Worsham v. O'Connor Hospital CA6

Filed 4/23/14 Worsham v. O’Connor Hospital CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

GREGORY WORSHAM, H037749 & H037838 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. CV197683)

v.

O'CONNOR HOSPITAL ET AL.,

Defendant and Respondent.

Appellant Gregory Worsham1 has two appeals pending in this court. They both arise from the same case in the Santa Clara County Superior Court. In the underlying case, Worsham alleged negligence and elder abuse against two separate defendants, O’Connor Hospital, Inc. (O’Connor) and Daughters of Charity Health System, Inc. (Daughters of Charity). The court sustained O’Connor’s and Daughters of Charity Health System, Inc.’s demurrer to Worsham’s elder abuse claim in his second amended complaint without leave to amend. Following this ruling, Worsham dismissed his negligence cause of action, and judgment was entered in favor of O’Connor and Daughters of Charity.

1 The original plaintiff in this case was Juanita Worsham, who passed away on April 6, 2012, after the filing of the notice of appeal. This court permitted her son, Gregory Worsham to substitute in as plaintiff/appellant.

Worsham now appeals the court’s ruling sustaining the demurrer to the elder abuse cause of action without leave to amend. Despite filing an appeal as to defendant Daughters of Charity Health System, Inc., Worsham states in his opening brief that he only challenges the trial court’s rulings as it pertains to O’Connor. We deem Worsham’s statement as a request for dismissal of the appeal as to defendant Daughters of Charity and will dismiss the appeal accordingly. With regard to defendant O’Connor, Worsham asserts the trial court abused its discretion in sustaining the demurrer to the elder abuse claim without leave to amend. STATEMENT OF THE FACTS AND CASE Juanita Worsham entered O’Connor Hospital on July 31, 2010 to undergo hip surgery to treat a fractured hip she suffered as a result of falling in her home. Following surgery, Ms. Worsham was discharged to O’Connor Hospital’s “Transitional Care Unit” for rehabilitative care. On August 20, 2010, Ms. Worsham suffered a fall at the Transitional Care Unit. As a result of the fall, Ms. Worsham broke her right arm and re-broke her hip. Ms. Worsham filed her original complaint on March 30, 2011, and her first amended complaint on April 18, 2011 alleging violation of the Elder Abuse Act (Wel. & Inst. Code, §§ 15600, et seq.), and professional negligence. The basis of Ms. Worsham’s claim was that O’Connor’s Transitional Care Unit was understaffed and undertrained, and that the lack of sufficient well-trained staff caused Ms. Worsham’s fall. O’Connor demurred to the first amended complaint and the court sustained the demurrer on the ground that Ms. Worsham failed to plead sufficient facts regarding O’Connor’s understaffing and under-training. Ms. Worsham filed her second amended complaint on July 15, 2011 to which O’Connor also demurred. The hearing for the demurrer was set for September 15, 2011. The court issued a tentative ruling prior to the hearing that stated: “Because we test for