Grancare v. Horton CA2/1

Filed 5/31/13 Grancare v. Horton CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GRANCARE, LLC, B241363

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC450260)
v.

MARK B. HORTON et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara
M. Scheper, Judge. Affirmed.
______
Hooper, Lundy & Bookman, Scott J. Kiepen, Matthew Clark and Katrina A.
Pagonis for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Senior Assistant
Attorney General, Jennifer M. Kim and Betty Chu-Fujita, Deputy Attorneys General, for
Defendants and Respondents.
______
 Grancare, LLC, doing business as Arbor View Rehabilitation and Wellness Center
(Arbor View), appeals from the judgment entered after a bench trial in which the trial
court concluded that Arbor View had committed a regulatory violation and upheld a
$100,000 civil penalty. On appeal, Arbor View contends that the decision resulted from
the improper application of statutory presumptions against it. We disagree and thus
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Citation
On July 28, 2009, the Department of Public Health (Department) issued a
class “AA” citation and assessed a $100,000 penalty against Arbor View, a
long-term health care facility in Santa Monica.1 According to the citation, Arbor
View “failed to implement its policy and current nursing procedure [pursuant to
California Code of Regulations, title 22, section 72523, subdivision (c)(2)(A) (section
72523, subdivision (c)(2)(A))] to ensure Patient . . . [,] who was fed by a gastrostomy
tube[,] . . . received treatment and services to prevent the dislodged tube and fluids from
going into the abdominal cavity.” “Patient . . . had a percutaneous endoscopic
gastrostomy tube . . . inserted on August 29, 2008. On September 8, 2008, while

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Under the classification of citations against long-term health care facilities, class
“B” violations are those “that the state department determines have a direct or immediate
relationship to the health, safety, or security of long-term health care facility patients or
residents, other than class „AA‟ or „A‟ violations. Unless otherwise determined by the
state department to be a class „A‟ violation . . . , any violation of a patient‟s rights as set
forth in Sections 72527 and 73523 of Title 22 of the California Code of Regulations, that
is determined by the state department to cause or under circumstances likely to cause
significant humiliation, indignity, anxiety, or other emotional trauma to a patient is a
class „B‟ violation.” (Health & Saf. Code, § 1424, subd. (e).) Class “A” violations are
those that “the state department determines present either (1) imminent danger that death
or serious harm to the patients or residents of the long-term health care facility would
result therefrom, or (2) substantial probability that death or serious physical harm to
patients or residents of the long-term health care facility would result therefrom.”
(Id. at § 1424, subd. (d).) Class “AA” violations are those “that meet the criteria for a
class „A‟ violation and that the state department determines to have been a direct
proximate cause of death of a patient or resident of a long-term health care facility.”
(Id. at § 1424, subd. (c).)

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[residing at Arbor View], the tube was dislodged and was reinserted incorrectly by [a
licensed vocational nurse]. A computed tomography scan dated September 9, 2008,
indicated the tube went into the abdominal cavity and not in the stomach causing
inflammation of the lining of her abdominal cavity. The patient died on October 24,
2008 and the death certificate revealed the immediate cause of death was arterioscierotic
cardiovascular disease with the significant condition of peritonitis following
malpositioning of the gastrostomy tube.” The Department concluded that Arbor View‟s
violation of its policy “was a direct proximate cause of death of Patient . . . .”
2. Arbor View’s Complaint
On November 24, 2010, after pursuing without success administrative review
of the citation, Arbor View filed a complaint against the Department and Mark Horton,
the director of the Department, pursuant to Health and Safety Code section 1428,
subdivision (b), which provides for judicial review of class “AA” or “A” citations and
gives the trial court authority to “affirm, modify, or dismiss the citation, the level of the
citation, or the amount of the proposed assessment of the civil penalty.” Arbor View
alleged that the Department had issued the class “AA” citation “without cause or
justification” and that the citation “has no basis under the provisions of Health and Safety
Code [s]ection 1424, is invalid, and should be dismissed and/or reduced. In the
alternative, [Arbor View] request[ed] that the citation level and/or the proposed civil
penalties be reduced according to proof.” Arbor View claimed that the cited violation of
section 72523, subdivision (c)(2)(A), “did not occur” and that, even assuming a violation,
“the incident in question did not meet the criteria for a [c]lass „AA‟ citation” and that
Arbor View “did what might reasonably be expected of a long-term health care facility
licensee, acting under similar circumstances, to comply with the regulations.”
3. The Trial Court’s Decision and Judgment
On February 10, 2012, following a four-day bench trial, the trial court announced
its tentative decision to dismiss Arbor View‟s complaint and uphold the citation. After
the filing of a proposed statement of decision and objections thereto, the court issued a
statement of decision on March 23, 2012, adhering to its tentative decision to dismiss the

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complaint and uphold the citation. The court determined that the Department had met its
burden to prove (1) a violation, (2) the violation met the criteria for the class of citation
alleged and (3) the assessed penalty was appropriate. The court also concluded that
Arbor View had not established in response that it did what might reasonably be expected
of a facility acting under similar circumstances.
As to the violation, the trial court concluded that Arbor View had violated
section 72523, subdivision (c)(2)(A). The court found that “the only policy produced
to the court or the Department relevant to [the patient‟s] case relates to re-insertion of a
G-tube when the tract is three months old or older. Accordingly it would appear that
Arbor View had no policy or procedure addressing re-insertion of G-tubes less than
three months old. Yet the evidence was undisputed that G-tubes frequently fall out
especially when they are immature. Having no policy to address this common occurrence
would therefore be a violation of the Code of Regulations. [¶] Alternatively, since the
policy specifically does not discuss re-insertion of G-tubes at bedside when the tract is
less than three months old, the court can infer that such a procedure is prohibited—
„expression unius est exclusio alterius.‟ [¶] Finally, if the policy is found to cover
[the patient‟s] situation, it was grossly violated. The evidence established that
[the licensed vocational nurse], not a registered nurse and lacking the necessary skills
training, re-inserted the G-tube and did not properly verify placement. Arbor View
argued that in fact [the supervising] registered nurse . . . conducted the re-insertion and
verified the placement and that [the licensed vocational nurse] also verified the
placement. [¶] Since these alleged actions are not recorded in [the patient‟s] medical
records, as required, it is presumed [pursuant to Health and Safety Code section 1427]
that this care was not provided. . . . The court finds that Arbor View has utterly failed to
rebut this presumption since [its] witnesses lack credibility and [its] version of events is
simply not plausible.” (Footnote omitted.)
The court then determined that the violation warranted a class “AA” citation and
that the assessed penalty was appropriate. The court based its determination on expert
opinion, corroborated by the autopsy and death certificate, that improper placement of

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the gastrostomy tube by “unqualified staff who failed to verify placement” caused the
patient‟s death. “Either Arbor View failed to have a policy addressing a common
occurrence or the policy it had was violated. If Arbor View had a policy to address [the
patient‟s] situation or if its personnel had followed the policy it had and properly verified
placement of the G-tube, [the patient] would not have died. And clearly [the patient]
was among the class of persons for whose protection the regulation was adopted.”
“In addition to the known serious risk to the patient due to violating the patient care
policy, . . . Arbor View had [28] complaints and three [c]lass B citations over the period
2006 through 2008.”
As to Arbor View‟s contention that it had acted reasonably under the
circumstances, the court disagreed. “Based on the evidence . . . , the court finds that
the G-tube was re-inserted by an untrained, unqualified [licensed vocational nurse],
who may or may not have communicated all the pertinent patient information
to the on-call doctor; the placement was not properly verified and the patient was
not monitored after the re-insertion.” “Perhaps most disturbingly, there was no
documentation whatsoever regarding [the patient‟s] condition between the end of
[the licensed vocational nurse‟s] shift at 11:00 [p.m.] on September 8 and 5:00 [p.m.]
on September 9.”
The trial court entered judgment in favor of the Department and an order of
dismissal of Arbor View‟s complaint. Arbor View filed a timely notice of appeal.
DISCUSSION
1. The Citation and Penalty Assessment Procedure for Long-term Health Care
Facilities
The Long-term Care, Health, Safety, and Security Act (Act) (Health & Saf. Code,
§ 1417 et seq.) establishes “a citation system for the imposition of prompt and effective
civil sanctions against long-term health care facilities in violation of the laws and
regulations of this state, and the federal laws and regulations as applicable to nursing
facilities . . . relating to patient care[.]” (Id. at § 1417.1.) “[T]he legislation was designed
to provide an inspection and reporting system to ensure that long term health care

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facilities provide safe and effective care, and to establish a system for penalizing
violations of the laws and regulations.” (Beach v. Western Medical Enterprises, Inc.
(1981) 116 Cal.App.3d 153, 161.) “The Act‟s provisions are designed to implement the
Legislature‟s declared public policy objective of „[en]sur[ing] that long-term health care
facilities provide the highest level of care possible.‟” (Kizer v. County of San Mateo
(1991) 53 Cal.3d 139, 143, quoting Health & Saf. Code, § 1422, subd. (a).)
“Health and Safety Code section 1424 provides that long-term health care facility
licensees, including operators of nursing homes, may receive citations for violations of
state and federal statutes and regulations, and that such citations may include the
imposition of civil monetary penalties.” (California Association of Health Facilities v.
Department of Health Services (1997) 16 Cal.4th 284, 288, footnote omitted.) “„While
the civil penalties may have a punitive or deterrent aspect, their primary purpose is to
secure obedience to statutes and regulations imposed to assure important public policy
objectives. [Citations.] The focus of the Act‟s statutory scheme is preventative.”
(Id. at pp. 294-295.) “As a remedial statute, [Health and Safety Code] section 1424 is to
be liberally construed on behalf of the class of persons it is designed to protect[,] . . . one
of the most vulnerable segments of our population, „nursing care patients . . . who are
already disabled by age and infirmity,‟ and hence in need of the safeguards provided by
state enforcement of patient care standards. [Citations.]” (Id. at p. 295.)
To challenge a class “AA” citation, as the Department issued in this case, the
licensee, after certain administrative procedures, may file a civil action. (Health & Saf.
Code, § 1428, subd. (b).) In such an action, the Department must prove by a
preponderance of the evidence that (1) the alleged violation did occur, (2) the alleged
violation met the criteria for the class of citation alleged, and (3) the assessed penalty was
appropriate. (Id. at § 1428, subd. (e).) “The [D]epartment shall also have the burden of
establishing by a preponderance of the evidence that the assessment of a civil penalty
should be upheld.” (Ibid.) Regarding causation, the Department must prove: “(1) The
violation was a direct proximate cause of death of a patient or resident”; “(2) The death
resulted from an occurrence of a nature that the regulation was designed to prevent”;

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and “(3) The patient or resident suffering the death was among the class of persons for
whose protection the regulation was adopted.” (Id. at § 1424, subd. (c).) “If the . . .
[D]epartment meets this burden of proof, the licensee shall have the burden of proving
that the licensee did what might reasonably be expected of a long-term health care facility
licensee, acting under similar circumstances, to comply with the regulation. If the
licensee sustains this burden, then the citation shall be dismissed.” (Ibid.) “When the
administration of medications, treatments, or other care is not recorded, as required by
law, in the health care record for a patient of a long-term health care facility, it shall
be presumed that the required medication, treatment, or care has not been provided.
(Id. at § 1427, subd. (a).) “The presumption . . . may be rebutted by a licensee only upon
a showing of a preponderance of the evidence.” (Id. at § 1427, subd. (b).)
In the event the Department meets its burden of proof and the licensee fails in
response to demonstrate reasonable conduct, the trial court evaluates the amount of the
civil penalty based on “all relevant facts . . . , including, but not limited to, . . . : [¶]
(1) The probability and severity of the risk that the violation presents to the patient‟s or
resident‟s mental and physical condition. [¶] (2) The patient‟s or resident‟s medical
condition. [¶] (3) The patient‟s or resident‟s mental condition and his or her history of
mental disability or disorder. [¶] (4) The good faith efforts exercised by the facility to
prevent the violation from occurring. [¶] (5) The licensee‟s history of compliance with
regulations.” (Health & Saf. Code, § 1424, subd. (a).)
2. The Citation and Penalty Assessed Against Arbor View
In this case, the Department cited Arbor View for a violation of section 72523,
subdivision (c)(2)(A), which provides that “[e]ach facility shall establish and implement
policies and procedures, including but not limited to” “[n]ursing services policies and
procedures[,] which include” “[a] current nursing procedure manual.” The trial court
upheld the citation on three alternative grounds: (1) Arbor View had no policy in its
nursing procedure manual for reinsertion of a gastrostomy tube in place for less than
three months; (2) Arbor View‟s policy for reinsertion of a gastrostomy tube in place for
more than three months, with the absence of a policy for reinsertion of a gastrostomy tube

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in place for less than three months, by implication meant that nurses were prohibited
from reinserting a gastrostomy tube in place for less than three months; and (3) even if
Arbor View could be viewed as having a policy for reinsertion of a gastrostomy tube in
place for less than three months, it failed to implement that policy because a licensed
vocational nurse without the requisite training or experience reinserted the patient‟s
gastrostomy tube and any further actions alleged by Arbor View to have been taken were
not recorded in the patient‟s record and thus presumed to not have occurred. Arbor View
contends that none of these alternative grounds supports the citation and that, even if a
violation were established, the Department failed to prove a causal link between the
violation and the patient‟s death. We disagree.
With respect to reinsertion of gastrostomy tubes, Arbor View‟s policy provided
that “[g]astrointestinal tubes are changed/reinserted, per physician‟s order, in residents
with established tracts (in place 3 months or more) in order to maintain patency for
nutritional maintenance.” “A licensed nurse performs this procedure only after attending
an educational program for licensed nurse[s] with skills validation and permitted by state
specific nurse practice act.” Verification of proper gastrostomy tube position must be
performed “after initially placing the tube[,]” “at least every 4-6 hours for continuous
feeding” and “before accessing tube for feeding, medications, or hydration.” Tube
position must be verified by a combination of three methods, consisting of physical
assessment, aspiration of gastric contents, pH testing of gastric contents, auscultation
and radiologic confirmation. “If unsure, always contact the physician to confirm by
radiography (x-ray) or fluoroscopy.” The nurse must document the “tube type, size
and amount of cc‟s water/saline inserted in balloon,” the “insertion date and time,” the
“removal date and time, and” the “condition of stoma site/surrounding skin.”2
According to the evidence, as the trial court found, this policy was not
implemented in the reinsertion of the gastrostomy tube for the patient at issue in
the citation. The documentation in the patient‟s medical record from Arbor View

2
Arbor View does not contend that its policy with respect to reinsertion of
gastrostomy tubes exceeded the minimum regulatory requirements.

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regarding reinsertion of the gastrostomy tube was written by a licensed vocational nurse,
who reported: “Placed call to M.D. and spoke with [doctor] who gave new order to
reinsert new gastrostomy tube, 20 french. Placement of G-tube checked and verified.”
No evidence indicated that the licensed vocational nurse had “attend[ed] an educational
program for licensed nurse[s] with skills validation and permitted by state specific nurse
practice act[,]” as required by Arbor View‟s policy, and thus possessed the required
skills to reinsert a gastrostomy tube, much less one in place for only 10 days. At trial,
the licensed vocational nurse testified that, at the time the patient‟s 10-day-old
gastrostomy tube was reinserted, she had never seen one of her nursing supervisors
reinsert a 10-day-old tube. She also did not recall whether she knew a clinical distinction
existed between a new gastrostomy tube in place for only 10 days and an established tube
in place for three months or more. She also was not aware that Arbor View‟s policy
required three verification methods and further did not know that the original gastrostomy
tube was two millimeters smaller than the one reinserted at Arbor View. And, according
to expert testimony produced by the Department, the amount of tube feeds found in the
patient‟s peritoneum indicated that placement of the gastrostomy tube was not checked
and verified in the 16 hours after reinsertion of the tube upon her receipt of medication
and food through the tube. As a result, Arbor View violated its policy by having
unqualified personnel reinsert the tube and by giving the patient food and medicine
through the tube in the 16 hours after reinsertion without checking and verifying its
placement.
Arbor View contends that the trial court found a violation by misapplying the
presumption in Health and Safety Code section 1427, subdivision (a), which allegedly
resulted in the improper shifting of the Department‟s burden of proof. That contention
lacks merit. The presumption in Health and Safety Code section 1427, subdivision (a),
applies absent the recording of treatment or other care as required by law. As noted,
despite the requirement in Arbor View‟s policy for checking and verification of
gastrostomy tube “at least every 4-6 hours for continuous feeding” and “before accessing
tube for feeding, medications, or hydration[,]” no documentation in the patient‟s medical

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record indicated such checking and verification was performed in the 16 hours after
reinsertion of the tube before the patient was transferred to the emergency room and the
displaced tube was discovered. In addition, although a registered nurse from Arbor View
testified that he, rather than the licensed vocational nurse, reinserted the gastrostomy
tube, his involvement was not documented in the patient‟s medical record.3 And he
conceded that he did not record his involvement, even though he was aware the
presumption in Health and Safety Code section 1427, subdivision (a), applied when
treatment is not documented in a patient‟s medical record. Based on the absence of
documentation in the patient‟s medical record, the court justifiably applied the
presumption to conclude Arbor View had not provided the care required by its policy as
support for its finding of a violation.4
Given a violation, the evidence also supports the trial court‟s causation
determination. The Department presented expert testimony that the failure to verify
placement of the gastrostomy tube before accessing it led to serious complications and
that the patient‟s death could have been prevented if the tube had been properly placed
and verified or if displacement had been determined before administering food and
medication through the tube. At the emergency room, tests revealed “„massive‟”
amounts of tube feeds in the patient‟s peritoneum and a dislodged gastrostomy tube.
The surgical note indicated “„extensive ascites and feeds throughout the entire abdominal
cavity.‟” The patient had emergency surgery as a life-saving measure to ameliorate the
condition. After the surgery, the patient remained in critical condition but passed away

3
The trial court also found that the registered nurse was not credible. And Arbor
View did not demonstrate that the registered nurse had the skills required by its policy to
reinsert a 10-day-old gastrostomy tube. He even testified that he did not know the
patient‟s tube had been in place for only 10 days.
4
Because we agree with the trial court‟s determination of a violation based on
Arbor View‟s failure to implement its nursing policy, we need not address whether the
violation is supported by the other two alternative grounds, namely that Arbor View
lacked a policy for reinsertion of a gastrostomy tube in place for less than three months
and that its nursing procedure manual prohibited reinsertion of a gastrostomy tube in
place for less than three months.

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18 days later. The patient‟s death certificate lists “peritonitis following malpositioning of
gastrostomy” as a “significant condition[] contributing to death.” This evidence
demonstrates that Arbor View‟s violation of section 72523, subdivision (c)(2)(A),
requiring implementation of a nursing procedure manual, was a direct proximate cause of
the patient‟s death and that “[t]he death resulted from an occurrence of a nature that the
regulation was designed to prevent.” (See Health & Saf. Code, § 1424, subd. (c)(2).)
And the patient, a resident of Arbor View, plainly “was among the class of persons for
whose protection the regulation was adopted.” (Id. at § 1424, subd. (c)(3).)
DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their costs on
appeal.
NOT TO BE PUBLISHED.

ROTHSCHILD, J.
We concur:

MALLANO, P. J.

JOHNSON, J.

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