(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
Pursuant to Intrieri v. Superior Court, an Elder Abuse Cause of Action Cannot be Disposed of in the Pleading Phase Where There is a Mere Inference of Reckless Conduct.
In Intrieri v. Superior Court of Santa Clara County (2004) 117 Cal.App.4th 72, the Court held that the mere inference that the defendant had consciously disregarded a resident’s safety raised a triable issue of fact concerning the reckless neglect element of an elder abuse claim.
In Intrieri, supra, a skilled nursing facility had on numerous occasions failed to take any action to address a resident’s pressure sores. It made no changes to the resident’s care plan even after complaints by the resident’s son, and further failed to follow a new care plan developed by an outside physician hired by the resident’s son. The infection of the pressure sores that resulted eventually led to amputation of the resident’s right toe, and thereafter her right leg below the knee. The Court held that it may be reasonably inferred from this chain of events that the defendant acted with reckless neglect in caring for the resident, and overturned a grant of summary judgment on the elder abuse cause of action.
Although Intrieri, supra, is a holding that governs the court’s review on summary judgment motions, it is argued that summary judgment motions are held to a higher standard of review. If the plaintiff in opposing a motion for summary judgment need only show a mere inference even after discovery has been conducted, then the Plaintiffs in opposing a Demurrer should not be held to a higher standard and be required to make its case in the Complaint. The Plaintiffs need only plead sufficient facts to put the Defendants on notice of an elder abuse cause of action against them, and be allowed to proceed through discovery to make its case.
As alleged in the Plaintiffs’ Complaint, during the decedent’s admission into Doctor’s Medical Center from January 3, 2006 to January 31, 2006, the Defendant prescribed Primaxin, an antibiotic, to the decedent to treat his E. Coli infection. On January 6, 2006, a lab culture was taken of the decedent and showed that he was sensitive to antibiotics. This was also brought to the doctor’s attention when the decedent’s son visited his father on January 6, 2006 and noticed that his father had developed rashes all over his body.
On January 6, 2006, Dr. Smith noted in his chart that the decedent had developed an allergic reaction to the Primaxin, but instead of discontinuing the Primaxin, Dr. Smith ordered Benadryl be given 30 minutes prior to the Primaxin and continued the decedent on Primaxin. (See Part 5 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.