Kruthanooch v. Glendale Adventist Medical Center ( 2022 )

Filed 10/4/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DANIEL KRUTHANOOCH, B306423
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC692929
v.
GLENDALE ADVENTIST
MEDICAL CENTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Christopher K. Lui, Judge. Affirmed.
Doyle Law, Conal Doyle; Seber Bulger and James Bulger
for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport;
Reback, McAndrews, Blessey, Raymond L. Blessey and Evan N.
Okamura for Defendant and Appellant.
Tucker Ellis and Traci L. Shafroth for California Medical
Association, California Dental Association, and California
Hospital Association as Amici Curiae on behalf of Defendant and
Appellant.
_______________________________________
INTRODUCTION
The Estate of Nick Kruthanooch (the Estate), by and
through plaintiff and successor in interest Daniel Kruthanooch,
appeals from the judgment after the trial court granted the
motion for judgment notwithstanding the verdict in favor of the
defendant, Glendale Adventist Medical Center (GAMC), following
a jury trial of the Estate’s claim of neglect under the Elder Abuse
and Dependent Adult Civil Protection Act (Welf. & Inst. Code, §
15600 et seq.)1 (the Act). Nick Kruthanooch (Kruthanooch), the
decedent, presented at the acute care hospital operated by GAMC
with complaints of weakness and lightheadedness. Several hours
later, Kruthanooch underwent a magnetic resonance imaging
(MRI) scan and sustained a burn to his abdomen due to GAMC’s
failure to screen Kruthanooch for electrically conductive
materials prior to the scan. Kruthanooch was discharged two
days later.
The court concluded that substantial evidence failed to
support that GAMC had a substantial caretaking or custodial
relationship with Kruthanooch, a prerequisite for recovery for
neglect under the Act as discussed in Winn v. Pioneer Medical
Group, Inc. (2016) 63 Cal.4th 148 (Winn). The court also
concluded that substantial evidence failed to support that
GAMC’s conduct in failing to properly screen Kruthanooch was
neglect under the Act because it arose not from a failure to
provide medical care but from the negligent provision of care.
We hold that the court was correct on both grounds. We
decline to reach the issue of whether GAMC’s conduct was
1All further undesignated statutory references are to the Welfare and
Institutions Code.
2
reckless and the additional issues raised by GAMC in its
protective cross-appeal.
FACTS AND PROCEDURAL BACKGROUND
On July 26, 2016, Kruthanooch presented at GAMC’s
emergency department at approximately 2:30 p.m. Dr. Harlan
Gibbs and registered nurse Courtney Ulrich assumed care for
Kruthanooch. Kruthanooch had a history of coronary artery
disease, hypertension, hyperlipidemia, and diabetes. He had also
had back surgery earlier that year. According to the emergency
department report, Kruthanooch came for evaluation because he
“woke up weaker than usual.” Kruthanooch was experiencing
generalized weakness, which was worse in his lower extremities,
as well as lightheadedness for the prior 24 hours. However,
Kruthanooch was alert, “oriented to person, place, time, and
situation,” and cooperative.
Shortly after his arrival, Dr. Gibbs ordered an
electrocardiogram (ECG) for Kruthanooch. “Medi-Trace” brand
ECG (or EKG) pads were placed on Kruthanooch. Dr. Gibbs then
sent Kruthanooch for an MRI of his spine in order to rule out
spinal cord compression. The date and time listed for the exam
on the MRI report was 4:55 p.m.
Ulrich testified that she did not remember anything from
her encounter with Kruthanooch before his MRI and did not
remember sending him for the MRI. However, she testified that
in 2016, after a doctor ordered an MRI, she would go through an
MRI checklist with the patient and would provide the checklist to
the transporter, who would deliver the patient to the MRI
department. When screening a patient before an MRI in 2016,
Ulrich did not look for ECG pads.
3
Ilan Davoodian was the MRI technologist who performed
Kruthanooch’s MRI. In 2016, Davoodian had not received
training regarding the dangers of ECG pads in an MRI machine
and did not screen patients for ECG pads. However, Davoodian
would screen patients with a computerized system to see whether
prior imaging had been done on the patient, used a metal
detector to detect potentially harmful metals, and went through a
questionnaire with the patient.
Davoodian conducted a scan for metal on Kruthanooch and
spoke with him for approximately ten minutes to obtain his
medical history before conducting the MRI scan. After she
started the scan, Davoodian noticed motion in the image and
stopped the scan and asked Kruthanooch not to move as it was
impacting the image. Kruthanooch replied that he would not
move, but shortly thereafter he moved again. Davoodian again
asked that he remain still so they could get a clear image and
Kruthanooch agreed. After the scan was completed, Davoodian
provided it to the radiologist, Dr. Judy Liu, who interpreted the
image.
When Kruthanooch was returned to the emergency
department, he informed Ulrich that “something was going on
with his lower abdomen.” Ulrich did not recall whether she
removed the ECG pad or a doctor did, but she was present when
they discovered the burn on Kruthanooch’s abdomen. According
to Ulrich, “[i]t looked like a blister or second-degree burn.” She
did not recall Kruthanooch saying he was in pain, but that he
“pointed and said something happened here.” Ulrich reported the
burn to the charge nurse, reached out to the technologist to
determine what happened, noted the burn in Kruthanooch’s
medical chart, and photographed it.
4
Dr. Gibbs’ reexamination and reevaluation notes in
Kruthanooch’s emergency department report, signed at 7:21 p.m.,
state: “No evidence of cauda equina. I cannot explain the lower
extremity weakness essentially inability to ambulate at this time.
He has a baseline creatinine according to his history from 2
weeks ago for approximately 2. His renal function now is
remarkably worse. This along with rhabdomyolysis. Could this
be an underlying muscle disorder? In any case he will require
hydration for the rhabdomyolysis. He’ll require
admission. . . . [¶] While an [sic] MRI apparently the EKG
electrode was not removed and the patient sustained a second
degree burn to the left lower quadrant.”
At some point on July 26, Kruthanooch was admitted as an
inpatient to the telemetry unit, in which patients receive 24-hour
cardiac monitoring. The emergency department report states
that admitting orders were requested at 6:48 p.m., and at 7:21
p.m. Dr. Gibbs noted that Kruthanooch “required admission to
telemetry for further care and treatment.” Ulrich testified that it
was her understanding that Kruthanooch was an inpatient of the
hospital, though it is unclear what timeline she was referring to.
During his stay in the hospital, Kruthanooch was started
on aggressive intravenous (IV) fluid hydration and was referred
to nephrology for his underlying kidney issues. He was also
evaluated by a physical therapist and recommended a walker and
home physical therapy. On July 28, 2016, Kruthanooch was
discharged. His discharge diagnosis noted that Kruthanooch
would have to continue IV fluid hydration and resuscitation to
address both his dehydration and his rhabdomyolysis. He was
also diagnosed with acute on chronic renal failure, hypertension,
type 2 diabetes, “mildly elevated troponin in the setting of acute
5
kidney injury,” chronic anemia, DVT prophylaxis, and adult
failure to thrive. A home health consult was ordered on July 28
to change the dressing on Kruthanooch’s burn and to apply
medication. GAMC treated Kruthanooch’s burn on an outpatient
basis for approximately seven weeks.
On February 2, 2018, Kruthanooch filed a civil complaint
against GAMC, asserting causes of action for: (1) professional
negligence, (2) elder abuse, and (3) elder abuse per se.2 On
November 18, 2018, Kruthanooch died. The Estate was
substituted in as plaintiff shortly thereafter. In the operative
first amended complaint, the Estate dropped the professional
negligence cause of action and added a claim for punitive
damages. The claims arose from the burn that Kruthanooch
sustained in the MRI machine.
The trial was held in November 2019. In addition to
testimony from GAMC employees Ulrich and Davoodian, the jury
heard testimony from Rafael Rodriguez, the “unofficial MRI
safety officer” for GAMC. Rodriguez was responsible for MRI
safety at the hospital and assisted the hospital with following
guidelines from accredited institutions. Rodriguez testified that
it was most important to screen for ferromagnetic metal, which
has “attractive properties when it’s close to a magnetic field,”
because those metals “present[] a significant danger or threat to
the patient, and that’s what we’re trained for.” The metal
detector used by the MRI technologists detected ferromagnetic
metals. Rodriguez testified that he understood that there could
2Kruthanooch also brought claims against Adventist Health
System/West but the Estate dismissed those claims with prejudice
prior to trial.
6
be electrically conductive materials that were not ferromagnetic,
but was not aware at the time of the incident that the ECG pads
fell into that category. Rather, Rodriguez did not believe that
putting a patient in the MRI machine with ECG pads was
dangerous based on his experience in different hospitals, his
training, and “scanning hundreds of patients” with the ECG pads
on. Before Kruthanooch was injured, it was standard practice at
GAMC to allow ECG pads to remain on a patient undergoing an
MRI scan. In response to Kruthanooch’s injury, GAMC changed
its policy and began to require that MRI technologists remove
ECG pads before scans.
The Estate introduced expert testimony from Dr. Jeffrey
Silverman, a specialist in diagnostic radiology. Dr. Silverman
opined that GAMC’s screening process before Kruthanooch
underwent the MRI scan was not consistent with the standard of
care in radiology. He testified that the basic rule, known
“everywhere,” is that “one never puts any item into the MR
machine environment . . . unless the item is unequivocally known
to be MR safe or MR conditional.” Dr. Silverman testified that he
believed that the hospital had failed to train its employees
properly and that they deviated from the industry standard
practice by failing to have a policy to screen for and remove ECG
pads that are not safe for use in MRI machines.
GAMC introduced the expert testimony of Dr. Terry
Dubrow, a specialist in reconstructive plastic surgery.
Dr. Dubrow opined that the performance of the MRI with ECG
pads was consistent with the manner that MRIs are performed in
outpatient surgery centers and hospitals and thus within the
standard of care. Dr. Dubrow also opined that the metal in the
ECG pads did not cause Kruthanooch’s burn. He testified that
7
the actual cause was “unknowable,” but that Kruthanooch was
“very, very ill” and that anything from “fluid status changes” to
something on the surface of Kruthanooch’s skin could have been
the cause.
The jury also heard testimony from Daniel and Sam
Kruthanooch, the decedent’s sons.3 Sam testified that he had
advised Kruthanooch to go to the hospital when his father
informed him that he was feeling weak. When he visited his
father that evening, he learned of the burn. He testified that the
burn “seemed to affect his walking immediately.” Sam testified
that, prior to the burn, Kruthanooch “did everything on his own,”
and that after the burn he relied on his wife “to do just about
everything for him,” such as helping him to move about the
house, helping him to shower and use the bathroom, cooking his
meals, and doing the shopping—things that Kruthanooch had
previously handled on his own. Sam recognized that his father
“had a lot of health problems” but testified that “the burn just
made those things much worse.” Daniel testified that, prior to
receiving the burn, Kruthanooch was “very independent” and was
“up and adam [sic] . . . a go-getter . . . and he did everything
himself.” After the burn, Daniel testified that Kruthanooch was
“a different person,” “couldn’t get up,” and “couldn’t do stuff on
his own.”
The jury concluded that Kruthanooch was 65 years of age
or older, that GAMC had care or custody of Kruthanooch, that
one or more of GAMC’s employees failed to use the degree of care
that a reasonable person in the same situation would have used
3The decedent and his sons share the same last name. We refer to his
sons by their first names to avoid confusion. We intend no disrespect.
8
in providing care, and that this conduct was a substantial factor
in causing harm to Kruthanooch. The jury also concluded that
the Estate had proved recklessness, oppression, or malice by
clear and convincing evidence and that an officer, director or
managing agent of GAMC had authorized this conduct. However,
the jury awarded no damages.
The court entered judgment on January 15, 2020, and
GAMC timely moved for judgment notwithstanding the verdict
(JNOV). GAMC argued that there was no substantial evidence
that GAMC had care or custody of Kruthanooch at the time of the
MRI scan, and no substantial evidence that it had committed
elder neglect in the absence of substantial evidence that it had
failed to provide medical care or that it failed to protect
Kruthanooch from health and safety hazards. GAMC also argued
that there was no substantial evidence supporting the heightened
elder abuse remedies because there was no substantial evidence
of recklessness or that Davoodian was an unfit employee or that
GAMC ratified her conduct.
The court granted the motion and entered judgment for
GAMC. The court concluded that “the evidence at trial
established that decedent presented at the emergency room
seeking treatment, and that the health care providers in the
emergency room issued orders for treatment and diagnostic
testing as indicated by decedent’s complaints. Nothing in the
evidence at trial established that decedent went to the hospital
seeking a greater degree of care or assistance beyond medical
treatment to address his complaints, or that GAMC offered or
promised decedent anything other than medical care that would
correspond to his complaints in the context of an emergency
room.” Accordingly, “[t]he evidence at trial did not show that a
9
relationship deeper than an ordinary patient-provider
relationship was either sought by decedent or offered by GAMC.
Thus, no ‘care or custody’ relationship has been established for
purposes of the Elder Abuse Act.”
The court also agreed that no substantial evidence
supported “that GAMC either failed to provide medical care, or
that it failed to protect decedent from health and safety hazards.”
The court concluded that the injury that Kruthanooch suffered
was not the result of “a failure to provide medical care that would
fall within the scope of the Elder Abuse Act—it is a complaint
that treatment actually provided was poorly performed, i.e., a
claim for professional negligence.” Further, “while the evidence
may have shown that GAMC’s manner of administering the MRI
may have fallen below the reasonable standard of care, finding
that the delivery of substandard medical treatment in a hospital
setting is elder abuse would run afoul of the Winn principle that
a patient’s elder status alone does not trigger the Elder Abuse
Act.”
The court also concluded that substantial evidence did not
support the jury’s finding of recklessness under the Act. The
court observed that recklessness requires that the plaintiff
establish “that ‘the employer had advance knowledge of the
unfitness of the employee and employed him or her with a
conscious disregard of the rights or safety of others or authorized
or ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud, or
malice.’ ” The court determined that Rodriguez’s and
Davoodian’s belief that it was safe to allow ECG pads in the MRI
machine did “not show subjective knowledge of a high degree of
risk.” The court stated that Dr. Silverman’s testimony merely
10
established the objective standard, rather than the subjective
beliefs of GAMC’s employees, and that his description of GAMC’s
conduct as “reckless” was an extemporaneous rather than legal
use of the term. The court concluded that GAMC’s remaining
contention “that GAMC did not authorize or ratify the conduct of
the MRI technician Ms. Davoodian” was moot in light of its
finding that recklessness was not established.
The Estate timely appealed.
CONTENTIONS
The Estate contends that the court improperly ignored
substantial evidence in concluding that GAMC did not have care
or custody of Kruthanooch as a matter of law and disregarded the
issue of whether GAMC failed to protect Kruthanooch from
health and safety hazards in concluding that GAMC did not
commit neglect under the Act. Similarly, the Estate argues that
the court ignored evidence of institutional recklessness and
improperly drew inferences against the Estate with respect to the
credibility of witnesses.
GAMC argues that the court correctly concluded that the
evidence supported that the relationship between GAMC and
Kruthanooch was that of healthcare provider and patient only
and that the substandard provision of medical care cannot
sustain a claim of neglect under the Act. GAMC also contends
that the court correctly focused its analysis on the subjective
knowledge of GAMC’s employees and that the JNOV should be
affirmed on the independent basis that the Estate did not prove
by clear and convincing evidence that an officer, director, or
managing agent of GAMC authorized or ratified any wrongful
conduct. In its protective cross-appeal, GAMC argues that the
verdict was not supported by clear and convincing evidence of
11
corporate authorization or ratification and that the Estate is not
entitled to enhanced remedies in the absence of an award of
damages.
GAMC’s amici curiae, California Medical Association,
California Dental Association, and California Hospital
Association, contend that, if we conclude that neglect under the
Act applies to alleged omissions by health care providers while
providing medical care, we will undermine the goals of the Act
and the statutory regime governing professional negligence
claims. Accordingly, the amici urge us to conclude that the
negligent provision of medical services must be evaluated as
professional negligence, not as elder neglect under the Act.
DISCUSSION
We agree with GAMC and its amici curiae that, at its core,
this action concerns professional negligence and is therefore
incompatible with a claim of neglect under the Act. We hold that
the court correctly ruled that substantial evidence does not
support that a robust caretaking or custodial relationship existed
between Kruthanooch and GAMC. We further conclude that
GAMC’s conduct in failing to properly screen Kruthanooch prior
to the MRI is not neglect under the Act as a matter of law.
Accordingly, we affirm without reaching the remaining issues
raised on appeal.
1. Standard of Review
“ ‘ “A motion for judgment notwithstanding the verdict may
be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support. [Citation.] [¶] . . . As in
the trial court, the standard of review [on appeal] is whether any
12
substantial evidence—contradicted or uncontradicted—supports
the jury’s conclusion.” ’ [Citation.]” (Webb v. Special Electric Co.,
Inc. (2016) 63 Cal.4th 167, 192.) “ ‘ “In general, substantial
evidence has been defined in two ways: first, as evidence of
‘ “ ‘ponderable legal significance . . . reasonable in nature,
credible, and of solid value’ ” ’ [citation]; and second, as ‘ “relevant
evidence that a reasonable mind might accept as adequate to
support a conclusion” ’ [citation].” [Citation.] “Unless the
finding, viewed in the light of the entire record, is so lacking in
evidentiary support as to render it unreasonable, it may not be
set aside.” [Citation.]’ [Citation.]” (Nolte Sheet Metal, Inc. v.
Occupational Safety & Health Appeals Bd. (2020) 44 Cal.App.5th
437, 442.)
We, like the trial court, may not reweigh the evidence or
judge the credibility of witnesses. “ ‘ “ ‘If the evidence is
conflicting or if several reasonable inferences may be drawn, the
motion for judgment notwithstanding the verdict should be
denied. . . .’ ” ’ [¶] When an appellate court reviews an order
granting JNOV, it will ‘ “ ‘resolve any conflict in the evidence and
draw all reasonable inferences therefrom in favor of the jury’s
verdict.’ ” ’ [Citation.]” (In re Coordinated Latex Glove Litigation
(2002) 99 Cal.App.4th 594, 606.)
2. The Act
“The Elder Abuse and Dependent Adult Civil Protection
Act ([§] 15600 et seq.) affords certain protections to elders and
dependent adults. Section 15657 of the Welfare and Institutions
Code provides heightened remedies to a plaintiff who can prove
‘by clear and convincing evidence that a defendant is liable for
physical abuse as defined in Section 15610.63, or neglect as
defined in Section 15610.57,’ and who can demonstrate that the
13
defendant acted with ‘recklessness, oppression, fraud, or malice
in the commission of this abuse.’ ” (Winn, supra, 63 Cal.4th at p.
152.) These remedies include an award of attorney’s fees.
(§ 15657, subd. (a).) Section 15610.57 defines “neglect” as “[t]he
negligent failure of any person having the care or custody of an
elder or a dependent adult to exercise that degree of care that a
reasonable person in a like position would exercise,” and includes
“[f]ailure to protect from health and safety hazards.” (§ 15610.57.
subds. (a)(1), (b)(3).)
Section 15657.2 provides: “Notwithstanding this article,
any cause of action for injury or damage against a health care
provider, as defined in Section 340.5 of the Code of Civil
Procedure, based on the health care provider’s alleged
professional negligence, shall be governed by those laws which
specifically apply to those professional negligence causes of
action.”
3. The trial court properly granted GAMC’s motion for
judgment notwithstanding the verdict.
3.1. Substantial evidence does not support that
GAMC had a robust caretaking or custodial
relationship involving ongoing responsibilities
with Kruthanooch.
The court correctly concluded that the evidence presented
at trial was insufficient to establish that a robust caretaking or
custodial relationship existed between Kruthanooch and GAMC.
Because the parties appear to agree that Winn is controlling, we
examine the Supreme Court’s decision and the decisions of the
Courts of Appeal applying it in some detail before turning to the
evidence presented in this case.
14
In Winn, the Supreme Court considered “whether a claim of
neglect under the Elder Abuse Act requires a caretaking or
custodial relationship—where a person has assumed significant
responsibility for attending to one or more of those basic needs of
the elder or dependent adult that an able-bodied and fully
competent adult would ordinarily be capable of managing without
assistance.” (Winn, supra, 63 Cal.4th at p. 155.) The decedent in
that case was treated on an outpatient basis at the defendant’s
facilities for “ ‘painful onychomycosis,’ a condition that may limit
mobility and impair peripheral circulation.” (Id. at pp. 152–153.)
One of the doctors employed by the defendant noted impaired
vascular flow in the decedent’s lower legs, and ultimately she was
diagnosed with peripheral vascular disease. (Id. at p. 153.)
Doctors employed by the defendant treated the decedent on a
number of subsequent occasions but never referred the decedent
to a specialist, even though on two of these visits the doctor was
unable feel a pulse in the decedent’s feet. (Ibid.) The day after
her last visit to the defendant’s facilities, the decedent was
hospitalized “with symptoms consistent with ischemia and
gangrene. She suffered from sepsis, or blood poisoning, which
caused her foot to appear black, and doctors unsuccessfully
attempted a revascularization procedure.” (Id. at pp. 153–154.)
After two amputation procedures, the decedent was hospitalized
for blood poisoning and died several days later. (Id. at p. 154.)
The plaintiffs in Winn asserted a cause of action against
the defendants under the Act. (Winn, supra, 63 Cal.4th at
p. 154.) The court sustained the defendants’ demurrer without
leave to amend and the plaintiffs appealed. (Ibid.) A majority of
the Court of Appeal reversed, concluding that the Elder Abuse
Act “does not require the existence of a custodial relationship in
15
order for the plaintiff to establish a cause of action for neglect”
and that “the ‘statutory language simply does not support
defendants’ contention that only “care custodians” are liable for
elder abuse.’ ” (Id. at pp. 154–155.)
Our high court concluded that “the Act does not apply
unless the defendant health care provider had a substantial
caretaking or custodial relationship, involving ongoing
responsibility for one or more basic needs, with the elder patient.
It is the nature of the elder or dependent adult’s relationship
with the defendant—not the defendant’s professional standing—
that makes the defendant potentially liable for neglect.” (Winn,
supra, 63 Cal.4th at p. 152.) In construing section 15610.57,
which defines neglect and sets forth a nonexhaustive list of
examples, our high court emphasized that most of the examples
“seem to contemplate . . . the existence of a robust caretaking or
custodial relationship—that is, a relationship where a certain
party has assumed a significant measure of responsibility for
attending to one or more of an elder’s basic needs that an able-
bodied and fully competent adult would ordinarily be capable of
managing without assistance.” (Winn, at pp. 157–158.)
The Supreme Court observed that “[t]he remaining
example of neglect—the ‘[f]ailure to provide medical care for
physical and mental health needs’ (§ 15610.57, subd. (b)(2))—fits
the pattern. As with the other examples of neglect, the failure to
provide medical care assumes that the defendant is in a position
to deprive an elder or a dependent adult of medical care . . . .
Read in tandem, section 15610.57, subdivisions (a)(1) and (b)(2)
support a straightforward conclusion: whether a determination
that medical care should be provided is made by a health care
provider or not, it is the defendant’s relationship with an elder or
16
a dependent adult—not the defendant’s professional standing or
expertise—that makes the defendant potentially liable for
neglect.” (Winn, supra, 63 Cal.4th at p. 158.)
Thus, the Legislature had “enacted a scheme
distinguishing between—and decidedly not lumping together—
claims of professional negligence and neglect. [Citations.] The
Act seems premised on the idea that certain situations place
elders and dependent adults at heightened risk of harm, and
heightened remedies relative to conventional tort remedies are
appropriate as a consequence. [Citation.] Blurring the
distinction between neglect under the Act and conduct actionable
under ordinary tort remedies—even in the absence of a care or
custody relationship—risks undermining the Act’s central
premise. Accordingly, plaintiffs alleging professional negligence
may seek certain tort remedies, though not the heightened
remedies available under the Elder Abuse Act.” (Winn, supra, 63
Cal.4th at pp. 159–160.) The court explained that the “limited
availability of heightened remedies is indicative of a
determination that individuals responsible for attending to the
basic needs of elders and dependent adults that are unable to
care for themselves should be subject to greater liability where
those caretakers or custodians act with recklessness, oppression,
fraud, or malice. [Citation.]” (Id. at p. 160.) Accordingly, the
Supreme Court was persuaded “that the concept of neglect—
though broad enough to encompass settings beyond residential
care facilities—is not intended to apply to any conceivable
negligent conduct that might adversely impact an elder or
dependent adult.” (Ibid.)
Turning to the facts before it, the Supreme Court observed
that, “[b]eyond the assertion that defendants treated [the
17
decedent] at outpatient ‘clinics’ operated by defendants, plaintiffs
offer no other explanation for why defendants’ intermittent,
outpatient medical treatment forged a caretaking or custodial
relationship between [the decedent] and defendants. No
allegations in the complaint support an inference that [the
decedent] relied on defendants in any way distinct from an able-
bodied and fully competent adult’s reliance on the advice and
care of his or her medical providers. Accordingly, we hold that
defendants lacked the needed caretaking or custodial relationship
with the decedent.” (Winn, supra, 63 Cal.4th at p. 165.)
Only two published Court of Appeal decisions have
considered whether a caretaking or custodial relationship existed
under Winn. In Stewart v. Superior Court (2017) 16 Cal.App.5th
87 (Stewart), Division Two of the Fourth District held that the
lower court had erred in summarily adjudicating the elder abuse
cause of action. In Stewart, the decedent, who was 78 years old
and experiencing confusion, was admitted to St. Mary Medical
Center (St. Mary). (Id. at p. 91.) Evidence supported that the
decedent was “ ‘markedly somnolent’ and . . . ‘open[ed his] eyes
only transiently,’ ” “was not consuming adequate nutrition,” was
“ ‘a very poor historian[,] . . . only grunt[ed] and mumble[d] and
[was] unable to provide any intelligible history.’ ” (Id. at pp. 95–
96). He had named the plaintiff, Stewart, his durable power of
attorney for health care decisions. (Id. at p. 91.) Defendants and
real parties in interest planned to perform surgery and implant a
pacemaker in the decedent, but Stewart canceled the procedure
and requested a second opinion regarding the decedent’s need for
a pacemaker. (Ibid.) Several days later, defendants and real
parties in interest informed Stewart that a pacemaker procedure
was scheduled for the following day. (Id. at p. 92.) Stewart
18
stated that she would not consent to such a procedure and again
requested a second opinion. (Ibid.) The next day, defendants and
real parties in interest determined through St. Mary’s risk
management department that they could continue with the
procedure despite Stewart’s objection. (Ibid.) Several days later,
Stewart called to inquire about the decedent and learned that he
was scheduled for surgery. (Ibid.) Stewart objected again to the
procedure. (Ibid.) When she arrived at the hospital, Stewart
learned that the surgery was already underway. (Ibid.) The
decedent went into cardiac arrest that day and suffered brain
damage. (Ibid.) The court granted the defendants’ motion for
summary adjudication of the elder abuse claim, reasoning that
“ ‘[i]nterpreting the power of attorney then letting a . . . surgery
occur was not withholding care or not within custodial capacity.’ ”
(Id. at p. 99.)
In reversing, the reviewing court reasoned that “it appears
[the decedent] depended on St. Mary to meet his basic needs in
ways that establish the type of custodial relationship described
by the Winn court.” (Stewart, supra, 16 Cal.App.5th at p. 102.)
The court “note[d] [the decedent’s] admission to an acute care
facility such as St. Mary, standing alone, would have been
sufficient to make him a ‘dependent adult’ who would be entitled
to the Act’s protections even if he had not also qualified as an
‘elder’ by virtue of his age,” but also relied on the facts of the case
to support its conclusion. (Ibid.) The court observed that “[the
decedent] was experiencing confusion upon admission, and a
doctor’s note prepared a week after admission describes him as a
‘very poor historian’ who could not provide a coherent history and
tended only to mumble and grunt,” and that the record showed
19
that “at times [decedent] needed medical assistance, including a
G-tube, to consume adequate calories.” (Ibid.)
The court in Stewart rejected St. Mary’s request that it
“make a care and custody determination as to the specific
circumstances surrounding the ethics committee meeting instead
of as to the relationship between [the decedent] and St. Mary as a
whole.” (Stewart, supra, 16 Cal.App.5th at p. 102.) The court of
appeal found that “St. Mary accepted [the decedent] as a patient
with knowledge of his ‘confus[ed]’ state, which left him a ‘poor
historian,’ and its records show [the decedent] at times required
assistance with feeding. Moreover, the ethics committee
authorized the performance of surgery on [the decedent’s] behalf
on the assumption that he lacked the ability to consent.” (Id. at
p. 103.) Thus, in the court’s view, “St. Mary had accepted
responsibility for assisting [the decedent] with acts for which
‘[o]ne would not normally expect an able-bodied and fully
competent adult to depend on another.’ [Citation.]” (Ibid.) The
court of appeal further emphasized that it was “troubled that
labeling this case one for no more than professional negligence
seriously undervalues the interest [the decedent] had in
consenting or objecting to the surgery that, in the opinion of
Stewart’s experts, contributed to his death.” (Id. at p. 104.) “The
California Supreme Court has described the right to consent to
medical treatment as ‘ “basic and fundamental,” ’ ‘intensely
individual,’ and ‘broadly based.’ ” (Id. at p. 105.) The court
therefore had “difficulty concluding that the deprivation of a right
as important as personal autonomy . . . cannot amount to more
than professional negligence in the context of this case.” (Id. at
p. 106.)
20
More recently, the Third District applied the care or
custody requirement in Winn in Oroville Hospital v. Superior
Court (2022) 74 Cal.App.5th 382 (Oroville). In Oroville, the
decedent depended on her granddaughter for basic needs such as
dressing, eating, taking medications, using the restroom,
attending physician appointments, and diabetes management.
(Id. at pp. 388, 392.) The decedent was referred by her medical
provider for in-home nursing care for an injury to her left
ischium. (Id. at p. 389.) The defendants evaluated decedent and
began providing in-home nursing services. (Ibid.) On the sixth
visit to the decedent, the defendants documented that the wound
appeared to be infected. (Ibid.) Someone called 911, and
decedent was transferred to the emergency department at
Oroville Hospital. The decedent had developed sepsis. (Ibid.)
The decedent underwent an operation on her wound and was
eventually discharged home with a new order for home health
wound care. (Id. at p. 390.) The defendants resumed home
health services and the decedent’s wounds continued to worsen,
but the defendants did not transfer the decedent to the hospital.
(Id. at pp. 390–391.) Approximately a week after the defendants
resumed home services, the decedent’s family called 911 and the
decedent was taken to Oroville Hospital. (Id. at p. 391.) The
decedent underwent surgery, but never regained her health and
died several months later. (Ibid.)
The defendants moved for summary judgment of the elder
abuse claim on the ground that “they only provided in-home
wound care on six occasions in July 2015 and four occasions in
October 2015” and “[f]or all other aspects of her care, decedent
relied on [her granddaughter].” (Oroville, supra, 74 Cal.App.5th
at p. 392.) The defendants therefore argued that “the scope of
21
their care for decedent did not amount to a ‘robust’ and
‘substantial’ caretaking relationship of the type contemplated by
the Elder Abuse Act as explained in Winn.” (Ibid.) The court
denied the motion for summary judgment, stating only that
“ ‘triable issues of material fact exist as to whether Defendants
had a substantial caretaking or custodial relationship with
Decedent, whether the care and treatment Defendants provided
to Decedent was within the applicable standard of care, and
whether Defendants were a substantial factor in causing
Decedents death.’ ” (Id. at p. 397.) The defendants filed a
petition for a writ of mandate seeking relief from the court’s
denial of their motion for summary adjudication of the elder
abuse claim. (Ibid.)
The Third District granted the relief requested by
defendants. The court observed that “[i]t must be determined, on
a case-by-case basis, whether the specific responsibilities
assumed by a defendant were sufficient to give rise to a
substantial caretaking or custodial relationship” and concluded
that “defendants’ provision of wound care to decedent did not give
rise to the substantial caretaking or custodial relationship
required to establish neglect under the Elder Abuse Act.”
(Oroville, supra, 74 Cal.App.5th at p. 405.) The court explained
that “[w]ound care such as that at issue here is not a ‘basic need’
of the type an able-bodied and fully competent adult would
ordinarily be capable of managing on his or her own. Indeed,
plaintiffs themselves assert [decedent’s granddaughter],
presumably an able-bodied and fully competent adult, did not
have the training to properly attend to decedent’s wound care
needs . . . .” (Ibid.) Thus, “the relationship at issue here is not
the type of arrangement the Legislature was addressing in the
22
Elder Abuse Act.” (Id. at p. 406.) The court in Oroville further
relied on the Supreme Court’s statement that “the failure to
provide medical care ‘assumes that the defendant is in a position
to deprive an elder or a dependent adult of medical care’ ” and
noted that the evidence before it “demonstrates defendants were
providing medical care.” (Id. at p. 407.) Accordingly,
“defendants’ alleged failure to provide adequate care is relevant
to a professional negligence claim rather than a claim under the
Elder Abuse Act.” (Ibid.)
Considering the evidence presented at trial in its entirety
in light of these cases, we conclude that there is no substantial
evidence that the caretaking relationship between GAMC and
Kruthanooch was robust and ongoing, as required for the Act to
apply. Rather, the evidence demonstrates that the relationship
was of a limited duration and GAMC’s attention to Kruthanooch’s
basic needs was incidental to the circumscribed medical care it
provided.
There is no question that Kruthanooch was ill when he
presented at the emergency department. He reported weakness
and lightheadedness and his medical records state that
Kruthanooch’s lower extremity weakness rendered him
“essentially” unable to walk by that evening. While in the
hospital, Kruthanooch received IV fluids to treat his dehydration
and rhabdomyolysis, and he was transported to and from his MRI
scan by hospital employees. However, there is no substantial
evidence in the record supporting that Kruthanooch was
cognitively impaired. His medical records state that he was alert,
“oriented to person, place, time, and situation,” cooperative, and
pleasant. Further, the Estate did not elicit testimony at trial
concerning whether and the extent to which Kruthanooch’s
23
diagnoses rendered him unable to attend to his basic needs.
There is no substantial evidence that, at the time he presented at
GAMC, Kruthanooch sought or required ongoing assistance with
eating, drinking, toileting, or any other basic needs. Rather,
Kruthanooch’s son Daniel testified that, prior to his burn injury,
Kruthanooch was “very independent” and “did everything
himself”, and his son Sam similarly testified that Kruthanooch
“did everything on his own.”
At the time that Kruthanooch was injured, he had been at
GAMC’s facility between two and three hours. Kruthanooch was
discharged on July 28, only two days after he presented for care.
As the Supreme Court explained in Winn, the Act does not
apply unless the caretaking relationship is “robust” and the
measure of responsibility assumed by the caretaker is
“significant.” (Winn, supra, 63 Cal.4th at p. 158.) Winn
established that the “substantial relationship” must involve
“ongoing responsibility for one or more basic needs[] with the
elder patient,” that “a party with only circumscribed,
intermittent, or episodic engagement” is not among those who
has care or custody of a vulnerable person,” and “that the
distinctive relationship contemplated by the Act entails more
than casual or limited interactions.” (Id. at pp. 152, 158, italics
added.) Whether we look at the parties’ relationship at the time
of the alleged neglect prior to the MRI scan or at Kruthanooch’s
hospital stay in its entirety, substantial evidence fails to support
that the relationship was robust or that GAMC assumed ongoing
responsibility for Kruthanooch’s basic needs.
The circumstances present here are plainly distinguishable
from those present in cases in which a robust caretaking or
custodial role was found to be present. In Winn, the Supreme
24
Court concluded that two of its past decisions interpreting the
Act comported with the care and custody requirement because
the defendants in both cases had “explicitly assumed
responsibility for attending to the elders’ most basic needs.”
(Winn, supra, 63 Cal.4th at pp. 160–161, citing Delaney v. Baker
(1999) 20 Cal.4th 23, 27 (Delaney) and Covenant Care, Inc. v.
Superior Court (2004) 32 Cal.4th 771, 778 (Covenant Care).)
Both cases involved skilled nursing homes that, over the course of
weeks and months, failed to attend to the elders’ basic needs,
including hygiene and “nutrition, hydration, and medication.”
(See Delaney, at p. 41; Covenant Care, at pp. 777–778.) Although
“[a]n individual might assume the responsibility for attending to
an elder’s basic needs in a variety of contexts and locations,
including beyond the confines of a residential care facility” (Winn,
at p. 158), we find no substantial evidence of an explicit
assumption of ongoing caretaking responsibilities under the
circumstances present here. Moreover, the duration of time in
which the decedents in Delaney and Covenant Care were within
the care of the defendants underscores that, unlike here, the
relationship between the parties was not of a circumscribed or
limited duration.
Stewart, supra, 16 Cal.App.5th 87, like this case, involved
an acute care facility’s treatment of an elder. However, unlike
here, the decedent had been in the hospital’s care for three weeks
when it performed surgery without the approval of the decedent’s
designee. (Id. at pp. 91–92.) The hospital was also aware from
the outset that it was accepting a patient who “ ‘[c]learly’ could
not make decisions on his own,” and “authorized the performance
of surgery on [the decedent’s] behalf on the assumption that he
lacked the ability to consent.” (Id. at pp. 96, 103.) Further,
25
because the case involved the decedent’s right to make decisions
concerning his own treatment, the court of appeal was reluctant
to label the defendant’s misconduct as mere professional
negligence. (Id. at p. 104.) While perhaps not a basic need of an
able-bodied adult, personal autonomy is a “ ‘ “basic and
fundamental” ’ ” right. (Id. at p. 105.)
As discussed above, substantial evidence does not support
that Kruthanooch was cognitively impaired or incapable of
expressing his wishes. Further, there is no evidence in the trial
record that GAMC assumed responsibility for making medical
decisions without Kruthanooch’s consent, or otherwise usurped
any of Kruthanooch’s fundamental rights in a manner that
blurred the line between health care provider and caretaker or
custodian.
The parties dispute whether the evidence supports that
Kruthanooch was an inpatient at the time he sustained the
injury in the MRI machine. The Act provides that admission to
an acute care facility, standing alone, is sufficient to bring an
adult patient within the statutory definition of a “dependent
adult,” and thus at least hypothetically entitled to the Act’s
protections. (See Stewart, supra, 16 Cal.App.5th at p. 102, citing
§ 15610.23, subd. (b) and Health & Saf. Code, § 1250, subd. (a).)
The evidence is, at best, unclear as to when Kruthanooch was
admitted.4 For the sake of argument, we will assume that there
4The emergency department records state that admitting orders were
requested at 6:48 p.m., after the MRI scan, and Dr. Gibbs’ note stating
that Kruthanooch “will require admission” was signed at 7:21 p.m. In
arguing that Kruthanooch was admitted prior to the MRI scan, the
Estate relies in part on testimony from GAMC’s expert witness, Dr.
Dubrow, in which he agreed that Kruthanooch “was in such poor
health that he was admitted to the hospital as an inpatient through
26
is substantial evidence to support that Kruthanooch had been
admitted to the telemetry unit at the time the MRI scan took
place.
We are not persuaded that a hospital necessarily assumes a
robust caretaking or custodial relationship and ongoing
responsibility for the basic needs of every person admitted. In
Winn, the Supreme Court rejected the argument that where a
defendant fits within the definition of “care custodian” under
section 15610.17, the defendant “will, as a matter of law, always
satisfy the particular caretaking or custodial relationship
required to show neglect under section 15610.57.” (Winn, supra,
63 Cal.4th at p. 164.) Rather, “the statute requires a separate
analysis to determine whether such a relationship exists.” (Ibid.)
Thus, even where statutory definitions of “dependent adult” or
“care custodian” are satisfied, “[i]t must be determined, on a case-
by-case basis, whether the specific responsibilities assumed by a
defendant were sufficient to give rise to a substantial caretaking
or custodial relationship.” (Oroville, supra, 74 Cal.App.5th at
p. 405.)
the emergency room.” Standing alone, we are not persuaded that his
testimony is “credible, and of solid value,” as Dr. Dubrow had no
involvement in Kruthanooch’s care. (Nolte Sheet Metal, Inc. v.
Occupational Safety & Health Appeals Bd., supra, 44 Cal.App.5th at
p. 442.) The Estate also relies upon testimony from Ulrich in which
she stated that Kruthanooch was assigned to the telemetry unit at
some point during his stay and that she understood that Kruthanooch
was an inpatient. It is unclear whether she was referring to the time
period before the MRI scan took place. Finally, the Estate points to
Kruthanooch’s emergency department reports, which state “Enc Type
Inpatient.” This particular note is not accompanied by any time
stamp.
27
The Estate contends that a robust custodial relationship
required by Winn existed here because Kruthanooch received
assistance with hydration and mobility while in the hospital. For
its part, GAMC argues that the IV hydration he received was
part of his treatment for rhabdomyolysis and that there is no
evidence in the record that Kruthanooch was incapable of
drinking on his own. Both contentions appear to be true.
Nevertheless, substantial evidence presented at trial supports
that, at one point or another, GAMC assisted with Kruthanooch’s
mobility and hydration, both of which may fairly be characterized
as “basic needs that an able-bodied and fully competent adult
would ordinarily be capable of managing without assistance.”
(Winn, supra, 63 Cal.4th at p. 158).5
However, Winn does not state that the protections and
heightened remedies available under the Act are available to any
inpatient who receives assistance, however briefly, with one or
more basic needs. This would result in a “lumping together” of
professional negligence and neglect claims, contrary to the
Supreme Court’s pronouncement that the Act was intended to
distinguish between such claims.6 (Winn, supra, 63 Cal.4th at
5 The Estate also argues that GAMC assumed responsibility to provide
food to the decedent. Neither the trial exhibit nor testimony cited by
the Estate makes any mention of food or feeding. The Estate does not
cite, nor are we aware of, any evidence that Kruthanooch was
incapable of feeding himself.
6As an example, one can imagine an able-bodied and cognitively
unimpaired young woman who sustains a back injury while hiking on
a hot day. Because the injury renders her unable to walk without
difficulty and she is weak from dehydration, she presents at an acute
care facility for treatment and is admitted. As noted above, her
admission to such a facility alone is sufficient to render her a
28
p. 159.) As discussed, the Supreme Court rejected the assertion
that “circumscribed engagement” and “limited interactions” are
sufficient to establish the caretaking relationship required under
the law. (Id. at p. 158.) Thus, GAMC’s assistance with these
needs on a limited basis during its provision of medical treatment
to Kruthanooch is not substantial evidence of the custodial or
caretaking relationship required by Winn.
Finally, the Estate argues that GAMC assumed
responsibility for Kruthanooch’s basic need of “protection from
health and safety hazards.” The Estate asserts that, “[a]t the
time of the injury itself, Mr. Kruthanooch was confined inside an
MRI tube and completely reliant on the staff of GAMC.” GAMC’s
failure to protect Kruthanooch from his MRI injury does not
bolster the argument that a robust caretaking relationship
existed between GAMC and Kruthanooch. Every patient who
undergoes an MRI scan, no matter their age or cognitive and
physical abilities, is reliant upon the MRI technologist to ensure
that the scan is conducted in a safe manner. Just as “[w]ound
care . . . is not a ‘basic need’ of the type an able-bodied and fully
competent adult would ordinarily be capable of managing on his
“dependent adult” under section 15610.23, subdivision (b). This
woman might, like Kruthanooch, receive IV hydration, be transported
for an MRI scan via a gurney, and sustain a burn wound from the MRI
because the technologist did not properly screen her for electrically
conductive materials. If an acute care facility’s temporary assistance
with hydration and mobility is sufficient to establish the requisite
caretaking or custodial relationship, there is no reason why this
woman could not also recover under the Act, even though she is not
“particularly vulnerable and reliant” and thus is not in the class of
people that the Act was intended to protect. (Winn, supra, 63 Cal.4th
at p. 160.)
29
or her own,” screening for ferromagnetic and electrically
conductive materials before undergoing an MRI scan “require[s]
competent professional . . . attention.” (Oroville, supra, 74
Cal.App.5th at p. 405.)
In sum, we hold that the evidence in this case, viewed in its
totality, does not permit the conclusion that a robust and
substantial caretaking or custodial relationship with ongoing
responsibilities existed between GAMC and Kruthanooch. (Winn,
supra, 63 Cal.4th at pp. 152, 158.) We do not suggest that such a
relationship can never exist when an elder or dependent adult is
an inpatient for only two days, or that, when an elder or
dependent adult presents at such a facility seeking only medical
care, the nature of the relationship between the parties cannot
change. The condition of a patient can deteriorate, and the
patient-provider relationship can expand into one in which the
healthcare provider attends to the patient’s most basic needs for
an uncircumscribed length of time. We merely conclude that
substantial evidence does not support that the relationship
between Kruthanooch and GAMC was at any point anything
more than that of a patient and healthcare provider.
3.2. There is no substantial evidence that GAMC’s
conduct constituted neglect under the Act.
Substantial evidence also fails to support that the conduct
at issue in this action—GAMC’s failure to properly screen
Kruthanooch prior to his MRI scan—falls within the definition of
neglect under the Act. Thus, we agree with the court’s conclusion
on this issue.
We begin by examining the Supreme Court’s decisions
distinguishing between neglect under the Act and professional
negligence. In Delaney, the court construed two provisions of the
30
Act: section 15657, which grants enhanced remedies for reckless
neglect, and section 15657.2, which limits recovery for actions
grounded in professional negligence, and concluded that reckless
neglect is separate from professional negligence and thus the
restrictions on remedies against health care providers for
professional negligence do not apply. (Delaney, supra, 20 Cal.4th
at pp. 28–29.)
Our high court adopted the view that the phrase “based on
professional negligence” should be read to mean that “reckless
neglect” under section 15657 is distinct from causes of action
“based on professional negligence” within the meaning of section
15657.2. (Delaney, supra, 20 Cal.4th at pp. 30–31.) The court
explained that the “explicit exclusion of ‘professional negligence’
. . . [citation], make[s] clear the [Act’s] goal was to provide
heightened remedies for . . . ‘acts of egregious abuse’ against elder
and dependent adults [citation], while allowing acts of negligence
in the rendition of medical services to elder and dependent adults
to be governed by laws specifically applicable to such negligence.”
(Id. at p. 35.)
In Covenant Care, supra, 32 Cal.4th 771, the Supreme
Court considered “whether the procedural prerequisites to
seeking punitive damages in an action for damages arising out of
the professional negligence of a health care provider . . .
[citation], apply to punitive damage claims in actions alleging
elder abuse” and concluded they did not. (Id. at p. 776.)
The Supreme Court observed that “[i]n its ordinary sense,
‘professional negligence’ is failure to exercise ‘ “knowledge, skill,
and care ordinarily employed by members of the profession in
good standing.” ’ [Citation.] Hence, such misconduct as plaintiffs
alleged—intentional, egregious elder abuse—cannot be described
31
as mere ‘professional negligence’ in the ordinary sense of those
words.” (Covenant Care, supra, 32 Cal.4th at pp. 781–782.) The
Supreme Court explained that, “[a]s used in the Act, neglect
refers not to the substandard performance of medical services
but, rather, to the ‘failure of those responsible for attending to
the basic needs and comforts of elderly or dependent adults,
regardless of their professional standing, to carry out their
custodial obligations.’ [Citation.] Thus, the statutory definition
of ‘neglect’ speaks not of the undertaking of medical services, but
of the failure to provide medical care.” (Id. at p. 783.)
Our high court rejected defendants’ argument that “elder
abuse, when committed by a health care provider, is ‘an injury
that is directly related to the professional services provided by a
health care provider acting in its capacity as such.’ ” (Covenant
Care, supra, 32 Cal.4th at pp. 785–786.) The court explained that
“elder abuse as defined in the Act, even when committed by a
health care provider, is not an injury that is ‘directly related’ to
the provider’s professional services. . . . [¶] [C]laims under the
Elder Abuse Act are not brought against health care providers in
their capacity as providers but, rather, against custodians and
caregivers that abuse elders and that may or may not,
incidentally, also be health care providers. . . . ‘[T]he fact that
some health care institutions, such as nursing homes, perform
custodial functions and provide professional medical care’
[citation] does not mean the two functions are the same.” (Id. at
p. 786.)
In Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, Division One of the Fourth District distilled
from the Act and case law, including Delaney and Covenant Care,
“several factors that must be present for conduct to constitute
32
neglect within the meaning of the Elder Abuse Act.” (Id. at
p. 406.) These requirements include that the plaintiff must
allege, and ultimately prove by clear and convincing evidence,
that the defendant “denied or withheld goods or services
necessary to meet the elder or dependent adult’s basic needs, . . .
with conscious disregard of the high probability of such injury (if
the plaintiff alleges recklessness).” (Id. at pp. 406–407.) The
court concluded that the plaintiffs had failed to adequately allege
elder abuse where they “allege[d] that [the decedent] died
because the Hospital did not administer the antibiotics [the
decedent] needed to treat his pneumonia and did not have the
proper size endotracheal tube in the crash cart.” (Id. at p. 408.)
The court observed that “[t]hese allegations indicate the Hospital
did not deny services to or withhold treatment from [the
decedent]—on the contrary, the staff actively undertook to
provide treatment intended to save his life.” (Ibid.)
Applying these principles here, we conclude that
substantial evidence fails to support that GAMC committed
neglect under the Act. There is no substantial evidence that
GAMC harmed Kruthanooch by “fail[ing] to provide medical care”
or by failing to “attend[] to [his] basics needs and comforts.”
(Covenant Care, supra, 32 Cal.4th at p. 783.) Rather, the
evidence presented at trial supports that GAMC harmed
Kruthanooch when undertaking medical services.
The Estate argues that GAMC’s failure to properly screen
Kruthanooch before conducting the MRI scan constituted a
“[f]ailure to protect from health and safety hazards” under the
Act. (§ 15610.57, subd. (b)(3).) The Estate cannot evade the
limitations set forth in Covenant Care simply by characterizing a
claim based on the undertaking of medical services as a failure to
33
protect a patient from health or safety hazards. We have no
reason to believe the Supreme Court did not consider all the
statutory examples of neglect in the Act, including that on which
the Estate relies, before concluding that neglect refers to a failure
to provide medical care. Moreover, most, if not all, acts of
professional negligence are susceptible to characterization as a
failure to protect. For example, a surgeon who does not remove
an instrument from the patient’s body before closing the patient
up has failed to protect the patient from infection and injury, and
a doctor who prescribes the wrong medication or dosage fails to
protect the patient from the medication’s adverse effects. We
doubt the Supreme Court would have repeatedly emphasized the
distinction between the neglect of an elder under the Act and
professional negligence if the two causes of action could so easily
be “lump[ed] together.” (Winn, supra, 63 Cal.4th at p. 159.)
The Estate further argues that Delaney supports its
argument “that evidence of professional negligence may go
towards showing neglect under Section 15610.57, and may thus
meet one element establishing reckless neglect under Section
15657, when taken together with Plaintiff’s evidence showing
such things as care and custody and recklessness.” (Italics
omitted.) As a preliminary matter, substantial evidence does not
support the conclusion that Kruthanooch was in GAMC’s care
and custody in this case. Furthermore, Delaney does not support
that professional negligence can always form the basis of a claim
under section 15657.
In the portion of Delaney the Estate cites, the Supreme
Court rejected the defendants’ argument that malnutrition was
the result of professional negligence (i.e., “the inability of nursing
staff to prescribe or execute a plan of furnishing sufficient
34
nutrition to someone too infirm to attend to that need herself”),
rather than neglect, and concluded that “such omission is also
unquestionably ‘neglect,’ as that term is defined in former section
15610.57.” (Delaney, supra, 20 Cal.4th at pp. 34–35.) By the
defendants’ own characterization, the purported professional
negligence in Delaney was the failure or “inability” of the
defendants’ staff to act. Further, allowing a patient to suffer
malnutrition is a failure to tend to a basic need (i.e., adequate
nutrition). As explained above, an MRI scan is not a basic need.
Thus, we find nothing in Delaney to support that a defendant’s
conduct can be reframed as neglect under the Act where, as here,
substantial evidence fails to support that the claimed neglect was
based on “the failure to provide medical care” (Covenant Care,
supra, 32 Cal.4th at p. 783), or that the defendant “denied or
withheld goods or services necessary to meet the elder or
dependent adult’s basic needs.” (Carter v. Prime Healthcare
Paradise Valley LLC, supra, 198 Cal.App.4th at pp. 406–407).
Finally, we reject as baseless the Estate’s contention that,
“[i]n a hospital case, the definition of neglect under that
subsection requires evidence of professional negligence (i.e.,
‘negligent failure’).” As with any person or entity in a caretaking
or custodial role, a hospital acting as a custodian may negligently
fail to provide a patient with adequate hydration or nutrition, fail
to tend to the patient’s hygiene, or fail to provide medical care.
(§ 15610.57, subd. (b)(1), (2), (4).) Such negligent failures are
consistent with the definition of neglect under the Act and the
Supreme Court’s decisions and are not based on the negligent
undertaking of medical care.
35
3.3. We decline to reach the remaining grounds on
which the court granted JNOV and the issues
raised in the cross-appeal.
Having concluded that substantial evidence does not
support that there was a robust caretaking or custodial
relationship between Kruthanooch and GAMC, or that GAMC’s
failure to properly screen Kruthanooch prior to the MRI scan was
neglect as contemplated by the Act, it is unnecessary for us to
address whether GAMC acted recklessly. It is also unnecessary
for us to address the issues raised in GAMC’s protective cross-
appeal.
36
DISPOSITION
The judgment is affirmed. GAMC shall recover its costs on
appeal.
CERTIFIED FOR PUBLICATION
LAVIN, J.
WE CONCUR:
EDMON, P. J.
ADAMS, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
37