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

Signs and Symptoms of Elder Abuse

Posted on by

infections and bed sores in the elderlySigns and symptoms of Elder Abuse

At first, you might not recognize or take seriously signs of elder abuse.  They may appear to be symptoms of dementia or signs of the elderly person’s frailty — or caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so.

General signs of abuse

The following are warning signs of some kind of elder abuse:

  • Frequent arguments or tension between the caregiver and the elderly person
  • Changes in personality or behavior in the elder

If you suspect elderly abuse, but aren’t sure, look for clusters of the following physical and behavioral signs.

Physical abuse

  • Unexplained signs of injury such as bruises, welts,  or scars, especially if they appear symmetrically on two side of the body
  • Broken bones, sprains, or dislocations
  • Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should)
  • Broken eyeglasses or frames
  • Signs of being restrained, such as rope marks on wrists
  • Caregiver’s refusal to allow you to see the elder alone

Emotional abuse

In addition to the general signs above, indications of emotional elder abuse include:

  • Threatening, belittling, or controlling caregiver behavior that you witness
  • Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to oneself

Sexual abuse

  • Bruises around breasts or genitals
  • Unexplained venereal disease or genital infections
  • Unexplained vaginal or anal bleeding
  • Torn, stained, or bloody underclothing

Neglect by caregivers or self-neglect

  • Unusual weight loss, malnutrition, dehydration
  • Untreated physical problems, such as bed sores
  • Unsanitary living conditions: dirt, bugs, soiled bedding and clothes
  • Being left dirty or unbathed
  • Unsuitable clothing or covering for the weather
  • Unsafe living conditions (no heat or running water;  faulty electrical wiring, other fire hazards)
  • Desertion of the elder at a public place

Financial exploitation

  • Significant withdrawals from the elder’s accounts
  • Sudden changes in the elder’s financial condition
  • Items or cash missing from the senior’s household
  • Suspicious changes in wills, power of attorney, titles, and policies
  • Addition of names to the senior’s signature  card
  • Unpaid bills or lack of medical care, although the elder has enough money to pay for them
  • Financial activity the senior couldn’t have  done, such as an ATM withdrawal when the account holder  is bedridden
  • Unnecessary services, goods, or subscriptions

Healthcare fraud and abuse

  • Duplicate billings for the same medical service or device
  • Evidence of over medication or under medication
  • Evidence of inadequate care when bills are paid in full
  • Problems with the care facility: poorly trained, poorly paid, or insufficient staff; crowding; inadequate responses to questions about care

– from Steven Peck, Senior Attorney at Peck Law Group
 

Does A Criminal Act Affect Liability Claims?

Posted on by

Broken WindshieldIs Rock Throwing a Criminal Act Worthy of a Liability Claim?

The primary issue concerning the question of whether the criminal nature of rock-throwing affected the foreseeability requirement for plaintiffs’ strict products liability claims. Plaintiffs argued that the criminality of the rock throwing did not require a different standard of foreseeability than if the rock had been cast negligently or by an act of nature. The same standard of foreseeability for strict products liability applies to the risk of the harm, regardless of the source of the risk.

Like truck brakes, windshields on big rig trucks must be designed in anticipation of common road hazards. The very purpose of a windshield is to protect occupants of a motor vehicle from the elements and road debris.

So long as the road hazard is reasonably foreseeable, the manufacturer must take steps to address common risks caused by negligent drivers, debris thrown into roads by acts of nature, and even third-party criminal acts.  In the case of a rock hitting a windshield, liability for a defective design does not depend on whether the projectile falls from a rock outcropping, passing gravel truck, or the hands of a juvenile delinquent. A windshield is not any less defective because it is pierced by an intentionally, rather than an unintentionally, thrown rock.

To deny recovery to an injured user of an otherwise defective product simply because a common road hazard was caused by criminal behavior would negate the manufacturers’ duty to design products to account for reasonably foreseeable risks. “[i]n some cases, intentional torts or criminal acts may be foreseeable and, therefore, within the scope of the risk defendant created, and in such a case the defendant may still be liable for the harm to the plaintiff resulting from the intentional or criminal act.” Strict products liability does not depend on the criminal or noncriminal nature of the source of the risk but on its foreseeability.

Foreseeability is ordinarily a question of fact for the jury. “It may be decided as a question of law only if, `under the undisputed facts there is no room for a reasonable difference of opinion.'”  Here, it is a question for the trier of fact whether the object in this case — specifically a 2.5 pound chunk of concrete — is a reasonably foreseeable road hazard for a big rig truck to encounter. As the record shows, the frequency of such a road hazard was a contested fact. Thus, we cannot state as a matter of law how heavy, sharp, or large an object the manufacturer must account for in designing windshields.

A vehicle manufacturer’s duty to consider reasonably foreseeable risks does not mean it must design its products “to be built like tanks, with an armored plate instead of a glazing windshield and a periscope to provide visibility,”  It is well established that a manufacturer may defeat liability by showing “the benefits of the . . . design outweigh the risk of danger inherent in such design . . . .”

– from Steven Peck, Senior Attorney at Peck Law Group
 

To Sustain an Elder Abuse Claim, Read the Pleading Requirements

Posted on by

infections and bed sores in the elderlyWhat Are The Pleading Requirements To Sustain An Elder Abuse Cause of Action in the State of California? The Pleading Requirements to Assert a Violation of the Elder Abuse Act

The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who proves abuse of a person that is 65 years of age or older. (Welf. & Inst. Code, §§ 15610.27, 15657.) A plaintiff must prove by “clear and convincing evidence” that a defendant is liable for physical abuse, neglect, or financial abuse (as defined by the Elder Abuse Act) and the defendant acted with “recklessness, oppression, fraud, or malice” while committing the abuse. (Welf. & Inst. Code, §15657.)

Neglect, as defined in the Elder Abuse Act, includes the failure “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, failure to assist in personal hygiene or in the provision of food; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration. (Id., subd. (b).) 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.) Thus, acts of negligence in the rendition of medical services are not governed by the Elder Abuse Act. (Delaney v. Baker (1999) 20 Cal.4th 23, 34.)

Recklessness is not defined in the Elder Abuse Act, but in this context it is “a subjective state of culpability greater than simple negligence, which has been described as a `deliberate disregard’ of the `high degree of probability’ that an injury will occur[.]” (Delaney v. Baker, supra, 20 Cal.4th at p. 31.) “Recklessness, unlike negligence, involves more than `inadvertence, incompetence, unskillfulness, or failure to take precautions’ but rather rises to the level of a `conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ [Citation].” (Id. at pp. 31-32.)

To recover for enhanced remedies under the Elder Abuse Act from an employer for the acts of one or more employees, a plaintiff must plead and prove facts that would permit imposition of punitive damages against an employer pursuant to Civil Code section 3294, subdivision (b). (Welf. & Inst. Code, § 15657, subd. (c).) Civil Code section 3294 imposes punitive damages on a corporate employer if (1) “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others”; or (2) the employer “ratified the wrongful conduct”; and (3) the conduct described above was “on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

The court in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, reviewed the cases applying the foregoing legal principles as construed in case law to determine the pleading requirements sufficient to state a cause of action for a violation of the Elder Abuse Act. The plaintiff must allege facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult,” including nutrition, hydration, hygiene, or medical care; “(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”; and “(3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain . . . or with conscious disregard of the high probability of such injury . . . .” (Id. at pp. 406-407.) The plaintiff must also allege that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering, and the causal link between the neglect and injury must be specifically alleged. (Id. at p. 407.)

– from Steven Peck, Senior Attorney at Peck Law Group
 

Older posts
Newer posts