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1 ||Paul &. Gumina, Esq. (SBN 160110) a, PALE Q
The Law Offices of Paul L. Gumina, P.C. ALA ME a4 C ve
2 |11735 N. First St., Suite 300 LOU
San Jose, CA 95112
3 || Telephone: (408) 573-7480
Facsimile: (408) 573-7185
4 || Attorney for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
NX
Ae
7 Om COUNTY OF ALAMEDA ‘f
8 UNLIMITED CIVIL DIVISION
9
PATRICIA BEGGS, individually and as Trustee of) Case No.: HG04138194
10 || the Hubert A. Dougherty Living Trust; MICHAEL )
BEGGS, as Trustee of the Hubert A. Dougherty ) FIRST AMENDED COMPLAINT FOR
11 || Living Trust; MARGARET A. MATTHEWS, Newer See? Senne” “ene? See! “oem? Seem” Smee! See? Set? Sasa!” Samet! “age”
DAMAGES
individually; and KATHLEEN NAKASHIMA,
12 || individually
13 Plaintiffs,
14 vs.
15 || HELIOS HEALTHCARE, LLC; and DOES 1
16 through 100, inclusive,
17 Defendants
Name
18
19 1. Plaintiff PATRICIA BEGGS is, and at all times mentioned herein was, an adult and a
20 || resident of the City of Fremont, County of Alameda, California. Plaintiff PATRICIA BEGGS is a
21 || surviving daughter and heir of her now deceased father, Hubert A. Dougherty (hereinafter, “the
22 || Decedent”), who died on July 8, 2003. Plaintiff MARGARET A. MATTHEWS is, and at all times
23 mentioned herein was, an adult and resident of the State of Texas, and is a surviving daughter and heir of
24 || the Decedent.
25 2. Plaintiff KATHLEEN NAKASHIMA is, and at all times mentioned herein was, an adult
26 || and resident of the State of California, and is a surviving daughter and heir of the Decedent.
27 3. Plaintiffs PATRICIA BEGGS and MICHAEL BEGGS (hereinafter, “the Trustees”), are,
28 and at all times mentioned herein were, competent adults, and are the Trustees of the Hubert A.
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Dougherty Living Trust. As such, the Trustees are also the Decedent’s successors in interest, as defined
in Code of Civil Procedure Section 377.11. In asserting the Third Cause of Action in this complaint, said
plaintiffs are acting as the Decedent’s successors in interest and are seeking relief on behalf of the
Decedent’s estate for the benefit of the five named beneficiaries of the Hubert A. Dougherty Living Trust.
In that regard, said plaintiffs have complied with the provisions of Code of Civil Procedure Section
377.32, by filing declarations as provided therein. In addition, the Trustees have standing, under Welfare
and Institutions Code Section 15657.3(d), to assert the second cause of action for elder abuse herein.
4. Defendant HELIOS HEALTHCARE, LLC (hereinafter, “HELIOS”), is, and at all times
mentioned herein was, a California Limited Liability Company licensed and authorized by the State of
10 California to conduct business in the County of Alameda. Among such businesses has been a licensed
11 skilled nursing facility located at 2500 Country Drive, Fremont, California (hereinafter, “the subject
12 facility”).
13 5. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as DOES
14 1 through 100, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs pray
15 leave to amend this complaint to allege the true names and capacities of said fictitiously named
16 defendants when ascertained.
17 6. Plaintiffs are informed and believe, and thereon allege, that each of the defendants herein
18 was, at all times relevant to this action, the agent, employee, general partner, representing partner, or joint
19 venturer of the remaining defendants and was acting within the course and scope of that relationship in
20 doing the things hereinafter alleged. Furthermore, in committing the acts and omissions alleged below,
21 the defendants were all acting with the knowledge, consent, approval, and/or ratification of their co-
22 defendants.
23 7. At all times mentioned herein, defendant HELIOS, and DOES 1 through 50, and each of
24 them, were responsible for the ownership, operation, control, management, and/or supervision of the
25 subject facility.
26 8. At all times mentioned herein, the subject facility was a “skilled nursing facility,” “Health
27 care facility,” and/or “long-term facility,” as those terms are defined in Health and Safety Code Section
28 1250.
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9. At all times mentioned herein, defendants DOES 51 through 100, and each of them, were
administrators, managers, supervisors, nurses, or other types of assistants trained and employed to assist
in the care of patients at the subject facility. As such, each of aid defendants was a “care custodian,” as
that term is defined in Welfare and Institutions Code Section 15610.17
10. Jurisdiction in this County is proper because the contracts alleged herein were made in this
County, and were intended to be performed in this county, and the injuries to plaintiffs’ Decedent alleged
herein took place in this County.
FIRST CAUSE OF ACTION
10 WRONGFUL DEATH
11 11. Paragraphs 1 through 10, above, are incorporated herein as if fully set forth below.
12 12. On or about June 8, 2003, the Decedent, then age 82, was admitted to the subject facility.
13 At the time of his admission, the Decedent suffered from Parkinson’s Disease, hypertention, and
14 dementia, including short and long term memory problems. His speech was not clear and he required
15 total assistance with activities of daily living. The Decedent received all of his nutrition and medications
16 through his naso-gastric tube (hereinafter, the “NG tube”).
17 13. On or about July 6, 2003, one or more of the Decedent’s nurses, herein identified as Does
18 51 through 60, an each of them, inserted the Decedent’s NG tube. Defendant DOE 51 documented in her
19 notes that she resumed tube feeding of the Decedent at 5:15 PM and that he tolerated his feeding well and
20 did not require suctioning.
21 14. ‘Plaintiffs are informed and believe, and thereon allege, that on or about July 7, 2003, one
22 or more unidentified members of the nursing staff, herein identified as DOES 51 - 60, and each of them,
23 reinserted the Decedent's NG tube. On or about July 7, 2003, the Decedent’s speech therapist who was
24 working with the Decedent that day for swallowing, asked one or more members of the nursing staff to
25 check the Decedent because he was grossly unresponsive and because there was a deterioration in his
26 normal condition. No member of the nursing staff took any action. Plaintiff is informed and believes,
and thereon alleges, that at approximately 4:00 PM on July 7, 2003, the Decedent began to experience
severe difficulties in breathing, and he was making groaning and gurgling sounds. The Decedent’s
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roommate called for assistance of the nursing staff. Plaintiff is informed and believes, and thereon
alleges, that from approximately 4:00 PM to approximately 10:20 PM on July 7, 2003, the Decedent was
worked on continuously by unidentified members of the nursing staff, who repeatedly suctioned the
Decedent to remove fluids that were being secreted through the Decedent’s mouth, without removing the
NG tube or stopping his feeding through the NG tube. These unidentified members of the nursing staff
failed to call the Decedent’s physician, nor did they assess the need to stop the tube feeding in light of the
increased need for suctioning. Nor did any member of the nursing staff confirm placement of the NG
tube after all of these suctioning events. .
15. At approximately 10:40 PM on July 7, 2003, an unidentified member of the nursing staff
10 telephoned plaintiff PATRICIA BEGGS to report that the Decedent was unresponsive and having
11 difficulty breathing, and asking her what to do. Plaintiff BEGGS told the nursing staff to telephone the
12 paramedics so that the Decedent could be taken to Kaiser Hospital. The paramedics transported the
13 Decedent to Kaiser Hospital in Fremont, California, where he arrived at approximately 11:00 PM on July
14 7, 2003. X-Rays taken by Kaiser showed that the feeding tube had perforated the Decedent’s esophagus
15 and the end of the tube had been placed into the right lower bronchial lobe of the Decedent’s lungs, which
16 had filled with fluid. The Alameda County Coroner’s Bureau determined that the cause of death was
17 cardiorespiratory failure due to aspiration of foreign material due to endotracheal placement of the
18 nasogastric tube.
19 16. The above-described acts and omissions of the defendants, and each of them, were
20 negligent. As a proximate result of the above-described negligence said defendants, the Decedent died at
21 approximately 1:16 AM on July 8, 2003, due to the complications and sequelae associated with the
22 injuries described hereinabove.
23 17. Asa further proximate result of the above-described negligence of the defendants, and
24 each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN
25 NAKASHIMA, have been deprived of their father’s love, companionship, comfort, society, solace and
26 moral support.
27
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18. Asa further proximate result of the above-described negligence of the defendants, and
each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN
NAKASHIMA have incurred funeral and burial expenses in an amount subject to proof at trial.
SECOND CAUSE OF ACTION
WRONGFUL DEATH — NEGLIGENCE PER SE
19. Paragraphs 1 through 18, above, are incorporated herein as if fully set forth below.
20. The above-described acts and omissions of the defendants, and each of them, violated
California Code of Regulations, Title 22, Sections 72311 (a)(1)(A), and 72311 (a)(3)(B). These
regulations provide as follows: “(a) Nursing services shall include, but not be limited to, the following:
10 (1) Planning of patient care, which shall include at least the following: (A) Identification of care needs
11 based upon an initial written and continuing assessment of the patient’s needs with input, as necessary,
12 from health professionals involved in the care of the patient. Initial assessments shall commence at the
13 time of admission of the patient and be completed within seven days after admission. ... (3) Notifying the
14 attending physician promptly of: ...(B) Any sudden and/or marked change in signs, symptoms or
15 behavior exhibited by a patient.”
16 21. The Decedent was among the class of persons who were intended to be protected by the
17 above-stated regulations.
18 22. The above-described acts and omissions of the defendants, and each of them, were
19 negligent per se. As a proximate result of the above-described negligence said defendants, the Decedent
20 died at approximately 1:16 AM on July 8, 2003, due to the complications and sequelae associated with the
21 injuries described hereinabove.
22 23. Asa further proximate result of the above-described negligence of the defendants, and
23 each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN
24 NAKASHIMA, have been deprived of their father’s love, companionship, comfort, society, solace and
25 moral support.
26 24. Asa further proximate result of the above-described negligence of the defendants, and
27 each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN
28 NAKASHIMA have incurred funeral and burial expenses in an amount subject to proof at trial.
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THIRD CAUSE OF ACTION
FOR ELDER ABUSE
25. Paragraphs 1 through 24, above, are incorporated herein as if fully set forth below.
26. Inowning, operating controlling, managing, supervising, and/or working a the subject
facility, defendants, and each of them, were required to provide health care, room and board, 24-hour
supervision, and personal care and assistance to the residents. The care and supervision of said
defendants included: Assistance with medication and personal care, as more specifically described in
Health and Safety Code Section 1569.20(d); assistance with instrumental activities of daily life, as
defined in Health and safety Code Section 1569.20(f); and monitoring of the residents’ activities, so as to
10 ensure the residents’ health and welfare.
11 27. It has been expressly recognized by the California legislature, through Welfare and
12 Institutions Code Section 15600 (a) — (d), that the elderly segment of the population is particularly subject
13 to various forms of abuse and neglect. Physical infirmities and/or mental impairments, like those
14 experienced by the Decedent herein, as will be described more fully below, often place the elderly in a
15 dependent and vulnerable position. At the same time, such infirmities and impairments leave the elderly,
16 such as the decent herein, incapable of asking for help and protection.
17 28. Recognizing the problems described in the preceding paragraph, the California legislature
18 has enacted the Elder Abuse and Dependent Adult Civil Protection Act “EADACPA”). This act is
19 codified in Welfare and Institutions Code Sections 15600 et seq. The purpose and intent of the
20 EADACPA was made clear within subsections (h) and G) of Welfare and Institutions Code Section
21 15600. As reflected therein, the California legislature found and declared that infirm, elderly, and
22 dependent adults are a disadvantaged class, and that few civil cases are brought in connection with their
23 abuse and neglect, due to problems of proof and delays, plus the lack of incentives to prosecute such suits.
24 29. The EADACPA defines an “elder” as any person residing in California, who is an adult 65
25 years of age or older, such as the Decedent was at the time of the events described hereinabove.
26 30. Beginning on or about June 8, 2003, and continuing until July 7, 2003, except where noted
27 below, the Decedent was a patient at the subject facility. During his stay at the subject facility, the
28 Decedent was 82 years old.
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31. Defendants, and each of them, knew and understood, or reasonably should have known
and understood, that at the time of the Decedent’s admission to the subject facility, the Decedent suffered
from Parkinson’s Disease; hypertention; and dementia, including short and long term memory problems;
his speech was not clear; he required total assistance with activities of daily living; and the Decedent
received all of his nutrition and medications through an NG tube.
32. During his stay at the subject facility, the Decedent was an “elder” and a “dependent adult”
as those terms are defined under EADACPA. Accordingly, defendants, and each of them, were all
“caretakers” as defined in Welfare and Institutions Code Section 15610.17. This meant that said
defendants owed a duty of utmost good faith and fairness to the Decedent in all matters pertaining to his
10 health, care, and comfort, so that said defendants were fiduciaries of the Decedent and stood in a position
11 of trust and confidence with him and his family members, including plaintiff PATRICIA BEGGS.
12 33. | While the Decedent was a resident at the subject facility from May 31, 2003 through July
13 7, 2003, he and his concerned family members, including the three plaintiffs herein, trusted and confided
14 in defendants, and each of them. Consequently, the Decedent and his concerned family members,
15 including the three plaintiffs herein, believed and were assured that said defendants would properly care
16 for the Decedent, and would provide him with needed services and assistance, by:
17 (a) Following, implementing, and adhering to all physician orders;
18 (b) Protecting the Decedent from sustaining injuries to his person;
19 (c) Monitoring and accurately recording the Decedent’s condition, and notifying his
20 attending physician and family members of any meaningful change in his condition;
21 (d) Establishing and implementing a patient-care plan for the Decedent, based upon an
22 ongoing process of identifying his health needs and making sure that such needs were timely met;
23 (e) Accurately monitoring and providing for the Decedent’s health, comfort, and safety;
24 (f) Maintaining accurate records of the Decedent's condition and activities;
25 (g) Handling, moving, and transferring the Decedent, when necessary, in a safe and
26 careful
27 manner;
28 (h) Providing the Decedent with appropriate medical and nursing care;
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(i) Maintaining trained, qualified, and licensed nursing and other staffing at levels
adequate to meet the Decedent's needs;
(Gj) Providing sufficient supervision to the Decedent, a vulnerable patient, to ensure her
safety; and,
(k) Treating the Decedent with dignity and respect, and without abuse.
34. In owning, operating, controlling, managing, and/or supervising the subject facility,
defendants, and each of them, held themselves out, to the general public and to the Decedent and his
family members, as being in compliance with all applicable federal and state laws. Said defendants,
though, knew that the facility was not designed, administered, or funded to comply with their legal
10 responsibilities to provide adequate care to the residents.
11 35. The subject facility was advertised and represented by defendants, and each of them, to be
12 a facility which provided skilled nursing care and services for the benefit of elders and dependent adults,
13 many of whom were known to be on extremely poor health and condition.
14 36. Atall times herein mentioned, many of the residents of the facility, including the
15 Decedent, were relatively helpless, non-ambulatory, infirm, disabled, frail, vulnerable, and/or completely
16 dependent individuals, in constant need of adequate and reasonable care and services.
17 37. Prior to and up to July 7, 2003, defendants, through members of said defendants' senior
18 management staff, including defendants DOES 51-100, inclusive, intentionally and deliberately
19 conceived, developed, and implemented a plan to wrongfully increase the business profits, at the expense
20 of residents such as the Decedent. Integral to this plan was the practice and pattern of staffing facility
21 with an insufficient number of care personnel, many of whom were not properly trained and qualified.
22 This "understaffing" plan, which was designed and established to reduce labor costs and to increase
23 profits, resulted in the physical abuse and neglect of many residents, including the Decedent.
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38. At all times herein mentioned, defendants, and each of them, knew that, as a consequence
of the plan described in the preceding paragraph, their skilled nursing facilities (including the subject
facility) were not designed, administered, or funded to comply with legal responsibilities to provide care
to residents. Rather, said defendants knew, or should have known, that this plan was designed to
circumvent their legal duties to satisfy applicable statutes and regulations, so as to wrongfully maximize
the business profits. Such knowledge was exclusively in the possession of said defendants, and neither
the Decedent nor his family members possessed such knowledge or had an opportunity to obtain the true
information while the Decedent resided at the subject facility.
39. The harm and damage caused by the above-described "understaffing" plan has manifested
10 itself in many ways within said defendants’ skilled nursing facilities, including, but not limited to, the
11 following: From an unknown time prior to June 20, 2003, until June 20, 2003, defendants failed to
12 administer sufficient water to the Decedent, and failed to monitor his intake of water, so that, on June 20,
13 2003, he was taken from the skilled nursing facility to Kaiser Hospital suffering from severe dehydration
14 and renal failure, which caused the Decedent extreme physical pain and anguish. The Decedent was able
15 to recover sufficiently from this episode of dehydration so that, on June 25, 2003, he was released from
16 Kaiser Hospital and transferred back to defendants' skilled nursing facility.
17 40. The harm and damage caused by the above-described “understaffing" plan also manifested
18 itself as follows: On or about July 6, 2003, plaintiff PATRICIA BEGGS visited the Decedent in his
19 room at the subject facility. She observed that the Decedent’s feeding tube had been removed, and she
20 complained to an unidentified member of the nursing staff. One or more of the Decedent’s nurses, herein
21 identified as Does 51 through 60, an each of them, inserted the Decedent’s NG tube. Defendant DOE 51
22 documented in her notes that she resumed tube feeding of the Decedent at 5:15 PM and that he tolerated
23 his feeding well and did not require suctioning. Plaintiffs are informed and believe, and thereon allege,
24 that on or about July 7, 2003, one or more unidentified members of the nursing staff, herein identified as
25 DOES 51 - 60, and each of them, reinserted the Decedent's NG tube. On or about July 7, 2003, the
26 Decedent’s speech therapist who was working with the Decedent that day for swallowing, asked one or
27 more members of the nursing staff to check the Decedent because he was grossly unresponsive and
28 because there was a deterioration in his normal condition. No member of the nursing staff took any
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action. Plaintiff is informed and believes, and thereon alleges, that at approximately 4:00 PM on July 7,
2003, the Decedent began to experience severe difficulties in breathing, and he was making groaning and
gurgling sounds. The Decedent’s roommate called for assistance of the nursing staff. Plaintiffis
informed and believes, and thereon alleges, that from approximately 4:00 PM to approximately 10:20 PM
on July 7, 2003, the Decedent was worked on continuously by unidentified members of the nursing staff,
who repeatedly suctioned the Decedent to remove fluids that were being secreted through the Decedent’s
mouth, without removing the NG tube or stopping his feeding through the NG tube. Plaintiffs are
informed and believe, and thereon allege, that the Decedent was in severe physical pain and agony during
this time, and that the defendants failed to take any steps to relieve his pain and suffering. These
10 unidentified members of the nursing staff failed to call the Decedent’s physician, nor did they assess the
11 need to stop the tube feeding in light of the increased need for suctioning. Nor did any member of the
12 nursing staff confirm placement of the NG tube after all of these suctioning events. At approximately
13 10:40 PM on July 7, 2003, an unidentified member of the nursing staff telephoned plaintiff PATRICIA
14 BEGGS to report that the Decedent was unresponsive and having difficulty breathing, and asking her
15 what to do. Plaintiff BEGGS told the nursing staff to telephone the paramedics so that the Decedent
16 could be taken to Kaiser Hospital. The paramedics transported the Decedent to Kaiser Hospital in
17 Fremont, California, where he arrived at approximately 11:00 PM on July 7, 2003. X-Rays taken by
18 Kaiser showed that the feeding tube had perforated the Decedent’s esophagus and the end of the tube had
19 been placed into the right lower bronchial lobe of the Decedent’s lungs, which had filled with fluid. The
20 Alameda County Coroner’s Bureau determined that the cause of death was cardiorespiratory failure due to
21 aspiration of foreign material due to endotracheal placement of the nasogastric tube.
22 41. Said defendants have compounded the harm and damage resulting from their
23 "understaffing" plan by intentionally, willfully, and / or recklessly misrepresenting the causes and
24 contributory conditions of the inadequate care rendered to the Decedent to third parties, such as the
25 Alameda Coroner's Bureau, state regulators and investigators, and members of the Decedent's family; and
26 by intentionally, willfully, and /or recklessly instructing staff to reword, modify, rewrite and / or destroy
27 reports and other documents concerning the inadequate care rendered to the Decedent, in order to conceal
28
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the fact that the facility's untrained staff and / or understaffed conditions caused or contributed to the
Decedent's injuries and death as alleged hereinabove.
42. Asaproximate result of defendants’ continuing pattern of tortuous misconduct as alleged
hereinabove, the Decedent suffered from the following damages, for which plaintiffs, as his successor in
interest, are seeking compensation herein: Severe personal injuries, including severe dehydration on or
about June 20, 2003, and aspiration of foreign material due to endotracheal placement of his NG tube on
or about July 7, 2003, thereby resulting in severe physical pain and suffering, as well as severe mental and|
emotional distress, all to the Decedent's damage in a sum that will be proven at trial; medical and
incidental expenses; death; and funeral and related expenses, in a sum subject to proof at trial.
10 43. At all times mentioned herein, defendant HELIOS and DOES 1 through 50, and each of
ii them, knew of the need to comply with the laws applicable to the ownership, operation, management, and
12 / or supervision of skilled nursing facilities, and further knew that non-compliance with such laws would
13 put the health and welfare of the residents, including the Decedent, unreasonably at risk. Said defendants
14 also knew that the continual failure or refusal to discharge their duties to the Decedent would likely result
15 in injury and / or death to him.
16 44, The conduct of said defendants, as alleged hereinabove, constitutes "physical abuse" and
17 "neglect" as those terms are defined in Welfare and Institutions Code Sections 15610.63 and 15610.57, in
18 that the defendants failed to exercise the degree of care that a reasonable person having the custody of the
19 Decedent would exercise. Furthermore, the continuing pattern of elder abuse, as alleged hereinabove, was
20 in accordance with the above-described plan of the defendants to staff their skilled nursing facility at
21 inadequate levels, so as to wrongfully maximize their business profits.
22 45. Because the above-described conduct of the defendants HELIOS and DOES 1 through 50,
23 and each of them, was a direct consequence of their motive and plan to elevate profits above patient care,
24 said defendants are guilty of malice, fraud, recklessness, and oppression in the commission of the abuse
25 alleged herein. Thus, under Welfare and Institutions Code Section 15657(a) - (b), and said defendants are
26 liable to plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors in interest for the
27 benefit of the beneficiaries of the Hubert A. Dougherty Living Trust, for damages related to personal
28 injury, medical expenses, and incidental expenses, and death, plus attorneys’ fees and costs. Furthermore,
Complaint for Damages Page 11
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said defendants are liable to plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors
in interest for the benefit of the beneficiaries of the Hubert A. Dougherty Living Trust, for treble damages,
pursuant to Civil Code Section 3345.
46. The acts and omissions of the defendants, and each of them, as set forth above, were in all
respects malicious, oppressive, fraudulent, or reckless and manifested conscious disregard or contempt for|
the rights of the Decedent. Plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors in
interest for the benefit of the beneficiaries of the Hubert A. Dougherty Living Trust, are thereby also
entitled to an award of punitive and exemplary damages, attorneys' fees, and post-death general damages
pursuant to Welfare & Institutions Code § 15657, in an amount according to proof at trial.
10 FOURTH CAUSE OF ACTION
11 NEGLIGENT INFLICTION OF SEVERE EMOTIONAL DISTRESS
12 (On Behalf Of Plaintiffs PATRICIA BEGGS, Individually, and
13 KATHLEEN NAKASHIMA, Individually)
14 47. Paragraphs 12 through 16, above, are incorporated herein as if fully set forth below.
15 48. Plaintiffs PATRICIA BEGGS and KATHLEEN NAKASHIMA were present with the
16 Decedent in the emergency room at Kaiser Hospital on the night of July 7, 2003 and in the early morning
17 of July 8, 2003, and personally attended to the Decedent and was with him up until the time the Decedent
18 expired. As a result, plaintiff suffered severe emotional distress, including, but not limited to, shock,
19 fright, anxiety, nervousness, sleeplessness, nightmares, nausea, and grief.
20 49. Asaresult of the conduct of the defendants, and each of them, in causing injury and death
21 to the Decedent, which was contemporaneously observed by plaintiffs PATRICIA BEGGS and defendant
22 KATHLEEN NAKASHIMA, plaintiffs have suffered general damages, subject to proof at trial.
23
24 WHEREFORE, plaintiffs pray judgment against the defendants, and each of them, jointly and severally,
25 as follows:
26 1. ON THE FIRST AND SECOND CAUSES OF ACTION, in favor of Plaintiffs PATRICIA
27 BEGGS, MARGARET A. MATTHEWS, and KATHLEEN NAKASHIMA, individually:
28 A. For economic damages, including medical and funeral expenses, according to proof;
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B. For non-economic damages for plaintiffs’ loss of the Decedent's companionship, comfort,
society, solace, and moral support, according to proof;
C. For pre-judgment interest allowable by law;
D. For costs of suit incurred herein;
E. For such other and further relief as the Court may deem just and proper.
2. ON THE THIRD CAUSE OF ACTION, in favor of plaintiffs PATRICIA and MICHAEL
BEGGS, as the Decedent's successors in interest and for the benefit of the beneficiaries of the Hubert A.
Dougherty Living Trust:
A. For economic damages, including medical and funeral expenses, according to proof;
10 B. For general damages as compensation for the Decedent's pain and suffering, pursuant to
11 Welfare & Institutions Code § 15657;
12 C. For attorneys’ fees and costs of suit herein, according to proof, pursuant to Welfare &
13 Institutions Code § 15657;
14 D. For treble damages, pursuant to Civil Code Section 3345;
15 E. For pre-judgment interest allowable by law;
16 F, For punitive and exemplary damages in an amount sufficient to punish and deter against
17 similar conduct in the future; and,
18 G. For such other and further relief as the Court may deem just and proper.
19 3. ON THE FOURTH CAUSE OF ACTION, on behalf of plaintiffs PATRICIA BEGGS and
20 KATHLEEN NAKASHIMA, individually:
21 A. For non-economic damages as compensation for her severe emotional distress, according
22 to proof;
23 B. For pre-judgment interest allowable by law;
24 C. For costs of suit incurred herein;
25 D. For such other and further relief as the Court may deem just and proper.
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EEX ae
DATED: November 1, 2004 THE LAW OFFICES OF PAUL L. GUMINA, P.C.
Paul U. Gumina, Esq.
Attorney for Plaintiffs
PATRICIA AND MICHAEL BEGGS,
MARGARET A. MATTHEWS
KATHLEEN NAKASHIMA
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7 . . e eo iis ee — —. aan 1 ||Paul &. Gumina, Esq. (SBN 160110) a, PALE Q The Law Offices of Paul L. Gumina, P.C. ALA ME a4 C ve 2 |11735 N. First St., Suite 300 LOU San Jose, CA 95112 3 || Telephone: (408) 573-7480 Facsimile: (408) 573-7185 4 || Attorney for Plaintiffs SUPERIOR COURT OF CALIFORNIA NX Ae 7 Om COUNTY OF ALAMEDA ‘f 8 UNLIMITED CIVIL DIVISION 9 PATRICIA BEGGS, individually and as Trustee of) Case No.: HG04138194 10 || the Hubert A. Dougherty Living Trust; MICHAEL ) BEGGS, as Trustee of the Hubert A. Dougherty ) FIRST AMENDED COMPLAINT FOR 11 || Living Trust; MARGARET A. MATTHEWS, Newer See? Senne” “ene? See! “oem? Seem” Smee! See? Set? Sasa!” Samet! “age” DAMAGES individually; and KATHLEEN NAKASHIMA, 12 || individually 13 Plaintiffs, 14 vs. 15 || HELIOS HEALTHCARE, LLC; and DOES 1 16 through 100, inclusive, 17 Defendants Name 18 19 1. Plaintiff PATRICIA BEGGS is, and at all times mentioned herein was, an adult and a 20 || resident of the City of Fremont, County of Alameda, California. Plaintiff PATRICIA BEGGS is a 21 || surviving daughter and heir of her now deceased father, Hubert A. Dougherty (hereinafter, “the 22 || Decedent”), who died on July 8, 2003. Plaintiff MARGARET A. MATTHEWS is, and at all times 23 mentioned herein was, an adult and resident of the State of Texas, and is a surviving daughter and heir of 24 || the Decedent. 25 2. Plaintiff KATHLEEN NAKASHIMA is, and at all times mentioned herein was, an adult 26 || and resident of the State of California, and is a surviving daughter and heir of the Decedent. 27 3. Plaintiffs PATRICIA BEGGS and MICHAEL BEGGS (hereinafter, “the Trustees”), are, 28 and at all times mentioned herein were, competent adults, and are the Trustees of the Hubert A. Complaint for Damages Page 1 Dougherty Living Trust. As such, the Trustees are also the Decedent’s successors in interest, as defined in Code of Civil Procedure Section 377.11. In asserting the Third Cause of Action in this complaint, said plaintiffs are acting as the Decedent’s successors in interest and are seeking relief on behalf of the Decedent’s estate for the benefit of the five named beneficiaries of the Hubert A. Dougherty Living Trust. In that regard, said plaintiffs have complied with the provisions of Code of Civil Procedure Section 377.32, by filing declarations as provided therein. In addition, the Trustees have standing, under Welfare and Institutions Code Section 15657.3(d), to assert the second cause of action for elder abuse herein. 4. Defendant HELIOS HEALTHCARE, LLC (hereinafter, “HELIOS”), is, and at all times mentioned herein was, a California Limited Liability Company licensed and authorized by the State of 10 California to conduct business in the County of Alameda. Among such businesses has been a licensed 11 skilled nursing facility located at 2500 Country Drive, Fremont, California (hereinafter, “the subject 12 facility”). 13 5. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as DOES 14 1 through 100, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs pray 15 leave to amend this complaint to allege the true names and capacities of said fictitiously named 16 defendants when ascertained. 17 6. Plaintiffs are informed and believe, and thereon allege, that each of the defendants herein 18 was, at all times relevant to this action, the agent, employee, general partner, representing partner, or joint 19 venturer of the remaining defendants and was acting within the course and scope of that relationship in 20 doing the things hereinafter alleged. Furthermore, in committing the acts and omissions alleged below, 21 the defendants were all acting with the knowledge, consent, approval, and/or ratification of their co- 22 defendants. 23 7. At all times mentioned herein, defendant HELIOS, and DOES 1 through 50, and each of 24 them, were responsible for the ownership, operation, control, management, and/or supervision of the 25 subject facility. 26 8. At all times mentioned herein, the subject facility was a “skilled nursing facility,” “Health 27 care facility,” and/or “long-term facility,” as those terms are defined in Health and Safety Code Section 28 1250. Complaint for Damages Page 2 9. At all times mentioned herein, defendants DOES 51 through 100, and each of them, were administrators, managers, supervisors, nurses, or other types of assistants trained and employed to assist in the care of patients at the subject facility. As such, each of aid defendants was a “care custodian,” as that term is defined in Welfare and Institutions Code Section 15610.17 10. Jurisdiction in this County is proper because the contracts alleged herein were made in this County, and were intended to be performed in this county, and the injuries to plaintiffs’ Decedent alleged herein took place in this County. FIRST CAUSE OF ACTION 10 WRONGFUL DEATH 11 11. Paragraphs 1 through 10, above, are incorporated herein as if fully set forth below. 12 12. On or about June 8, 2003, the Decedent, then age 82, was admitted to the subject facility. 13 At the time of his admission, the Decedent suffered from Parkinson’s Disease, hypertention, and 14 dementia, including short and long term memory problems. His speech was not clear and he required 15 total assistance with activities of daily living. The Decedent received all of his nutrition and medications 16 through his naso-gastric tube (hereinafter, the “NG tube”). 17 13. On or about July 6, 2003, one or more of the Decedent’s nurses, herein identified as Does 18 51 through 60, an each of them, inserted the Decedent’s NG tube. Defendant DOE 51 documented in her 19 notes that she resumed tube feeding of the Decedent at 5:15 PM and that he tolerated his feeding well and 20 did not require suctioning. 21 14. ‘Plaintiffs are informed and believe, and thereon allege, that on or about July 7, 2003, one 22 or more unidentified members of the nursing staff, herein identified as DOES 51 - 60, and each of them, 23 reinserted the Decedent's NG tube. On or about July 7, 2003, the Decedent’s speech therapist who was 24 working with the Decedent that day for swallowing, asked one or more members of the nursing staff to 25 check the Decedent because he was grossly unresponsive and because there was a deterioration in his 26 normal condition. No member of the nursing staff took any action. Plaintiff is informed and believes, and thereon alleges, that at approximately 4:00 PM on July 7, 2003, the Decedent began to experience severe difficulties in breathing, and he was making groaning and gurgling sounds. The Decedent’s Complaint for Damages Page 3 roommate called for assistance of the nursing staff. Plaintiff is informed and believes, and thereon alleges, that from approximately 4:00 PM to approximately 10:20 PM on July 7, 2003, the Decedent was worked on continuously by unidentified members of the nursing staff, who repeatedly suctioned the Decedent to remove fluids that were being secreted through the Decedent’s mouth, without removing the NG tube or stopping his feeding through the NG tube. These unidentified members of the nursing staff failed to call the Decedent’s physician, nor did they assess the need to stop the tube feeding in light of the increased need for suctioning. Nor did any member of the nursing staff confirm placement of the NG tube after all of these suctioning events. . 15. At approximately 10:40 PM on July 7, 2003, an unidentified member of the nursing staff 10 telephoned plaintiff PATRICIA BEGGS to report that the Decedent was unresponsive and having 11 difficulty breathing, and asking her what to do. Plaintiff BEGGS told the nursing staff to telephone the 12 paramedics so that the Decedent could be taken to Kaiser Hospital. The paramedics transported the 13 Decedent to Kaiser Hospital in Fremont, California, where he arrived at approximately 11:00 PM on July 14 7, 2003. X-Rays taken by Kaiser showed that the feeding tube had perforated the Decedent’s esophagus 15 and the end of the tube had been placed into the right lower bronchial lobe of the Decedent’s lungs, which 16 had filled with fluid. The Alameda County Coroner’s Bureau determined that the cause of death was 17 cardiorespiratory failure due to aspiration of foreign material due to endotracheal placement of the 18 nasogastric tube. 19 16. The above-described acts and omissions of the defendants, and each of them, were 20 negligent. As a proximate result of the above-described negligence said defendants, the Decedent died at 21 approximately 1:16 AM on July 8, 2003, due to the complications and sequelae associated with the 22 injuries described hereinabove. 23 17. Asa further proximate result of the above-described negligence of the defendants, and 24 each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN 25 NAKASHIMA, have been deprived of their father’s love, companionship, comfort, society, solace and 26 moral support. 27 28 Complaint for Damages Page 4 18. Asa further proximate result of the above-described negligence of the defendants, and each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN NAKASHIMA have incurred funeral and burial expenses in an amount subject to proof at trial. SECOND CAUSE OF ACTION WRONGFUL DEATH — NEGLIGENCE PER SE 19. Paragraphs 1 through 18, above, are incorporated herein as if fully set forth below. 20. The above-described acts and omissions of the defendants, and each of them, violated California Code of Regulations, Title 22, Sections 72311 (a)(1)(A), and 72311 (a)(3)(B). These regulations provide as follows: “(a) Nursing services shall include, but not be limited to, the following: 10 (1) Planning of patient care, which shall include at least the following: (A) Identification of care needs 11 based upon an initial written and continuing assessment of the patient’s needs with input, as necessary, 12 from health professionals involved in the care of the patient. Initial assessments shall commence at the 13 time of admission of the patient and be completed within seven days after admission. ... (3) Notifying the 14 attending physician promptly of: ...(B) Any sudden and/or marked change in signs, symptoms or 15 behavior exhibited by a patient.” 16 21. The Decedent was among the class of persons who were intended to be protected by the 17 above-stated regulations. 18 22. The above-described acts and omissions of the defendants, and each of them, were 19 negligent per se. As a proximate result of the above-described negligence said defendants, the Decedent 20 died at approximately 1:16 AM on July 8, 2003, due to the complications and sequelae associated with the 21 injuries described hereinabove. 22 23. Asa further proximate result of the above-described negligence of the defendants, and 23 each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN 24 NAKASHIMA, have been deprived of their father’s love, companionship, comfort, society, solace and 25 moral support. 26 24. Asa further proximate result of the above-described negligence of the defendants, and 27 each of them, plaintiffs PATRICIA BEGGS, MARGARET A. MATTHEWS, and KATHLEEN 28 NAKASHIMA have incurred funeral and burial expenses in an amount subject to proof at trial. Complaint for Damages Page 5 THIRD CAUSE OF ACTION FOR ELDER ABUSE 25. Paragraphs 1 through 24, above, are incorporated herein as if fully set forth below. 26. Inowning, operating controlling, managing, supervising, and/or working a the subject facility, defendants, and each of them, were required to provide health care, room and board, 24-hour supervision, and personal care and assistance to the residents. The care and supervision of said defendants included: Assistance with medication and personal care, as more specifically described in Health and Safety Code Section 1569.20(d); assistance with instrumental activities of daily life, as defined in Health and safety Code Section 1569.20(f); and monitoring of the residents’ activities, so as to 10 ensure the residents’ health and welfare. 11 27. It has been expressly recognized by the California legislature, through Welfare and 12 Institutions Code Section 15600 (a) — (d), that the elderly segment of the population is particularly subject 13 to various forms of abuse and neglect. Physical infirmities and/or mental impairments, like those 14 experienced by the Decedent herein, as will be described more fully below, often place the elderly in a 15 dependent and vulnerable position. At the same time, such infirmities and impairments leave the elderly, 16 such as the decent herein, incapable of asking for help and protection. 17 28. Recognizing the problems described in the preceding paragraph, the California legislature 18 has enacted the Elder Abuse and Dependent Adult Civil Protection Act “EADACPA”). This act is 19 codified in Welfare and Institutions Code Sections 15600 et seq. The purpose and intent of the 20 EADACPA was made clear within subsections (h) and G) of Welfare and Institutions Code Section 21 15600. As reflected therein, the California legislature found and declared that infirm, elderly, and 22 dependent adults are a disadvantaged class, and that few civil cases are brought in connection with their 23 abuse and neglect, due to problems of proof and delays, plus the lack of incentives to prosecute such suits. 24 29. The EADACPA defines an “elder” as any person residing in California, who is an adult 65 25 years of age or older, such as the Decedent was at the time of the events described hereinabove. 26 30. Beginning on or about June 8, 2003, and continuing until July 7, 2003, except where noted 27 below, the Decedent was a patient at the subject facility. During his stay at the subject facility, the 28 Decedent was 82 years old. Complaint for Damages Page 6 EEE ESE Ee 31. Defendants, and each of them, knew and understood, or reasonably should have known and understood, that at the time of the Decedent’s admission to the subject facility, the Decedent suffered from Parkinson’s Disease; hypertention; and dementia, including short and long term memory problems; his speech was not clear; he required total assistance with activities of daily living; and the Decedent received all of his nutrition and medications through an NG tube. 32. During his stay at the subject facility, the Decedent was an “elder” and a “dependent adult” as those terms are defined under EADACPA. Accordingly, defendants, and each of them, were all “caretakers” as defined in Welfare and Institutions Code Section 15610.17. This meant that said defendants owed a duty of utmost good faith and fairness to the Decedent in all matters pertaining to his 10 health, care, and comfort, so that said defendants were fiduciaries of the Decedent and stood in a position 11 of trust and confidence with him and his family members, including plaintiff PATRICIA BEGGS. 12 33. | While the Decedent was a resident at the subject facility from May 31, 2003 through July 13 7, 2003, he and his concerned family members, including the three plaintiffs herein, trusted and confided 14 in defendants, and each of them. Consequently, the Decedent and his concerned family members, 15 including the three plaintiffs herein, believed and were assured that said defendants would properly care 16 for the Decedent, and would provide him with needed services and assistance, by: 17 (a) Following, implementing, and adhering to all physician orders; 18 (b) Protecting the Decedent from sustaining injuries to his person; 19 (c) Monitoring and accurately recording the Decedent’s condition, and notifying his 20 attending physician and family members of any meaningful change in his condition; 21 (d) Establishing and implementing a patient-care plan for the Decedent, based upon an 22 ongoing process of identifying his health needs and making sure that such needs were timely met; 23 (e) Accurately monitoring and providing for the Decedent’s health, comfort, and safety; 24 (f) Maintaining accurate records of the Decedent's condition and activities; 25 (g) Handling, moving, and transferring the Decedent, when necessary, in a safe and 26 careful 27 manner; 28 (h) Providing the Decedent with appropriate medical and nursing care; Complaint for Damages Page 7 (i) Maintaining trained, qualified, and licensed nursing and other staffing at levels adequate to meet the Decedent's needs; (Gj) Providing sufficient supervision to the Decedent, a vulnerable patient, to ensure her safety; and, (k) Treating the Decedent with dignity and respect, and without abuse. 34. In owning, operating, controlling, managing, and/or supervising the subject facility, defendants, and each of them, held themselves out, to the general public and to the Decedent and his family members, as being in compliance with all applicable federal and state laws. Said defendants, though, knew that the facility was not designed, administered, or funded to comply with their legal 10 responsibilities to provide adequate care to the residents. 11 35. The subject facility was advertised and represented by defendants, and each of them, to be 12 a facility which provided skilled nursing care and services for the benefit of elders and dependent adults, 13 many of whom were known to be on extremely poor health and condition. 14 36. Atall times herein mentioned, many of the residents of the facility, including the 15 Decedent, were relatively helpless, non-ambulatory, infirm, disabled, frail, vulnerable, and/or completely 16 dependent individuals, in constant need of adequate and reasonable care and services. 17 37. Prior to and up to July 7, 2003, defendants, through members of said defendants' senior 18 management staff, including defendants DOES 51-100, inclusive, intentionally and deliberately 19 conceived, developed, and implemented a plan to wrongfully increase the business profits, at the expense 20 of residents such as the Decedent. Integral to this plan was the practice and pattern of staffing facility 21 with an insufficient number of care personnel, many of whom were not properly trained and qualified. 22 This "understaffing" plan, which was designed and established to reduce labor costs and to increase 23 profits, resulted in the physical abuse and neglect of many residents, including the Decedent. 24 25 26 27 28 Complaint for Damages Page 8 EEE EE Oe 38. At all times herein mentioned, defendants, and each of them, knew that, as a consequence of the plan described in the preceding paragraph, their skilled nursing facilities (including the subject facility) were not designed, administered, or funded to comply with legal responsibilities to provide care to residents. Rather, said defendants knew, or should have known, that this plan was designed to circumvent their legal duties to satisfy applicable statutes and regulations, so as to wrongfully maximize the business profits. Such knowledge was exclusively in the possession of said defendants, and neither the Decedent nor his family members possessed such knowledge or had an opportunity to obtain the true information while the Decedent resided at the subject facility. 39. The harm and damage caused by the above-described "understaffing" plan has manifested 10 itself in many ways within said defendants’ skilled nursing facilities, including, but not limited to, the 11 following: From an unknown time prior to June 20, 2003, until June 20, 2003, defendants failed to 12 administer sufficient water to the Decedent, and failed to monitor his intake of water, so that, on June 20, 13 2003, he was taken from the skilled nursing facility to Kaiser Hospital suffering from severe dehydration 14 and renal failure, which caused the Decedent extreme physical pain and anguish. The Decedent was able 15 to recover sufficiently from this episode of dehydration so that, on June 25, 2003, he was released from 16 Kaiser Hospital and transferred back to defendants' skilled nursing facility. 17 40. The harm and damage caused by the above-described “understaffing" plan also manifested 18 itself as follows: On or about July 6, 2003, plaintiff PATRICIA BEGGS visited the Decedent in his 19 room at the subject facility. She observed that the Decedent’s feeding tube had been removed, and she 20 complained to an unidentified member of the nursing staff. One or more of the Decedent’s nurses, herein 21 identified as Does 51 through 60, an each of them, inserted the Decedent’s NG tube. Defendant DOE 51 22 documented in her notes that she resumed tube feeding of the Decedent at 5:15 PM and that he tolerated 23 his feeding well and did not require suctioning. Plaintiffs are informed and believe, and thereon allege, 24 that on or about July 7, 2003, one or more unidentified members of the nursing staff, herein identified as 25 DOES 51 - 60, and each of them, reinserted the Decedent's NG tube. On or about July 7, 2003, the 26 Decedent’s speech therapist who was working with the Decedent that day for swallowing, asked one or 27 more members of the nursing staff to check the Decedent because he was grossly unresponsive and 28 because there was a deterioration in his normal condition. No member of the nursing staff took any Complaint for Damages Page 9 a ee action. Plaintiff is informed and believes, and thereon alleges, that at approximately 4:00 PM on July 7, 2003, the Decedent began to experience severe difficulties in breathing, and he was making groaning and gurgling sounds. The Decedent’s roommate called for assistance of the nursing staff. Plaintiffis informed and believes, and thereon alleges, that from approximately 4:00 PM to approximately 10:20 PM on July 7, 2003, the Decedent was worked on continuously by unidentified members of the nursing staff, who repeatedly suctioned the Decedent to remove fluids that were being secreted through the Decedent’s mouth, without removing the NG tube or stopping his feeding through the NG tube. Plaintiffs are informed and believe, and thereon allege, that the Decedent was in severe physical pain and agony during this time, and that the defendants failed to take any steps to relieve his pain and suffering. These 10 unidentified members of the nursing staff failed to call the Decedent’s physician, nor did they assess the 11 need to stop the tube feeding in light of the increased need for suctioning. Nor did any member of the 12 nursing staff confirm placement of the NG tube after all of these suctioning events. At approximately 13 10:40 PM on July 7, 2003, an unidentified member of the nursing staff telephoned plaintiff PATRICIA 14 BEGGS to report that the Decedent was unresponsive and having difficulty breathing, and asking her 15 what to do. Plaintiff BEGGS told the nursing staff to telephone the paramedics so that the Decedent 16 could be taken to Kaiser Hospital. The paramedics transported the Decedent to Kaiser Hospital in 17 Fremont, California, where he arrived at approximately 11:00 PM on July 7, 2003. X-Rays taken by 18 Kaiser showed that the feeding tube had perforated the Decedent’s esophagus and the end of the tube had 19 been placed into the right lower bronchial lobe of the Decedent’s lungs, which had filled with fluid. The 20 Alameda County Coroner’s Bureau determined that the cause of death was cardiorespiratory failure due to 21 aspiration of foreign material due to endotracheal placement of the nasogastric tube. 22 41. Said defendants have compounded the harm and damage resulting from their 23 "understaffing" plan by intentionally, willfully, and / or recklessly misrepresenting the causes and 24 contributory conditions of the inadequate care rendered to the Decedent to third parties, such as the 25 Alameda Coroner's Bureau, state regulators and investigators, and members of the Decedent's family; and 26 by intentionally, willfully, and /or recklessly instructing staff to reword, modify, rewrite and / or destroy 27 reports and other documents concerning the inadequate care rendered to the Decedent, in order to conceal 28 Complaint for Damages Page 10 EEE the fact that the facility's untrained staff and / or understaffed conditions caused or contributed to the Decedent's injuries and death as alleged hereinabove. 42. Asaproximate result of defendants’ continuing pattern of tortuous misconduct as alleged hereinabove, the Decedent suffered from the following damages, for which plaintiffs, as his successor in interest, are seeking compensation herein: Severe personal injuries, including severe dehydration on or about June 20, 2003, and aspiration of foreign material due to endotracheal placement of his NG tube on or about July 7, 2003, thereby resulting in severe physical pain and suffering, as well as severe mental and| emotional distress, all to the Decedent's damage in a sum that will be proven at trial; medical and incidental expenses; death; and funeral and related expenses, in a sum subject to proof at trial. 10 43. At all times mentioned herein, defendant HELIOS and DOES 1 through 50, and each of ii them, knew of the need to comply with the laws applicable to the ownership, operation, management, and 12 / or supervision of skilled nursing facilities, and further knew that non-compliance with such laws would 13 put the health and welfare of the residents, including the Decedent, unreasonably at risk. Said defendants 14 also knew that the continual failure or refusal to discharge their duties to the Decedent would likely result 15 in injury and / or death to him. 16 44, The conduct of said defendants, as alleged hereinabove, constitutes "physical abuse" and 17 "neglect" as those terms are defined in Welfare and Institutions Code Sections 15610.63 and 15610.57, in 18 that the defendants failed to exercise the degree of care that a reasonable person having the custody of the 19 Decedent would exercise. Furthermore, the continuing pattern of elder abuse, as alleged hereinabove, was 20 in accordance with the above-described plan of the defendants to staff their skilled nursing facility at 21 inadequate levels, so as to wrongfully maximize their business profits. 22 45. Because the above-described conduct of the defendants HELIOS and DOES 1 through 50, 23 and each of them, was a direct consequence of their motive and plan to elevate profits above patient care, 24 said defendants are guilty of malice, fraud, recklessness, and oppression in the commission of the abuse 25 alleged herein. Thus, under Welfare and Institutions Code Section 15657(a) - (b), and said defendants are 26 liable to plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors in interest for the 27 benefit of the beneficiaries of the Hubert A. Dougherty Living Trust, for damages related to personal 28 injury, medical expenses, and incidental expenses, and death, plus attorneys’ fees and costs. Furthermore, Complaint for Damages Page 11 an a said defendants are liable to plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors in interest for the benefit of the beneficiaries of the Hubert A. Dougherty Living Trust, for treble damages, pursuant to Civil Code Section 3345. 46. The acts and omissions of the defendants, and each of them, as set forth above, were in all respects malicious, oppressive, fraudulent, or reckless and manifested conscious disregard or contempt for| the rights of the Decedent. Plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors in interest for the benefit of the beneficiaries of the Hubert A. Dougherty Living Trust, are thereby also entitled to an award of punitive and exemplary damages, attorneys' fees, and post-death general damages pursuant to Welfare & Institutions Code § 15657, in an amount according to proof at trial. 10 FOURTH CAUSE OF ACTION 11 NEGLIGENT INFLICTION OF SEVERE EMOTIONAL DISTRESS 12 (On Behalf Of Plaintiffs PATRICIA BEGGS, Individually, and 13 KATHLEEN NAKASHIMA, Individually) 14 47. Paragraphs 12 through 16, above, are incorporated herein as if fully set forth below. 15 48. Plaintiffs PATRICIA BEGGS and KATHLEEN NAKASHIMA were present with the 16 Decedent in the emergency room at Kaiser Hospital on the night of July 7, 2003 and in the early morning 17 of July 8, 2003, and personally attended to the Decedent and was with him up until the time the Decedent 18 expired. As a result, plaintiff suffered severe emotional distress, including, but not limited to, shock, 19 fright, anxiety, nervousness, sleeplessness, nightmares, nausea, and grief. 20 49. Asaresult of the conduct of the defendants, and each of them, in causing injury and death 21 to the Decedent, which was contemporaneously observed by plaintiffs PATRICIA BEGGS and defendant 22 KATHLEEN NAKASHIMA, plaintiffs have suffered general damages, subject to proof at trial. 23 24 WHEREFORE, plaintiffs pray judgment against the defendants, and each of them, jointly and severally, 25 as follows: 26 1. ON THE FIRST AND SECOND CAUSES OF ACTION, in favor of Plaintiffs PATRICIA 27 BEGGS, MARGARET A. MATTHEWS, and KATHLEEN NAKASHIMA, individually: 28 A. For economic damages, including medical and funeral expenses, according to proof; Complaint for Damages Page 12 DEE EE EEE OL a B. For non-economic damages for plaintiffs’ loss of the Decedent's companionship, comfort, society, solace, and moral support, according to proof; C. For pre-judgment interest allowable by law; D. For costs of suit incurred herein; E. For such other and further relief as the Court may deem just and proper. 2. ON THE THIRD CAUSE OF ACTION, in favor of plaintiffs PATRICIA and MICHAEL BEGGS, as the Decedent's successors in interest and for the benefit of the beneficiaries of the Hubert A. Dougherty Living Trust: A. For economic damages, including medical and funeral expenses, according to proof; 10 B. For general damages as compensation for the Decedent's pain and suffering, pursuant to 11 Welfare & Institutions Code § 15657; 12 C. For attorneys’ fees and costs of suit herein, according to proof, pursuant to Welfare & 13 Institutions Code § 15657; 14 D. For treble damages, pursuant to Civil Code Section 3345; 15 E. For pre-judgment interest allowable by law; 16 F, For punitive and exemplary damages in an amount sufficient to punish and deter against 17 similar conduct in the future; and, 18 G. For such other and further relief as the Court may deem just and proper. 19 3. ON THE FOURTH CAUSE OF ACTION, on behalf of plaintiffs PATRICIA BEGGS and 20 KATHLEEN NAKASHIMA, individually: 21 A. For non-economic damages as compensation for her severe emotional distress, according 22 to proof; 23 B. For pre-judgment interest allowable by law; 24 C. For costs of suit incurred herein; 25 D. For such other and further relief as the Court may deem just and proper. 26 27 28 Complaint for Damages Page 13 EEX ae DATED: November 1, 2004 THE LAW OFFICES OF PAUL L. GUMINA, P.C. Paul U. Gumina, Esq. Attorney for Plaintiffs PATRICIA AND MICHAEL BEGGS, MARGARET A. MATTHEWS KATHLEEN NAKASHIMA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for Damages Page 14 Ee