Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/wrongful death case and its proceedings.)
Abuse of an elder or a dependent adult is defined in Section 15610.07 as “physical abuse, neglect, fiduciary abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services necessary to avoid physical harm or mental suffering.”
In Mack v. Soung (2000) 80 Cal.App.4th 966, the court explained what a plaintiff must plead under the Act to show willful misconduct under the “recklessness” prong for heightened remedies:
Recklessness refers to 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. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a 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.” (Id. at 972.)
In Delaney v. Baker (1999) 20 Cal.4th 23, the neglect was on the part of a skilled nursing center, where the allegations were that an elderly resident developed stage IV bedsores as a result of the facility’s rapid turn-over of nursing staff, staffing shortages, and the inadequate training of employee [s] …, and that there were violations of medical monitoring and record keeping, preventing necessary information from being transmitted to [the resident’s] personal physician on a timely basis.
The court held that the allegations in the complaint that the facility neglected its residents as a result of its desire to maximize profits (as evidenced by staffing shortages, rapid turnover and inadequate training)alleged reckless neglect on the part of the nursing home sufficient to support a claim of elder abuse. (Id. at 27-28.)
Here, plaintiffs’ first cause of action for elder abuse alleges both the specific acts of neglect and also defendants’ state of mind- recklessness, willfulness, and malice. Plaintiffs allege that the corporate owners of Universal Care adopted common practices of underbudgeting, understaffing, undertraining the facility that resulted in injury to Mr. Brown in the form of medications errors ( missed Procrit injections, missed doses of other medications), overdoses of medication (overdose of Zyprexa, resulting in his pain, suffering, and death), failure to protect him from health and safety hazards (falls), refusal to let him have a Geri chair ordered by nurse for his comfort and safety, failure to monitor changes in his condition, and asking him to move from the facility and initiating eviction proceedings after he was injured because of defendants’ lack of care and his daughter’s complaints about defendants’ lack of care . Plaintiffs also alleged that Mr. Brown suffered from budget cuts made to the facility that affected the food he was given, the cleanliness of the facility, and the activities of the facility. (See Part 4 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.