Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical malpractice case and its proceedings.)
Plaintiffs’ Fail to Sufficiently Allege Claims of Reckless Neglect of an Elder
For purposes of the Elder Abuse Act, “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.” Oppression, fraud and malice involve intentional or conscious wrongdoing of a despicable or injurious nature. Sababin v. Superior Court (App. 2 Dist. 2006) 50 Cal.Rptr.3d 266, 271. 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 or action … with knowledge of the serious danger to others involved in it.” Mack v. Soung (App. 3 Dist. 2000) 95 Cal.Rptr.2d 830, 834.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In the case at hand, without any facts to support conduct beyond alleged mere professional negligence, Plaintiffs boldly allege: Defendants’ acts and omissions as alleged above constitute neglect, as defined in Welfare and Institutions Code § 15610.57, and were done with malice, oppression, fraud and/or recklessness within the meaning of Welfare and Institutions Code § 15657. While, at first glance, this may appear sufficient to state a claim for reckless neglect of an elder, warranting punitive damages under the Elder Abuse Act, the acts and omissions as alleged above fail to provide any specific facts to sufficiently allege that reckless neglect did in fact occur.
Plaintiffs allege that Defendants collectively had a duty to use ordinary care and comply with the applicable laws and regulations. (Complaint, 3:20-23) They allege that Defendants had a non-delegable duty to regularly monitor [decedent’s] physical and mental condition. (Complaint, 4:3-4) According to the Complaint, these duties were breached when Defendants failed to do these things. However, even if all of these things were true, as the Court must assume for purposes of this demurrer, Plaintiffs are simply alleging professional negligence. (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.