Nicholas Lewis et al vs Cottage Health Inc et al

Case Number

20CV01587

Case Type

Hearing Date / Time

Mon, 10/23/2023 - 10:00

Nature of Proceedings

Motion: Summary Judgment

Tentative Ruling

Nicholas Lewis, et al., vs. Cottage Health, Inc., et al. 

Case No. 20CV01587

           

Hearing Date: October 23, 2023                                                         

HEARING:              Defendants’ Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

ATTORNEYS:        For Plaintiffs Nicholas Lewis, individually and as guardian ad litem for Philip Jaworski: Garry M. Tetalman, Lauren John Udden, Tetalman & Udden

                                    For Defendants Santa Barbara Cottage Hospital, Inc., and Cottage Health, Inc.: Hugh S. Spackman, Cathy Anderson, Clinkenbeard, Ramsey, Spackman & Clark, LLP

TENTATIVE RULING:

The Court continues the hearing on the motion of defendants for summary judgment or, in the alternative, summary adjudication to December 4, 2023, to permit defendants to file an appropriate motion to seal medical records submitted in support of the motion. Defendants shall file and serve any motion to seal the records as provided herein on or before November 1, 2023.

Background:

On March 30, 2020, plaintiff Nicholas Lewis (Lewis), individually and as guardian ad litem for Philip Jaworski (Jaworski), filed his original complaint in this action asserting eight causes of action against Cottage Health, Inc. (Cottage Health) and Santa Barbara Cottage Hospital, Inc. (Cottage Hospital) (collectively, defendants): (1) violation of the federal Emergency Medical Treatment and Active Labor Act (EMTALA) (42 U.S.C. §1395dd); (2) negligence per se; (3) negligence; (4) gross negligence; (5) willful misconduct; (6) negligent infliction of emotional distress; (7) intentional infliction of emotional distress; and (8) professional negligence. On October 8, Lewis filed a first amended complaint (FAC) asserting four causes of action: (1) violation of EMTALA; (2) negligence; (3) intentional infliction of emotional distress; and (4) professional negligence.

On October 21, 2020, defendants Cottage Hospital and Cottage Health, the parent corporation of Cottage Hospital, filed their demurrers and motions to strike the FAC.

On November 16, 2020, the demurrers to the FAC were sustained by the Court. As to the claims by Lewis in his individual capacity, the Court sustained the demurrer without leave as to all claims except the claim for intentional infliction of emotional distress on the grounds of lack of standing. The Court sustained the demurrer to the remaining causes of action alleged in the FAC for EMTALA, negligence, and intentional infliction of emotional distress—with leave to amend. The Court noted that the second cause of action (negligence) and the fourth cause of action (professional negligence) alleged in the FAC were duplicative and sustained the demurrer to the second cause of action on that basis.

On November 24, 2020, plaintiffs filed their SAC asserting eight causes of action against defendants: (1) violation of EMTALA (by Jaworski); (2) intentional misrepresentation (by Lewis); (3) intentional misrepresentation (by Jaworski); (4) tortious interference with contract (by Lewis); (5) intentional infliction of emotional distress (by Lewis); (6) intentional infliction of emotional distress (by Jaworski); (7) professional negligence (by Jaworski); and (8) violation of the Unfair Practices Act (UPA) (Bus. & Prof. Code, § 17000 et seq.) (by Jaworski). On January 11, 2021, defendants filed their demurrer to the first through sixth and eighth causes of action alleged in the SAC on the grounds that these causes of action were not sufficiently alleged. Defendants concurrently moved to strike portions of the SAC.

On March 15, 2021, the Court sustained the demurrer of defendants without leave to amend as to the first (violation of EMTALA) and fifth (intentional infliction of emotional distress as to Lewis) causes of action alleged in the SAC, sustained the demurrer with leave to amend as to the second (intentional misrepresentation as to Lewis), third (intentional misrepresentation as to Jaworski), and fourth (tortious interference with contract as to Lewis) causes of action, and otherwise overruled the demurrer. The Court granted leave to amend to replace the fourth cause of action with a cause of action under Probate Code section 4742. The Court granted the motion to strike the allegation regarding a motion under Code of Civil Procedure section 425.13. The Court otherwise denied the motion to strike.

On March 29, 2021, plaintiffs filed their third amended complaint (TAC) asserting six causes of action: (1) intentional misrepresentation (by Lewis); (2) intentional misrepresentation (by Jaworski); (3) violation of Probate Code section 4742 (by Jaworski); (4) intentional infliction of emotional distress (by Jaworski); (5) professional negligence (by Jaworski); and (6) violation of the Unfair Practices Act (UPA) (Bus. & Prof. Code, § 17000 et seq.) (by Jaworski). As alleged in the TAC:

Plaintiff Jaworski suffered and suffers from brain cancer, causing numerous symptoms including hallucinations and the appearance of schizophrenia. (TAC, ¶¶ 8-9.) On January 2, 2019, Jaworski was brought to the emergency department of defendant Santa Barbara Cottage Hospital, Inc. (Cottage Hospital) by his brother and caregiver, plaintiff Lewis, after Jaworski inflicted several lacerations on himself with scissors. (TAC, ¶ 10.)

On January 4, 2019, Lewis met with a Cottage Hospital social worker and with the emergency room doctor, who both stated that they felt that Jaworski was fine and ready to be discharged to home. (TAC, ¶ 12.) Lewis explained that Jaworski was not fine and that he believed Jaworski’s cancer had returned. (Ibid.) On January 6, Lewis received a call from Cottage Hospital asking him to take Jaworski home. (TAC, ¶ 13.) Lewis spoke again to the doctor and stated that he was sure that Jaworski’s cancer had returned based on how he was behaving. (Ibid.) Lewis asked for another MRI to be performed to confirm this, but this request was ignored. (Ibid.) A few hours after this call, Lewis received another call from a different nurse at Cottage Hospital stating that Jaworski had suffered from a medical emergency from a dramatic drop in his sodium levels. (Ibid.) Jaworski was not stable and was not in any position to be transferred. (Ibid.) This emergency led to Cottage Hospital moving Jaworski to the third floor for additional treatment. (Ibid.)

Throughout the remainder of January and February, Jaworski was attended by different doctors and assigned different social workers. (TAC, ¶¶ 14-18.) Plaintiffs believe that the social worker assigned in February hid Jaworski’s cancer diagnoses and did nothing but try to dump Jaworski on a facility that was not equipped to handle a patient as sick as Jaworski. (TAC, ¶ 18.)

The last time Lewis saw Jaworski was on April 16, 2019. (TAC, ¶ 21.) On April 19, when Lewis went to Cottage Hospital to visit Jaworski, he was told that Jaworski was gone. (Ibid.) Lewis had power of attorney over Jaworski and was his caregiver, but no one at Cottage hospital had told him that Jaworski was to be moved and threatened to call security if Lewis did not leave the property. (Ibid.)

After several months of searching, Lewis was finally told by the Social Security office that Jaworski was living in Northridge, California, at a congregate living facility called Best Quality Living. (TAC, ¶ 24.) Best Quality Living does not hold itself out to be a care center for cancer patients and does not have the ability to treat and care for patients like Jaworski. (TAC, ¶ 25.) When Lewis contacted Best Quality Living, he was told that Jaworski was not there. (Ibid.) Lewis called the Los Angeles Public Health Department, which then did a wellness check on Jaworski. (Ibid.) Lewis was informed that Jaworski was clean but unintelligible. (Ibid.) Immediately afterwards, Jaworski was moved to a sister facility called Our Sweet Home in Chatsworth, California, which is nothing more than a room and board facility. (Ibid.) Jaworski is continually being moved around to different locations. (TAC, ¶ 26.)

On August 2, 2019, Lewis received a call from one of the owners of Best Quality Living who asked if Lewis would lie to the Medi-Cal administrator in Santa Barbara County so that they could collect money they could not collect from the insurance. (TAC, ¶ 26.) The owner stated that Cottage Health was supposed to have paid them for the first three months of Jaworski’s stay but they did not. (Ibid.)

Lewis filed a complaint with the California Department of Public Health, which issued a ruling finding in favor of Lewis and confirming that Cottage Health had unlawfully “dumped” Jaworski outside of the county. (TAC, ¶ 24.)

On April 29, 2021, defendants filed their demurrer to the TAC on the grounds that plaintiffs fail to state their first, second, and third causes of action, and that the third cause of action is also uncertain. The demurrer was opposed by plaintiffs.

On July 12, 2021, the Court overruled defendants’ demurrer to the TAC, and deemed the TAC amended to replace “4727” in paragraph 48 with “4742.” On July 23, 2021, defendants filed an answer to the TAC generally denying its allegations and asserting fifteen affirmative defenses. The TAC is the operative pleading.

On March 24, 2023, defendants filed a motion for summary judgment or, in the alternative, summary adjudication of the first, second, third, fourth, fifth, and sixth causes of action alleged in the TAC, on the grounds that the medical care and treatment provided to Jaworski was within the applicable standard of care, that Jaworski was properly transferred to an appropriate skilled care facility, that Jaworski was assessed and deemed medically competent during hospitalization to make medical decisions, and that Cottage Hospital complied with Jaworski’s request not to inform his brothers about his transfer, among other grounds. The motion is opposed by plaintiffs.

Analysis:

In support of the motion, defendants have lodged as Exhibit C confidential medical records pertaining to Jaworski (the medical records) maintained by Cottage Hospital and certified by Cottage Hospital’s heath information manager Eva DeLaMora. (See Defendants’ Lodgment of Exh. C filed on Mar. 3, 2023.) Defendants assert that the medical records were reviewed and relied by defendants’ expert, Jeffrey Shapiro, M.D. (Ibid.; see also Shapiro Decl., ¶ 4; see Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 [medical and hospital records relied on by a party’s expert must be properly before the court on summary judgment].)

To support their motion, defendants also cite to portions of the medical records separately as evidentiary support for additional facts and evidence offered by defendants that are independent from the facts and opinions stated in the Shapiro declaration. (See, e.g., Sep. Stmt., UMF No. 6 [citing portions of the medical records to establish facts regarding Jaworski’s evaluation and MRI]; No. 7 [citing portions of the medical records to establish facts regarding a physician’s conversation with neurology and Jaworski’s neurology visit]; No. 11 [citing portions of the medical records to establish facts regarding Jaworksi’s medical treatment and consultations]; 12 [citing portions of the medical records establish facts regarding Jaworski’s electroencephalogram].) By citing portions of the medical records to establish facts separate from or in addition to those asserted by defendants’ expert, defendants effectively rely on the medical records as an independent grounds for adjudication of the motion.

To the extent defendants independently rely on Jaworski’s confidential medical records to provide evidentiary support for the material facts offered by defendants apart from the facts and opinions presented by defendants’ expert, the public has a right of access to the medical records. (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 485.) As the medical records have not been publicly filed, the records on which defendants rely are not properly before the Court for purposes of adjudicating facts and evidence submitted in support of the motion that in addition to the facts and opinions stated in the Shapiro declaration. (See Mao’s Kitchen, Inc. v. Mundy (2012) 209 Cal.App.4th 132, 150 [“[f]iling a document makes it a part of the permanent court file, whereas lodging a document makes it only temporarily a court record”].)

The Court requires an appropriate and proper record on which to determine the motion. Therefore, for all reasons discussed above, the Court will continue the motion to permit defendants to file a procedurally and substantively appropriate motion to seal the medical records.