertaking of medical services, rather than a failure of those responsible for attending to Worsham’s basic needs and comforts to carry out their custodial or caregiving obligations. Plaintiff alleged that O’Connor Hospital was required to maintain specific staff-to-patient ratios to address the needs of patients and to ensure compliance with state and federal law. (Slip opn., p. 6.) According to plaintiff, O’Connor Hospital was aware that Worsham had a risk of falling and failed to have proper staffing in place to prevent her fall. (Id. at p. 7.) Further, plaintiff alleged that O’Connor Hospital was chronically understaffed, and did not adequately train the staff it did have. (Id. at p. 6.) The Court of Appeal concluded that these allegations “are not sufficient to render O’Connor’s conduct in failing to provide adequate staffing anything more than professional negligence. The allegations, if true, demonstrate O’Connor’s negligence in the undertaking of medical services, not a “fundamental ‘[failure] to provide medical care for physical and mental health needs.’” (Id. at p. 7 quoting Delaney v. Baker (1999) 20 Cal.4th 23, 34.)

Plaintiff also argued that O’Connor Hospital should have provided a “sitter” to ensure that Worsham did not fall. Worsham’s doctor had recommended that a sitter be provided. The Court of Appeal rejected this argument, noting that “this allegation, like that of understaffing and under-training, amounts to professional negligence. Absent specific facts indicating at least recklessness, any failure to provide adequate supervision would constitute professional negligence but not elder abuse.” (Slip opn., pp. 7-8.)

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