Lowery v. Kindren Healthcare Operating, Inc.

Filed 5/18/20 (opinion on rehearing) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DIANE LOWERY, as Successor, etc., Plaintiff and Appellant, A153421 v. KINDRED HEALTHCARE (Contra Costa County OPERATING, INC., et al., Super. Ct. No. C1402354) Defendants and Respondents.

Ruth Goros filed this action shortly before her death alleging, among other things, that defendants Kindred Healthcare Operating, Inc. and Care Center of Rossmoor, LLC violated the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) by failing to timely obtain medical treatment for her after she suffered a stroke while a patient at their nursing home. After Ms. Goros’s death, her daughter plaintiff Diane Lowery substituted in as successor in interest and amended the complaint to add a cause of action for wrongful death. Thereafter defendants obtained summary judgment, predicated on the trial court’s exclusion of the opinion of plaintiff’s expert on the issue of causation. We conclude that the court properly sustained the objections to the expert’s opinion and shall affirm the judgment. 1

1 Plaintiff’s notice of appeal purports to appeal the order granting summary judgment, which is not an appealable order, so that plaintiff’s notice is premature. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.)

1

Background Plaintiff’s second amended complaint alleges causes of action for elder abuse, willful misconduct, fraud, battery and wrongful death. Defendants moved for summary judgment on the ground that each cause of action was without merit. On appeal, plaintiff challenges only the court’s ruling with respect to the causes of action for elder abuse and wrongful death. Accordingly, we focus on the allegations of the complaint relating to those two causes of action. On December 26, 2012, plaintiff’s then 92-year-old mother was admitted as a patient at a nursing home operated by defendants and that at an unascertained time on January 2 or 3, Ms. Goros suffered an ischemic stroke. The complaint alleges that defendants “failed to recognize, respond, notify a physician and get Ms. Goros to an acute care hospital for treatment” for the stroke. Moreover, defendants allegedly “attempted to prevent family members from discovering the medical condition of Ms. Goros” and “prevented family members from obtaining emergency acute care treatment for Ms. Goros.” Defendants’ actions and failures to act allegedly caused “Ms. Goros to suffer permanent and irreversible brain damage” which ultimately caused her death approximately two years later. Defendants moved for summary judgment on the ground, among others, that plaintiff could not establish causation. With respect to the elder abuse claim, defendants argued that plaintiff could not show that defendants’ conduct caused the stroke or that any delay in obtaining treatment affected the outcome of Ms. Goros’s medical condition. With respect to the cause of