Gutierrez et al v. Santa Rosa Memorial Hospital et al

Filing 55

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO AMEND THE COMPLAINT 48 . (Illston, Susan) (Filed on 6/27/2017)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

CYNTHIA GUTIERREZ, et al.,
Plaintiffs,

9
10

United States District Court
Northern District of California

11
12

Case No. 16-cv-02645-SI

v.
SANTA ROSA MEMORIAL HOSPITAL, et
al.,
Defendants.

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION TO AMEND THE
COMPLAINT
Re: Dkt. No. 48

13
14

Plaintiffs’ motion for leave to amend the complaint is scheduled for a hearing on July 3,

15
2017. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for
16
resolution without oral argument and VACATES the hearing. For the reasons set forth below, the
17

Court GRANTS IN PART and DENIES IN PART plaintiffs’ motion. Plaintiffs shall file and

18
serve the amended complaint no later than July 3, 2017.
19
20
DISCUSSION
21
Plaintiffs seek to amend the complaint to add four new defendants: Dr. Elliot Brandwene,
22
Dr. Stewart Lauterbach, TeamHealth, and Chase Dennis Emergency Medical Group, Inc.
23

(“Chase”). Plaintiffs state that these physicians treated plaintiff Cynthia Gutierrez in the

24
emergency room, and that TeamHealth and Chase had contracts with defendants to supply the
25
physicians to the hospital.
26

Defendants do not oppose the addition of new defendants, and

accordingly the Court GRANTS this aspect of plaintiffs’ motion.

27
Plaintiffs also seek to amend the complaint to add new causes of action for reckless neglect
28

and fraud. Plaintiffs assert that discovery has revealed that medical staff repeatedly administered

2

Dilaudid, a synthetic heroin, to Cynthia Gutierrez despite documentation that Cynthia had had

3

adverse reactions to that medication.

4

defendants’ administration of Dilaudid to Cynthia. The proposed fraud claim is based upon a

5

medical record produced by Dr. Lauterbach at his deposition. That record, which the parties

6

referred to as “the addendum,” states that after Cynthia was intubated “a large piece of food was

7

aspirated from the ET tube.” Schoel Decl. Ex. F (Dkt. No. 50-10). Plaintiffs assert that the

8

addendum “is clearly a false and fraudulent record . . . designed to mislead and hide the truth of

9

highly culpable misconduct that the Defendants repeatedly administered Dilaudid . . . simply to

10

mask her pain and so they could discharge her without stabilizing her condition . . . .” Reply at 2

11
United States District Court
Northern District of California

1

(Dkt. No. 53).

12

plaintiffs until the day of the deposition.

The proposed reckless neglect claim is based upon

Plaintiffs also claim that the addendum was “intentionally concealed” from

13

Defendants oppose the addition of new claims on numerous grounds. Defendants argue

14

that reckless neglect is not an independent cause of action in California, but rather that it is an

15

element of the Elder Abuse and Dependent Adult Civil Protection Act, Cal. Welf. & Inst. Code

16

§ 15657. Defendants note that this Court has held that plaintiffs cannot state a claim under the

17

Elder Abuse and Dependent Adult Civil Protection Act because Cynthia Gutierrez is not a

18

“dependent adult” under the statute, and they argue that plaintiffs’ proposed amendment “is an

19

attempted end run” around the Court’s previous decision. Plaintiffs’ reply brief does not respond

20

to this argument. Instead, plaintiffs simply assert that it was reckless for defendants to administer

21

Dilaudid to Cynthia.

22

Defendants also contend that Court should deny leave to amend as to the proposed fraud

23

claim. Defendants argue that plaintiffs’ claims that the addendum was falsified and intentionally

24

concealed are baseless, and defendants note that there are numerous references in the medical

25

records − apart from the addendum − regarding Cynthia inhaling food and vomit. Defendants

26

contend that to the extent the fraud claim is based on the alleged falsification and concealment of

27

the addendum, the claim is futile.

28

regarding the administration of Dilaudid in the proposed fraud claim, and defendants assert that

Defendants also note that plaintiffs include allegations

2

1

plaintiffs can pursue that issue in the context of the negligence claim.
“[A] district court need not grant leave to amend where the amendment: (1) prejudices the

3

opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is

4

futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). The

5

Court concludes that the proposed amendment is futile. The Court agrees with defendants that

6

“reckless neglect” is an element of a claim under the Elder Abuse and Dependent Adult Civil

7

Protection Act, Cal. Welf. & Inst. Code § 15657, and it is not a standalone cause of action. See

8

generally Delaney v. Baker, 20 Cal. 4th 23 (1999) (distinguishing “reckless neglect” under the

9

Elder Abuse and Dependent Adult Civil Protection Act from claims for professional negligence).

10

The Court has already determined that plaintiffs cannot state a claim under that statute, and

11
United States District Court
Northern District of California

2

therefore DENIES plaintiff leave to amend to assert a “reckless neglect” claim. Further, as

12

defendants note, plaintiffs may pursue their allegations regarding the administration of Dilaudid

13

through their negligence claim.

14

The Court also finds that the proposed fraud claim is futile. Under California law, the

15

essential elements of fraud are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to

16

induce reliance; (4) justifiable reliance; and (5) resulting damage. City of Industry v. City of

17

Fillmore, 198 Cal. App. 4th 191, 211 (2011).

18

falsification or concealment of the addendum constitutes fraud. Plaintiff do not allege how the

19

creation of a false medical record, and the concealment of that record, was intended to induce

20

reliance, nor do plaintiffs explain how they relied on the allegedly concealed and false medical

21

record to their detriment. Accordingly, the Court DENIES plaintiffs leave to amend to add a fraud

22

claim.1

Plaintiffs do not explain how the alleged

23
24
25
26
27
1

28

However, the addendum (and the circumstances under which it was created) may be
relevant to plaintiffs’ other claims.
3

CONCLUSION

1
2

For the foregoing reasons, the Court GRANTS plaintiffs leave to amend the complaint to

3

add additional defendants and DENIES leave to amend to add additional claims. Plaintiffs shall

4

file and serve the amended complaint no later than July 3, 2017.

5
6

IT IS SO ORDERED.

7
8
9

Dated: June 27, 2017

______________________________________
SUSAN ILLSTON
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4