Skip to main content

phoneFREE CASE EVALUATION (866) 999-9085

Author Archives: Adam Peck

 About Adam Peck

Adam J. Peck, ESQ is a principal with Peck Law Group, APC. In 2008, Mr. Adam Peck received his Juris Doctorate from Whittier Law School where he graduated Cum Laude. His practice is primarily dedicated to representing Elders, Dependent Adults, along with their loved ones and family members, who have suffered horrific personal injuries.
Older posts
Newer posts

Facts concerning Decubitus Ulcers, California Regulations, and Nursing Standards of Practice concerning Nursing Homes

Posted on by

FACTS  REGARDING DECUBITI

  1. Pathophysiology: any force that compresses tissue or causes a shearing motion and friction to the skin can disrupt the skin’s microcirculation. The resulting ischemia leads to inflammation and tissue anoxia followed by cell death, necrosis, and ulceration.
  2. The hip and buttocks region account for 67% of all pressure sores; the sacrum is one of the most common locations.
  3. The Braden Scale is a validated tool used to assess a patient’s risk of developing a pressure ulcer by examining six criteria: sensory perception, moisture, activity, mobility, nutrition and friction and shear. Each category is rated on a point scale, combining for a possible total of 23 points. An adult with a score below 18 is considered to have a HIGH RISK for developing a pressure ulcer. 
  4. Decubiti are often fatal and are one of the leading iatrogenic causes of death reported in developed countries, second only to adverse drug reactions. Some complications include sepsis, gangrene, renal failure and amyloidosis.
  5. Any patient who is bedridden or cannot move due to diabetes, circulation problems, incontinence or mental disabilities should be checked for pressure sores everyday

REGULATIONS GOVERNING NURSING HOMES

California Code of Regulations (CCR) Title 22 Social Security Division 5Licensing and Certification of Health Facilities, Home Health Agencies, Clinics and Referral Agencies Chapter 3 Skilled Nursing Facilities  pertinent to this case: section 72315 Nursing Service- Patient Care  (f) Each patient shall be given care to prevent formation and progression of decubiti, contractures and deformities. Such care shall include:

  1. Changing position of bedfast and chairfast patients with preventative skin care in accordance with the needs of the patient.
  2. Encouraging, assisting and training in self-care and activities of daily living.
  3. Maintaining proper body alignment and joint movement to prevent contractures and deformities.
  4. Using pressure-reducing devices where indicated.
  5. Providing care to maintain clean, dry skin free from feces and urine.
  6. Changing of linens and other items in contact with the patient, as necessary, to maintain a clean, dry skin free from feces and urine.
  7. Carrying out of physician’s orders for treatment of decubitus ulcers. The facility shall notify the physician, when a decubitus ulcer first occurs, as well as when treatment is not effective, and shall document such notification as required in Section 72311(b). Code of Federal Regulations (CFR) Title 42 Public Health Chapter 4 Centers for Medicare & Medicaid Services, Department of Health and Human Services Subchapter G Standards and Certification Part 483 Requirements for States and Long Term Care Facilities pertinent to this case:
    • Quality of Care – Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.
    • Pressure sores – Based on the comprehensive assessment of a resident, the facility must ensure that:
      1. a resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and
      2. a resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

Nursing Standards of Practice (Standards of Care)

  1. Standards are authoritative statements by which the nursing profession describes the responsibilities for which its practitioners are held accountable.
  2. Federal and state laws, rules and regulation and other professional agencies/organizations help define standards of practice. The American Nursing Association (ANA) and Joint Commission on Accreditation of Healthcare Organizations (JCAHO) have established nationally recognized standards of care which can hold nurses accountable, regardless of their area or state of practice.
  3. According to standards of care, a licensed nurse shall, in a complete, accurate and timely manner, report and document nursing assessments or observations, the care provided by the nurse for the client, and the client’s response to that care. Nurses assume a liability risk if they fail to monitor a patient or to recognize changes in a patient’s condition. Failure to recognize the significance of changes or to communicate them clearly and promptly to the attending practitioner could endanger the patient.
  4. Any nurse who does not meet accepted standards of care runs a risk of being found negligent. Standards of care may serve as guidelines when evaluating nursing care for possible negligence.
  5. Society holds nurses and those under their supervision accountable for their actions. The nurse is responsible and accountable for the quality of nursing care given to clients.

The PECK LAW GROUP specializes in personal injury matters relating to Serious and Catastrophic Injury, Nursing Home Abuse and Neglect, Bed Sores, Decubitus Ulcers, and Pressure Sores, Medical Malpractice, Surgery Errors, Traumatic Brain Injury, Birth Injury and Wrongful Death that are determined to be a breach of the standard of care.  Our experts and our attorneys have superior knowledge and know-how in handling these type of matters from inception to Trial if need be.  You will receive superior representation and, of course, the best possible result based upon our know-how and expertise.

Call us Now.  THE PECK LAW GROUP In Southern California at (818) 908-0509; In Northern California at (925) 808-5708; or all across the United States toll-free at (866) 999-9085

– from Steven Peck, Senior Attorney at Peck Law Group
 

In the State of California: Nursing Home Elder Abuse and Neglect Must Be Pled with Specificity says California Long Term Care Litigation Lawyer Steven Peck

Posted on by

The Elder Abuse Act in California

The Elder Abuse Act defines abuse as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst. Code, § 15610.07, subd. (a), italics added); or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (id., § 15610.07, subd. (b)).

The Act defines neglect as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a)(1).)

Neglect includes, but is not limited to, all of the following:

  1. Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
  2. Failure to provide medical care for physical and mental health needs. . . .
  3. Failure to protect from health and safety hazards.
  4. Failure to prevent malnutrition or dehydration.” (Id., § 15610.57, subd. (b).)

In short, neglect as a form of abuse under the Elder Abuse Act refers “to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” (Delaney v. Baker (1999) 82 Cal.Rptr.2d 610, 971 P.2d 986] (Delaney).)

Thus, when the medical care of an elder is at issue, “the statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 783 [11 Cal.Rptr.3d 222, 86 P.3d 290] (Covenant Care); see also id. at p. 786 [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs.”].)

To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider’s care or custody of the elder. (Welf. & Inst. Code, § 15657.2; Delaney, supra, 20 Cal.4th at p. 32; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88 [50 Cal.Rptr.3d 266] (Sababin).)

The plaintiff must prove “by clear and convincing evidence” that “the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of” the neglect. (Welf. & Inst. Code, § 15657.) Oppression, fraud and malice “involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.” (Delaney, at p. 31.) Recklessness involves “‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur” and “rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.'” (Id. at pp. 31-32.)

Thus, the enhanced remedies are available only for “‘acts of egregious abuse’ against elder and dependent adults.” (Id. at p. 35; see also Covenant Care, supra, 32 Cal.4th at p. 786 [“statutory elder abuse may include the egregious withholding of medical care for physical and mental health needs . . .”].) In short, “[i]n order to obtain the Act’s heightened remedies, a plaintiff must allege conduct essentially equivalent to conduct that would support recovery of punitive damages.” (Covenant Care, at p. 789.)

Examples of cases involving conduct sufficiently egregious to warrant the award of enhanced remedies under the Elder Abuse Act include the following:

  • A skilled nursing facility:
    1. failed to provide an elderly man suffering from Parkinson’s disease with sufficient food and water and necessary medication;
    2. left him unattended and unassisted for long periods of time;
    3. left him in his own excrement so that ulcers exposing muscle and bone became infected; and
    4. misrepresented and failed to inform his children of his true condition. (Covenant Care, supra, 32 Cal.4th at p. 778.)
  • An 88-year-old woman with a broken ankle “was frequently left lying in her own urine and feces for extended periods of time” and she developed pressure ulcers on her ankles, feet and buttocks that exposed bone, “despite plaintiff’s persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman.” (Delaney, supra, 20 Cal.4th at pp. 27, 41.)[ 198 Cal.App.4th 406 ]
  • A facility caring for a dependent adult with a known condition causing progressive dementia, requiring nutrition and hydration through a gastrostomy tube, and subjecting her to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult’s skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed. (Sababin, supra, 144 Cal.App.4th at pp. 83-87, 90.)
  • A 78-year-old man admitted to a skilled nursing facility “was abused, beaten, unlawfully restrained, and denied medical treatment.” (Smith, supra, 133 Cal.App.4th at p. 1512.)
  • The staff of a nursing home:
    1. failed to assist a 90-year-old, blind and demented woman with eating;
    2. used physical and chemical restraints to punish the elder and prevent her from obtaining help; and
    3. physically and emotionally abused the elder by bruising her, “withholding food and water, screaming at her, and threatening her.” (Benun v. Superior Court (2004) 123 Cal.App.4th 113, 116-117 [20 Cal.Rptr.3d 26] (Benun).)
  • A skilled nursing facility:
    1. failed to provide adequate pressure relief to a 76-year-old woman with severe pain of her left leg and identified as at high risk for developing pressure ulcers;
    2. dropped the patient;
    3. left “her in filthy and unsanitary conditions”; and
    4. failed to provide her the proper diet, monitor food intake and assist her with eating. (Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430, 434-435 [15 Cal.Rptr.3d 315].)
  • A physician “conceal[ed] the existence of a serious bedsore on a nursing home patient under his care, oppose[d] her hospitalization where circumstances indicate[d] it [was] medically necessary, and then abandon[ed] the patient in her dying hour of need.” (Mack v. Soung (2000) 80 Cal.App.4th 966, 973 [95 Cal.Rptr.2d 830] (Mack).)

From the statutes and cases discussed above, we distill several factors that must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant:

  1. had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b); Delaney, supra, 20 Cal.4th at p. 34);
  2. knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs (Sababin, supra, 144 Cal.App.4th at pp. 85, 90; Benun, supra, 123 Cal.App.4th at p. 116; Mack, supra, 80 Cal.App.4th at pp. 972-973); and
  3. denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) (Welf. & Inst. Code, §§ 15610.07, subd. (b), 15610.57, subd. (b), 15657; Covenant Care, supra, 32 Cal.4th at pp. 783, 786; Delaney, at pp. 31-32).
  4. The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Welf. & Inst. Code, §§ 15610.07, subds. (a), (b), 15657; Perlin, supra, 163 Cal.App.4th at p. 664; Berkley, supra, 152 Cal.App.4th at p. 529.)
  5. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims. (Covenant Care, at p. 790.)

The PECK LAW GROUP specializes in personal injury matters relating to Serious and Catastrophic Injury, Nursing Home Abuse and Neglect, Bed Sores, Decubitus Ulcers, and Pressure Sores, Medical Malpractice, Surgery Errors, Traumatic Brain Injury, Birth Injury and Wrongful Death that are determined to be a breach of the standard of care.  Our experts and our attorneys have superior knowledge and know how in handling these type of matters from inception to Trial if need be.  You will receive superior representation and of course the best possible result based upon our know how and expertise.

Call us Now.  THE PECK LAW GROUP In Southern California at (818) 908-0509; In Northern California at (925) 808-5708; or all across the United States toll free at (866) 999-9085

– from Steven Peck, Senior Attorney at Peck Law Group
 

Causes of Action for General Negligence and Premises Liability Against A Health Care Provider Are Deemed Ordinary Negligence Not Professional Negligence

Posted on by

Flores, a patient, sued the Hospital for general negligence and premises liability. Flores pled she injured her left knee and elbow when the bed rail collapsed, causing Flores to fall to the floor. The trial court held the action was time-barred.

Is Premises Liability Malpractice or Negligence?

For purposes of determining the applicable statute of limitations, the essential issue presented is whether Flores’s lawsuit arose out of professional malpractice or ordinary negligence. The trial court ruled the action arose out of the alleged “professional negligence” of a health care provider, so as to be subject to the one-year statute of limitations (Code Civ. Proc., § 340.5) imposed by the Medical Injury Compensation Reform Act of 1975 (MICRA) (Stats. 1975, 2d Ex. Sess., ch. 1, § 25, pp. 3969-3970, ch. 2, § 1.192, pp. 3991-3992).

Based on a survey of case law and statutory analysis, we conclude Flores’s action sounded in ordinary negligence, so as to be governed by the two-year statute applicable to personal injury actions. (§ 335.1.) Therefore, Flores’s lawsuit was filed timely.

On March 2, 2011, Flores filed suit against the Hospital, pleading causes of action for general negligence and premises liability.

The Hospital demurred, contending that although Flores labeled her causes of action as “general negligence” and “premises liability,” the action sounded in “professional negligence” and therefore was barred by the one-year statute of limitations. (§ 340.5.) The Hospital reasoned, “the alleged negligence was an integral part of the professional services being rendered to plaintiff. Plaintiff was under the care of [the Hospital] and her alleged injuries occurring in the [H]ospital. Any purported claim is for medical negligence.”

In her opposition papers, Flores asserted this was a case of ordinary negligence, not professional negligence. Here, “no negligence was committed in assessing the condition of Plaintiff and in failing to raise the side rails. That medical assessment had already been made and a medical decision to raise the side rails had been made. As such, . . . there was no professional negligence. It was only after the rendition of all professional services (i.e., the assessment of Plaintiff’s condition and medical decision to employ side rails), and after the side rails had been negligently latched, that those side rails collapsed, injuring Plaintiff.”

The matter came on for hearing. The trial court sustained the Hospital’s demurrer to the original complaint without leave to amend. The trial court reasoned: “To decide whether an action arises out of the professional negligence of a health care provider, the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided.’ [Citation.] The Court looks not at the degree of skill involved, but whether such skill is an integral part of the professional service being rendered. [Citations.] . . . [T]he hospital here has a duty to recognize the condition of patients under its care and to take appropriate measures for their safety.’

Flores contends her action is governed by the two-year statute of limitations applicable to personal injury actions per CCP 335.1, rather than the one-year statute of limitations per CCP 340.5 applicable to medical malpractice actions. California Personal Injury Lawyer Steven Peck and the California appellate court agree.

Section 340.5, MICRA’s limitations provision, states in pertinent part:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (§ 340.5, italics added.)

Section 340.5 neither deals with, nor defines, ordinary negligence. It defines “professional negligence” as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury . . . , provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (§ 340.5, subd. (2), italics added.)

Section 335.1, which is outside MICRA, is the statute on which Flores relies. Section 335.1 is the limitations period for personal injury actions, i.e., ordinary negligence. It states:

Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” (Ibid., italics added.)4

Because the limitations period differs depending upon the characterization of the alleged negligence, the essential issue presented is whether Flores’s fall from a hospital bed constituted professional negligence or ordinary negligence. If the complaint sounds in professional negligence, it would be barred by the one-year limitations period of section 340.5. Conversely, if the complaint sounds in ordinary negligence, this action would be governed by the two-year limitations period of section 335.1 and therefore would be timely.

“[I]t is recognized that the dividing line between ‘ordinary negligence’ and ‘professional malpractice’ may at times be difficult to place . . . Gopaul,  38 Cal.App.3d at p. 1007.)

Nonetheless, the instant fact situation is easily distinguished from the five California cases discussed above, arising out of patient falls from beds or gurneys. All those cases involve injury to a patient resulting from the failure to properly secure or supervise the patient while on a hospital bed or gurney.

  • In Gin, although the side rails were raised, a confused patient who was not properly medicated and was unsupervised, fell while attempting to climb out at the foot of the bed. (Gin, supra, 249 Cal.App.2d at p. 779.)
  • In Gopaul, a patient fell after being left unattended on a gurney, to which she had not been strapped. (Gopaul, supra, 39 Cal.App.3d at p. at p. 1004.)
  • In Murillo, the bedrails were left down during the night and the patient fell out of bed. (Murillo, supra, 99 Cal.App.3d at pp. 53, 56.) In Flowers, the nurse raised only the far side railing of the gurney and the patient fell off the gurney. (Flowers, supra, 8 Cal.4th at p. 995.)
  • Finally, in Bellamy, the patient fell after being left unattended on a rolling X-ray table which had not been secured. (Bellamy, supra, 50 Cal.App.4th at p. 799.)

Here, in contrast, as alleged in the complaint, the patient was injured “when the bed rail collapsed causing plaintiff to fall to the ground injuring her left knee and elbow.” (Italics added.) Thus, Flores does not allege the Hospital was negligent in failing to elevate the bed rails or in otherwise failing to supervise or secure her. Rather, Flores alleges she was injured by an equipment failure, i.e., a collapsed bed rail.

The alleged negligence is the Hospital’s failure “to use reasonable care in maintaining [its] premises and fail[ing] to make a reasonable inspection of the equipment and premises, which were open to Plaintiff and the public, and fail[ing] to take reasonable precautions to discover and make safe a dangerous condition on the premises.” As set forth ante, the discrete issue presented is whether these allegations by Flores, involving a collapsed bed rail, sound in ordinary negligence or professional negligence.

In the era of MICRA, the controlling language is found in the statutory definition of professional negligence, which focuses on whether the negligence occurred in the rendering ofprofessional services. To reiterate, for purposes of section 340.5,”professional negligence” is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services . . . .” (§ 340.5, subd. (2), italics added.)5

Clearly, there is a dichotomy between ordinary negligence and professional negligence, with MICRA only governing the latter type of negligence. However, the statutory definition of professional negligence is less than clear. Therefore, the courts have grappled with whether a given fact situation constitutes ordinary negligence or professional malpractice.

We conclude the instant fact situation, consisting of a collapsed bed rail, does not constitute professional negligence. The test under section 340.5 is whether “‘the negligent act occurred in the rendering of services for which the health care provider is licensed.'”

(Bellamy, 50 Cal.App.4th at p. 806.) For example, in Bellamy, the patient “was injured either in preparation for, during, or after an X-ray exam or treatment.”

The Court rejected Murillo‘s dictum that a negligently maintained, unsafe condition of a hospital’s premises which causes injury to a patient falls within professional negligence. Injury to a patient from a fallen chandelier, or from a negligently maintained bed rail which collapses, does not amount to professional negligence within the meaning of section 340.5. To reiterate, “not every tortious injury inflicted upon one’s client or patient or fiducial beneficiary amounts to [professional] malpractice.” (Gopaul, supra, 38 Cal.App.3d at p. 1006; accord, Murillo, supra, 99 Cal.App.3d at p. 56; Bellamy, supra, 50 Cal.App.4th at p. 803.) The critical inquiry is whether the negligence occurred in the rendering of professional services. ( § 340.5, subd. (2); Bellamy, supra, 50 Cal.App.4th at pp. 805-806.)

The appellate Court ruled that based upon  Flores’s complaint, which alleged she was injured “when the bed rail collapsed causing plaintiff to fall to the ground,” sounds in ordinary negligence because the negligence did not occur in the rendering of professional services. As pled in the operative complaint, the alleged negligence was the Hospital’s failure “to use reasonable care in maintaining [its] premises and fail[ing] to make a reasonable inspection of the equipment and premises, which were open to Plaintiff and the public, and fail[ing] to take reasonable precautions to discover and make safe a dangerous condition on the premises.” Therefore, the action is governed by the two-year statute of limitations (§ 335.1), making the lawsuit timely.

The PECK LAW GROUP specializes in personal injury matters relating to Serious and Catastrophic Injury, Nursing Home Abuse and Neglect, Bed Sores, Decubitus Ulcers, and Pressure Sores, Medical Malpractice, Surgery Errors, Traumatic Brain Injury, Birth Injury and Wrongful Death that are determined to be a breach of the standard of care.  Our experts and our attorneys have superior knowledge and know how in handling these type of matters from inception to Trial if need be.  You will receive superior representation and of course the best possible result based upon our know how and expertise.

Call us Now.  THE PECK LAW GROUP In Southern California at (818) 908-0509; In Northern California at (925) 808-5708; or all across the United States toll free at (866) 999-9085

– from Steven Peck, Senior Attorney at Peck Law Group
 

Older posts
Newer posts