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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

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

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
 

About the Author

Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.


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