Pagarigan v. Greater Valley Med. Group
Filed 8/23/06 Pagarigan v. Greater Valley Med. Group CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
| TERI PAGARIGAN et al., Plaintiffs and Appellants, v. GREATER VALLEY MEDICAL GROUP, INC. et al., Defendants and Respondents. | B172642 (Los Angeles County Super. Ct. No. PC 027083) |
APPEAL from a judgment of the Superior Court of Los Angeles County. John P. Farrell, Judge. Affirmed in part and reversed in part.
Houck & Balisok, Russell S. Balisok, Steven C. Wilheim and Patricia L. Canner; Law Office of Carol S. Jimenez and Carol S. Jimenez for Plaintiffs and Appellants Teri Pagarigan, Mary Pagarigan, and John Pagarigan.
Law Offices of David J. Weiss, David J. Weiss, Mark J. Habeeb; Greines, Martin, Stein & Richland, Robin Meadow and Barbara W. Ravitz for Defendant and Respondent Greater Valley Management Services Organization, Inc.
Horvitz & Levy, Julie L. Woods and Robert H. Wright; Pivo, Halbreich, Martin, Wilson & Amo, Kenneth R. Pivo and Myra A. Firth for Defendants and Respondents Greater Valley Medical Group, Inc., Greater Valley Physicians Association, Inc., and Christopher Buttelman, M.D.
Beach Whitman, Thomas E. Beach and Sean D. Cowdrey for Defendants and Respondents LibbyCare Center, Inc., and Longwood Management Corporation.
Plaintiffs, who are the heirs and successors-in-interest of decedent Johnnie Pagarigan (decedent), appeal from the sustaining of demurrers without leave to amend to their various complaints in this elder abuse action against Greater Valley Medical Services Organization, Inc. (GVMSO), Greater Valley Medical Group, Inc. (GVMed), Greater Valley Physicians Association, Inc. (GVPhys) and Christopher Buttelman, M.D. (Buttelman) (GVMed, GVPhys, and Buttelman are collectively referred to as GVButtelman),[1] LibbyCare Center, Inc., and Longwood Management Corporation (collectively LibbyCare-Longwood). Plaintiffs alleged that while at a facility operated by LibbyCare, decedent developed pressure sores and infection at a gastric tube insertion site, and that treatment at an acute care facility was delayed until decedent's condition was untreatable, and she died. In their first, second, and third amended complaints, plaintiffs alleged multiple causes of action based upon the medical care given to decedent. Plaintiffs contended the agreements between Aetna U.S. Healthcare of California, Inc. (Aetna) and GVMSO, GVButtelman, and LibbyCare-Longwood to provide custodial health care to Aetna enrollees were based upon improper economic incentives that foreseeably resulted in the denial of proper care to decedent. We conclude that the amended complaint adequately alleged claims for negligence against LibbyCare-Longwood, and could be amended to allege additional claims against those parties as actual custodian of decedent at the time the harms alleged occurred, and therefore reverse the judgment as to those claims. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 23, 2000, decedent was admitted as a patient to facilities (Magnolia Gardens) run by LibbyCare-Longwood[2] pursuant to an agreement between Aetna and Greater Valley on the one hand and LibbyCare-Longwood on the other to provide long-term care to decedent. While at Magnolia Gardens, decedent developed a severe pressure ulcer on her lower back measuring five inches by eight inches. In addition, decedent was being fed through a gastric tube and developed a severe infection at the site of the gastric tube insertion, an infection so severe that her abdomen was distended and darkened. Plaintiffs alleged that decedent was not transferred to an acute care facility to treat her infection and bedsore until it was too late, and decedent was sent to hospice care to die. During the time decedent was at Magnolia Gardens, plaintiffs contended the severity and nature of decedent's condition was concealed from plaintiffs.
A. The Complaint.
On February 26, 2001,[3] plaintiffs, who are decedent's heirs and successors-in-interest, filed their complaint against Aetna, GVMSO, GVButtelman, and LibbyCare-Longwood, alleging 10 causes of action for negligence and willful misconduct (as one cause of action), intentional infliction of emotional distress, elder abuse, tort per se (Penal Code, section 368 and Welfare and Institutions Code section 15656), constructive fraud, fraud (concealment), three claims for fraud (promissory and misrepresentation), and wrongful death.[4] All claims but the claim for wrongful death were asserted on decedent's behalf by plaintiffs. Plaintiffs sought general damages (on all claims except the negligence and wrongful death claims), special damages, punitive damages, treble damages under Civil Code section 3345, and remedies under the Elder Abuse Act.
Plaintiffs' theory of the case was that the â€
