Beach v. Western Medical Enterprises, Inc.

Opinion

Western Medical Enterprises appeals from a judgment enforcing civil penalties assessed by respondent Director of the State Department of Health under terms of the Long-Term Care, Health, Safety, and Security Act of 1973. (Health & Saf. Code, § 1417 et seq.)

Appellant operates Driftwood Convalescent Hospital, which houses an average of 96 patients needing skilled nursing care. Some patients are ambulatory, some are confined to wheelchairs, and some are semi-comatose.

Class “A” Citation

The State Department of Health is required to inspect twice each year every facility covered by the act. (Health & Saf. Code, § 1422.) In

Sufficiency of the Evidence

Respondent’s representative, Stovall, testified that he issued a class “A” citation for the failure of the hallway call lights because of a statutory requirement for a working nurses’ call system, including a hallway call light outside each patient’s room (Cal. Admin. Code, tit. 22, § 72629, subd. (a).) Appellant contends that the evidence does not support a class “A” violation and, further, that sections 72702 and 1424, subdivision (a) do not mandate a class “A” violation, but instead require a more serious threat to the health and safety of the patients than was present in this case. Appellant argues that respondent offered no evidence as to the condition of the patients in rooms where the hallway lights were not functioning, and ignored the actual condition of the patients, some of whom were ambulatory and some of whom were semi-comatose, when determining that the violation warranted a class “A” citation. Further, appellant argues that respondent should have considered the fact that the communication system between the patients and the nurses’ station was working.

Appellant also challenges the trial court’s findings of fact, complaining that the court made no findings to indicate that the more likely consequence of the violation was death or serious physical harm to a patient, or that there was a substantial probability of any type of serious physical harm to any of the patients as a result of the nonfunctioning hallway call lights.

This court in St. Joseph held that ‘“imminent danger’” means an immediate threat of injury to the patient, and that the danger must be “‘serious’” in nature. (106 Cal.App.3d at p. 552.) The court also referred to the need for an examination of the facts of the case: “Whether a given set of facts produces an imminent danger of serious harm to patients and guests is a question of fact, as well as one of degree. Both the term ‘imminent’ and the implied requirement of ‘severity’ involve questions of degree. Inquiry into ‘degree’ is inherent in any statute which creates a hierarchy of offenses.” (Id., at p. 552.)

Appellant points out that Stovall knew nothing of the condition of the patients in the rooms with nonfunctioning hallway call lights. Appellant argues that because some of the patients were ambulatory and the others were semicomatose, there was no need for call lights. But section 72629, subdivision (a) requires a functioning communication system in each patient’s room, and does not limit the requirement to patients with certain physical conditions. (See fn. 1.) There is a strong possibility that elderly patients, even when ambulatory, whose health requires their confinement in a health care facility may at any time require emergency care. Also, patients who are semicomatose may at any time have similar emergency needs, and others who are present should be able to call for help in their behalf.

Next, appellant argues that because the call system to the main nurses’ station was working, the nonfunctioning hallway call lights did not present an imminent danger to the patients in the four rooms. This argument could be persuasive if appellant could show that the nurses’ station was monitored at all times. But Stovall testified that the nurses’ station was unattended for portions of the day. Thus the patients in the four rooms were at times without an adequate call system. It is reasonable to infer that a risk of harm is inherent in a situation where a

Appellant argues that because no serious consequences resulted to the patients, the violation was not of a class “A” nature. But the legislation was designed to provide an inspection and reporting system to ensure that long term health care facilities provide safe and effective care, and to establish a system for penalizing violations of the laws and regulations. (Health & Saf. Code, § 1417.1.) There is no requirement that death or serious physical harm actually result before a citation may be issued.

Finally, appellant argues that the findings of the trial court do not support a class “A” citation. The court made a finding that the hall signal lights were inoperable. That finding was of ultimate fact. It supports the court’s conclusion of law imposing a class “A” penalty.

Appellant challenges the class “B” citation on three grounds. Appellant contends first that the regulation is unconstitutionally vague and that its enforcement thus denies due process; second, that no evidence shows the regulation was in fact violated; third, that the time respondent allowed for correction of the violation was impossible to meet.

Due Process

The class “B” citation alleges that appellants violated California Administrative Code, title 22, section 72325, subdivision (a), which requires that “Equipment and supplies of the quality and in the quantity necessary for care to patients, as ordered or indicated, shall be provided . .. (See fn. 2, ante.) Appellant contends that the regulation did not provide adequate notice of prohibited conduct and failed to establish a standard of conduct which could be uniformly interpreted by the judiciary and administrative agencies.

Although the regulation does not specify types and amounts of equipment needed, it does require equipment and supplies in amount and type, as indicated, to provide proper patient care. Respondent’s representative, Ferguson, is a registered nurse and licensed hospital administrator. She testified that requirements regarding decubitus preventive equipment are determined by the standards of the nursing

Appellant further argues that because no citation for failure to have decubitus preventive equipment was issued during the July inspection when the facility had the same equipment in use, the regulation fails to set forth a standard that can be uniformly applied. The fact that an inspector does not detect or cite a deficiency does not entitle a licensee to maintain the deficiency if it is later detected and cited. Appellant’s contention that the regulation is unconstitutionally vague is without merit.

Sufficiency of the Evidence

During the December inspection, a staff member provided Ferguson with a list of approximately 41 decubitus and decubitus-prone patients, 9 of whom had developed ulcers in the hospital. Accompanied by staff members, Ferguson inspected these patients, giving particular attention to their physical condition, the preventive equipment in use, and where appropriate, their medical records. Subsequently, she discussed with a staff member certain patients who needed additional preventive equipment. The staff member indicated that although the hospital was aware of the need for additional preventive equipment, and had ordered such equipment the previous week, all preventive equipment presently in the hospital was in use. Ferguson also discussed with the administrator of the hospital the shortage of equipment and the type of equipment the hospital needed in order to be in compliance.

Appellant argues that no violation of section 72325 existed because at trial Ferguson failed to identify any patient who lacked equipment ordered by the patient’s physician or by any other licensed health care professional. However, the regulation refers to equipment “necessary for care to patients, as ordered or indicated.” (Italics add

At trial, to show the impossibility of obtaining the preventive equipment within the time allowed, the hospital administrator testified that truck strikes and bad weather in the east had delayed arrival of the equipment. He also testified about his unsuccessful attempts to get equipment from other hospitals.

Ferguson testified that she specified 15 working days for correction of the violation because the hospital had been without the equipment for a considerable time, the equipment was necessary for prevention of decubitus ulcers, and 15 days seemed adequate for obtaining the equipment. She further testified that she made no determination whether or not it was possible to get the equipment within that period.

Appellant contends that section 72715, subdivision (2) requires respondent to base the time for correction on the availability of the equipment. The regulation does direct the department to consider such factors, but also provides that the violation be eliminated within “[t]he earliest feasible time,” and that “[s]uch time shall be the shortest possible time within which the licensee reasonably can be expected to correct the alleged violation.” (Cal. Admin. Code, tit. 22, § 72715, subd. (d)(2); see fn. 5.)

Testimony at trial concerned conditions (strikes and weather) responsible for the delay in obtaining preventive equipment. Even if these unforeseen conditions contributed to the delay and therefore to appellant’s continuing penalty, they were unknown to Ferguson and allowance for them was not required. In addition, a staff member told Ferguson that the equipment shortage had existed for a period of time, and had been reported to hospital administrators. Given those facts and a statutory direction that the violation be corrected within the shortest possible time, the trial court was justified in concluding that Ferguson reasonably found 15 working days provided appellant with adequate time to obtain the equipment.

Appellant contends that the entire act is unconstitutional in that it penalizes licensees charged with violations of the act for exercising their statutory and constitutional rights to contest their alleged liability.

Costs are allowed of course in an action for the recovery of money or damages. (Code Civ. Proc., § 1032, subd. (a).) Respondent’s complaint sought an award of money and the judgment granted that award. No other relief is legally permitted to respondent in such an action. (Health & Saf. Code, § 1417 et seq.) Though section 1032, subdivision (a) does not mention statutory civil penalties, because this action seeks to recover money, it falls within the general category. One court rejected an attempt to limit the coverage of section 1032, subdivision (a): “Thus, one should not read into the statute allowing costs a restriction which has not been placed there.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256 , 263 [ 155 Cal.Rptr. 516 ].) Here, as in Rappenecker, appellant has not shown legislative intent to exclude the challenged costs. Section 1032, subdivision (a) controls, and section 1032, subdivision (c) does not apply.

Appellant’s alternative argument with respect to section 1032, subdivision (a) is unclear. Appellant seems to be saying that the causes of action are unrelated to each other, legally and factually, and therefore costs should be apportioned between the parties. The evidence does not support this contention. The causes of action arose from appellant’s violations of the act in the operation of its health care facility, and are thus related. In addition, appellant cites section 1032, subdivision (a) in its claim for apportionment of costs, yet section 1032, subdivision (a) does not refer to apportionment.

Majority of Issues

Second, appellant contends that because appellant prevailed at trial on some of the issues, costs must be apportioned. Case law is contrary to this contention. Where two causes of action are at issue, and a judgment results for the plaintiff on one issue and for the defendant on the other, plaintiff has a judgment in his favor and is entitled to costs, whether the recovery be for the whole or part of the claim, or whether the claim is made up of one or several causes of action. (Western Concrete Structures Co. v. James I. Barnes Constr. Co. (1962) 206 Cal.App.2d 1 , 11 [ 23 Cal.Rptr. 506 ].) Therefore, though appellant pre

The judgment is affirmed.

Caldecott, P. J., and Poché, J., concurred.