Plank v. Mount
Filed 9/18/12 Plank v. Mount CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
RAMONA PLANK,
Plaintiff and Appellant,
v.
TANYA LUNA MOUNT et al.,
Defendants and
Respondents.
E053769
(Super.Ct.No. CIVRS804099)
OPINION
APPEAL from
the Superior Court
of San
Bernardino County.
Barry L. Plotkin, Judge.
Affirmed.
Jeff Grotke
for Plaintiff and Appellant.
Leah
Saffian for Defendants and Respondents.
“Happy
families are all alike; every unhappy family is unhappy in its own way.” (Leo Tolstoy (1828-1910),
Ramona
Plank filed an action under Welfare and Institutions Code section 15657, for
damages for elder neglect and financial
abuse. Her father, George Mount,
died of undiagnosed end stage metastatic lung cancer at the age of 88, while
being cared for by his daughter (and Ramona’s sister), defendant Tanya Mount,
aided by Tanya’s son, codefendant Joaquin Renteria. Specifically, plaintiff asserted that Tanya’s
failure to obtain hospice care for Mr. Mount early enough to provide palliative
care and prevent dehydration and malnutrition caused Mr. Mount harm. After a bench trial, the court concluded that
Mr. Mount was capable of refusing medical treatment, and that his malnutrition and
dehydration were not caused by any lack of care by defendants. Plaintiff appealed.
On appeal,
plaintiff asserts that there is insufficient evidence to support the
judgment. We affirm.
BACKGROUND
George
Mount died On July 25, 2006,
at the age of 88.[1] At the time of his death, he was emaciated
and dehydrated, and, during the autopsy, it was learned he suffered from
carcinoma of the right lung
which had metastasized to his right kidney and adrenal glands. The lung cancer was never
diagnosed prior to Mr. Mount’s death.
Plaintiff,
Ramona Plank, is a daughter of George Mount.
Tanya Mount, another daughter of Mr. Mount, is plaintiff’s sister. Joaquin Renteria is Tanya’s son.[2] Tanya moved in with Mr. Mount prior to the
death of her mother (Mr. Mount’s wife) from cancer in 2004, and stayed on as
his caretaker thereafter. In June 2004,
Mr. Mount executed a Durable Power of Attorney for Health Care, nominating
Tanya as his attorney in fact to make health care decisions for him.
In 2005,
after Mr. Mount’s driver’s license expired, Tanya started taking Mr. Mount to
his doctor appointments. During the last
part of Mr. Mount’s last year of life, his doctor became concerned about rising
PSA levels (prostate specific antigen), and referred Mr. Mount to a
urologist. The urologist wanted to
perform a biopsy, but Mr. Mount refused.
Mr. Mount was aware that prostate cancer was a slow-progressing disease
and did not want treatment.
At a
doctor’s appointment on April 24, 2006,
Mr. Mount weighed a little less than 112 pounds. At that appointment, Dr. Cundari, Mr. Mount’s
personal doctor, informed Tanya that her father was declining and that he could
die at any time. After that appointment,
Mr. Mount declined medical treatment. He
did not believe in prolonging life and frequently discussed his views about
declining treatment at the end stage of life, as well as his desire to stay at
home. At the time of his death, he
weighed 88 pounds.
Until
April or June 2006, Mr. Mount was ambulatory and able to feed himself, although
he used a cane. He was able to feed
himself until the last week of his life.
In the month before he died, Mr. Mount used Depends and was bedridden
for a week or two before he died.
However, he remained lucid. By
most accounts, he was reasonably well cared for. However, plaintiff was concerned about foul
play and sought legal advice from an attorney.
The last
time plaintiff had seen her father was in September 2005. On September
27, 2005, plaintiff had asked if she could come to visit her father
on his birthday, but was told by Tanya that they were busy and that Mr. Mount
did not feel well. Plaintiff went to her
father’s house anyway, taking an elderly aunt, only to discover that a big
birthday party was taking place for her father.
In the bathroom, plaintiff discovered dog feces on the floor. Plaintiff informed Tanya of the dog feces but
Tanya said it was Mr. Mount’s responsibility and yelled at her father to clean
it up. Plaintiff did not hear from her
father and was unable to see her father again after September 2005, and
attributed the alienation to Tanya. She
was troubled when she learned that he suffered from malnutrition and dehydration
when he died, as well as by the fact they waited so long to call hospice.
Plaintiff’s
son, Alexander Plank, saw his grandfather, Mr. Mount, three or four times per
month in the last year of his grandfather’s life. Alexander had always been very close to his
grandfather and visited regularly until his last visit, which took place in
July 2006. In July 2006, he was only
able to visit his grandfather if he just showed up, because if he called in
advance, he was told it was a bad time to come over. At the July 2006 visit, which occurred
approximately two weeks prior to Mr. Mount’s death, his grandfather was thin,
out of breath, in bed and not able to walk.
Mr. Mount complained to Alexander about pain and stated he had
difficulty sleeping because he coughed up large amounts of mucous every four
hours. Alexander noted that his
grandfather’s room had an “old bed smell” and that the skin of his grandfather’s
legs was flaking. A lot of flaked skin
was in the bed, so Alexander brushed off the bed.
In the last
week of his life, Mr. Mount had no appetite, so Tanya fed him soups and Ensure,
a nutritional supplement. A home health
nurse came out to visit him the night before he passed away, pursuant to a
referral to hospice provided by Mr. Mount’s doctor. In the meantime, the home health nurse noted
that Mr. Mount was delirious and semiconscious, likely due to dehydration, and
malnutrition. He also had early stage
bed sores. The home health worker
prepared an assessment and made a referral for hospice caregivers, who were to
report the next day. Mr. Mount passed
away shortly before the hospice worker arrived.
Tanya did not realize her father was malnourished or dehydrated until
after he died because the visiting nurse did not tell her.
A nursing
expert who reviewed the report of the home health nurse and the autopsy report,
which indicated Mr. Mount suffered from end stage metastatic lung cancer,
concluded that Mr. Mount’s caregivers had not used a reasonable standard of
care in attending to him. Her opinion
was based on the preventability of dehydration and malnutrition, failure to
call 911, and failure to arrange for hospice care to provide comfort
measures. The nursing expert also explained
that the bed sores were easily preventable by slight turning of the patient.
Plaintiff
filed a complaint for elder abuse against Tanya Mount and her son Joaquin
Renteria, alleging two causes of action for wrongful death due to elder abuse
or neglect.[3] Following a bench trial, the court concluded
there was no credible evidence that lack of care by the defendants caused harm
to George Mount, and awarded judgment in favor of the defendants. Plaintiff appealed.
DISCUSSION
On appeal,
plaintiff complains that the court committed reversible error in finding there
was no evidence of harm caused by neglect, and that the court failed to render
a complete verdict. We disagree.
a. Standard of
Review
We review
the judgment for substantial evidence.
Under the substantial evidence standard of review, we review the entire
record to determine whether there is substantial evidence supporting the jury’s
factual determinations. (
870, 873-874.) We resolve all conflicts
in the evidence in favor of respondent, the prevailing party, and indulge all
legitimate and reasonable inferences in favor of upholding the trial court’s
findings. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138;
46 Cal.App.4th 1245, 1254-1255.) The
issue is not whether there is evidence in the record to support a different
finding, but whether there is some evidence that, if believed, would support
the findings of the trier of fact. (
429-430, fn. 5.)
It is for
the trial court to weigh the evidence and consider the demeanor and credibility of the witnesses. (Bookout
v. Nielsen, supra, 155 Cal.App.4th at p. 1141.) The testimony of a single witness, even a
party, is sufficient to provide substantial evidence to support a factual
finding. (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156,
170-171, citing In re Marriage of Mix
(1975) 14 Cal.3d 604, 614.) Neither conflicts
in the evidence, nor testimony which is subject to justifiable suspicion,
justifies the reversal of a judgment, for it is the exclusive province of the
trier of fact to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. (Oldham
v. Kizer (1991) 235 Cal.App.3d 1046, 1065.)
b. Substantial
Evidence Supports the Judgment
Under
Welfare and Institutions Code section 15610.07, abuse of an elder or dependent
adult consists of either (a) physical abuse, neglect, financial abuse,
abandonment, isolation, abduction, or other treatment with resulting physical
harm or pain or mental suffering; or (b) the deprivation by a care custodian of
goods or services that are necessary to avoid physical harm or mental
suffering. Neglect as a form of abuse
under the Elder Abuse Act refers “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.” (Delaney
v. Baker (1999) 20 Cal.4th 23, 34; Carter
v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404.)
To
constitute neglect within the meaning of the Elder Abuse Act, and thereby
trigger the enhanced remedies available under the act, a plaintiff must allege
and prove by clear and convincing
evidence that the defendant (1) had responsibility for meeting the basic
needs of the elder or dependent adult, such as nutrition, hydration, hygiene or
medical care; (2) knew of conditions that made the elder or dependent adult
unable to provide for his or her own basic needs; and (3) denied or withheld
goods or services necessary to meet the elder or dependent adult’s basic needs,
either with knowledge that injury was substantially certain to befall the elder
or dependent adult, or with conscious disregard of the high probability of such
injury. (Welf. & Inst. Code, §§
15610.07, subd. (b), 15610.57, subd. (b), 15657; Carter v. Prime Healthcare Paradise Valley
LLC, supra, 198 Cal.App.4th at pp. 406-407, and cases cited.)
Insofar as
elder abuse may be based on neglect, the elements of any negligence cause of
action are duty, breach of duty, proximate cause, and damages. (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 526.)
The test for establishing cause in fact asks whether the defendant’s
conduct was a substantial factor in bringing about the injury. (Mitchell
v. Gonzales (1991) 54 Cal.3d 1041, 1049.)
Heightened
remedies are provided under Welfare and Institutions Code section 15657, if the
plaintiff establishes recklessness, oppression, fraud or malice in the
commission of the abuse or neglect.
“Recklessness” refers to a subjective state of culpability greater than
simple negligence, involving deliberate disregard of the high degree of
probability than an injury will occur. (
972.) To trigger the enhanced remedies
for neglect under the Elder Abuse Act, the plaintiff must thus allege (and
ultimately prove by clear and convincing evidence) that the neglect caused the
elder or dependent adult to suffer physical harm, pain or mental
suffering. (Welf. & Inst. Code, §§
15610.07, subds. (a), (b), 15657; Carter
v. Prime Healthcare Paradise Valley LLC, supra, 198 Cal.App.4th at p.
407.)
Recklessness
has been found where a patient in a nursing facility while recovering from a
broken ankle was neglected for four months and the neglect led to her death. (See Delaney
v. Baker, supra, 20 Cal.4th at p. 31[elderly woman developed multiple
advanced-stage bedsores on her ankles, feet and buttocks, had been frequently
left lying in her own urine and feces for extended periods and the neglect
occurred despite the fact the decedent’s daughter frequently complained].) In this case, plaintiff failed to show
recklessness. It is true that Mr. Mount
had an early stage bedsore at the time of his death, but this fact alone is
insufficient to establish the higher state of culpability for
recklessness. Given the evidence that
Mr. Mount was in relatively good condition (lucid, ambulatory and able to feed
himself) until the week or so preceding his death, there was no evidence that
Mr. Mount had been neglected for an extended period of time with deliberate
disregard.
Nor did
plaintiff establish simple negligence because the element of causation is
lacking. While it may be said in
hindsight that defendants failed to ease Mr. Mount’s suffering, there was no
evidence that defendants’ conduct caused
it. To the contrary, the evidence was
overwhelming that Mr. Mount suffered from end stage lung cancer (and possibly
prostate cancer) which caused his suffering during the last week of his life.
Except for
the isolated incident in September 2005, involving the incident with the dog
feces in the bathroom while Mr. Mount was still active, defendant’s care of Mr.
Mount was described as adequate. The
relevant period, however, is the last week or so of his life, when he was wasting
away due to end stage lung
cancer. Nevertheless, even if
defendants breached the duty of care by failing to provide palliative care for
Mr. Mount prior to the eve of his death, they did not cause his suffering. They caused suffering only to plaintiff and
her family, but the Elder Abuse Act provides no remedy for family alienation.
There was
substantial evidence to support the trial court’s judgment.
DISPOSITION
The
judgment is affirmed. Costs are awarded
to respondents.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
[1] The parties stipulated to the admissibility of
certain records, including the autopsy report, from which we gleaned much
information that was not elicited during the testimony.
[2] Joaquin
was never asked who his mother was.
However, he testified that he aided his mother in caring for his
grandfather, and that his mother was the primary caregiver of Mr. Mount. We infer from these facts that his mother was
Tanya.
