Articles Posted in Elder Abuse

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Tax reform, healthcare and the debt ceiling have been at the top of the agenda for Congress. However, consumer activists and Democratic lawmakers are serving notice of their intent to continue protecting the right of people to sue nursing homes for abuse and neglect of the elderly patients in their care since the Trump administration plans to rollback legal rights for people to sue nursing homes Obama put in place.

Under the Obama administration’s plan, nursing homes which receive federal funding, which is most, were prohibited from requiring all disputes, including neglect and abuse, to be addresses through a mandatory arbitration as opposed to the legal system.

During the August recess, 31 senators wrote to the Centers for Medicare and Medicaid Services (CMS) provisions in their contracts for mandatory arbitrations. Lawmakers stressed that forced arbitration stacks the deck against the residents and their loved ones. Residents face a wide array of potentially harmful activity. Physical abuse and neglect, as well as sexual abuse and wrongful death at the hands of nursing home staff are top among the atrocities residents can possibly face.

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An Arroyo Grande nursing home, Casa Rosa Elder Care, is being sued after a 91 year old patient, Claire Trubo, fell and called for help for nearly three hours as she lay battered, bruised and bleeding, before the nursing home attendant woke from a nap and came to her assistance. The suit claims the nursing home is understaffed due to their placing money above patient care in their priority list.

Arroyo Grande-California-Nursing-Home-SuedThe trouble started in October of 2013 when Ms. Trubo was first admitted to the elder care facility. The staff was made aware at that time of the patients need to be assisted to and from the bathroom. In an instance prior to the fall, the nursing home neglect lawsuit cites she was escorted to the bathroom, only to be left for over 20 minutes before being escorted back. When she brought the matter to the attention of authority, she was told to use the bathroom, i.e. defecate and urinate, in her bed and wait to be cleaned up.  Administration was involved at that point and Ms. Rosa’s family was assured the behavior was unacceptable and would not happen again.

On a separate occasion, two days later, Ms. Trubo rang her buzzer but received no assistance. She waited an additional 20 minutes before walking to the bathroom alone, making it without incident. She used the bathroom and then pulled the assistance chain next to the toilet. Again, she waited 20 minutes without assistance or recognition. She attempted to walk back to her bed without assistance when she fell. With no handrail to grasp and too far from the assistance chain, she yelled for assistance. It was three hours before assistance arrived.

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The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this big rig accident lawsuit and its proceedings.)

CLAIMED INJURIES

According to Defendant: Death.

CLAIMED DAMAGES

According to Defendant: Plaintiffs did not claim any economic damages. Plaintiffs’ attorney argued for approximately $1.7 million for loss of comfort, society, companionship, etc.

SETTLEMENT DISCUSSIONS

According to Defendant: Plaintiffs demanded $1 million from all defendants. Defendants offered, pursuant to CCP § 998, a waiver of costs in exchange for a dismissal.

COMMENTS

According to Defendant: Judge granted a nonsuit to all defendants on the “Elder Abuse” cause of action after plaintiffs rested. However, he did allow plaintiffs to amend their complaint to conform to proof to allege “medical battery” against Dr. Haim only. However, he also ruled that he would not allow an allegation of entitlement to punitive damages. The patient’s grandson, son of plaintiff Sasha Jimerson, was his caregiver. He was being paid by “In Home Social Services” for the care and often would leave decedent for days on “paydays.” There had been multiple visits to the home by Adult Protective Services (“APS”), but no charges were brought. Dr. Reason became aware (after the patient’s admission to ABC) of the investigation and was interviewed by detectives before the patient died. The patient’s entire family, including Sasha Jimerson, was implicated. After the patient died, APS declared the death a coroner’s case and advised Dr. Reason not to sign a death certificate or otherwise indicate a cause of death in the hospital chart. After autopsy, the coroner declared the death a “homicide” and opined that, although the patient died from complications of hip surgery, that would not have occurred had he not been abused by his caregiver.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this big rig accident lawsuit and its proceedings.)

Defendant Haim adamantly denied he ever promised the patient he would walk again. Instead, he documented that the surgery was for relief of pain, which was likely going to continue without repair of the hip. On the afternoon of February 17, 2007, he noted the hematologist had ordered the patient to have nothing by mouth after midnight and that his blood should be typed and cross-matched for two units of blood for typical replacement after surgery. He interpreted these orders as “clearance” for the surgery. He hoped to improve the patient’s quality of life by eliminating pain during movement. He operates very frequently on Sundays on elective cases.

The nurse obtaining the written consent, who was training at the time, said she would have been physically accompanied by her charge nurse when she obtained the patient’s written consent, and neither would have obtained it if they had any doubt of the patient’s competency. The family is noted to be in the patient’s room that afternoon, and she would have documented any objection to the surgery.

Both doctors denied the patient was bleeding to death. There was no significant surgical wound bleeding noted, and his anemia was corrected by transfusions. Other areas, such as the GI-tract, were evaluated for bleeding, and nothing significant was found.

With regard to negligence, defendants’ expert testified that Dr. Reason complied with the standard of care in all respects. The “possible dementia” was in the differential diagnosis at admission but was transient and likely due to dehydration, infection, and hypoxia. With regard to causation, he testified that the patient died of complications of multi-organ failure but not due to bleeding. Instead, his kidneys began failing (prior to surgery) after a consultant ordered a CT of the neck with contrast to rule out an airway obstruction.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this big rig accident lawsuit and its proceedings.)

Plaintiffs Sasha Jimerson and Sam Watson Jr. alleged that the patient clearly was demented and could not legally consent to the surgery. The surgery was unnecessary in an 89 year old with multiple medical problems and exposed him to a high risk of complication. The consent obtained on February 17, 2007 was invalid because of dementia. All of the defendants should have made the diagnosis of dementia or should have had a neurologist consult on the patient prior to surgery.

Plaintiffs also alleged that the patient was never “cleared” for surgery by Dr. Reason and, therefore, Dr. Haim acted prematurely. After surgery, the patient essentially bled to death, most likely from undocumented and persistent bleeding from the surgical incision, and defendants failed to control the bleeding, which led to underperfusion of the patient’s vital organs, ultimately causing his death.

Plaintiffs’ expert had no criticism of the surgery itself. Instead, he believed the consent was invalid due to the patient’s mental condition. He was critical of Dr. Haim for not correcting the post-operative hemorrhaging.

Plaintiffs’ expert criticized everyone for obtaining consent from a person clearly incompetent to give consent. The daughter’s concerns were well taken, and, at a minimum, Dr. Reason and Dr. Haim should have consulted with hospital administration and a neurologist for assistance. Although he acknowledged that Dr. Reason did not clear the patient for surgery, which he commended, he did criticize his “quarterbacking” of the post-operative care with regard to the bleeding, which he should have diagnosed and corrected. Finally, he criticized Dr. Reason for “covering up” for Dr. Haim in his dictated death summary, as it says that there was an intensive discussion with the family before the surgery went forward, which clearly was not true.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this big rig accident lawsuit and its proceedings.)

From admission to Saturday, February 17, 2007, the patient’s conditions were stabilized. That morning, Dr. Reason postponed the surgery for that day because the patient had a high white blood cell count and asked the hematologist following the patient to decide whether this finding should further postpone the surgery. Dr. Haim testified that later that day, although no consultant specifically wrote “cleared for surgery,” the orders and notes of the hematologist and cardiologist clearly indicated to him that the patient could have the surgery the following morning, Sunday, February 18, 2007.

A nurse presented the written consent to the patient late in the afternoon of February 17 and testified that if she had had any suspicion that the patient was mentally incompetent or otherwise did not know what he was signing, she would have consulted with her charge nurse and most likely Dr. Haim. However, since that did not happen, she presumed she had no such suspicion. Dr. Reason was not aware of the plan for surgery in the morning.

The surgery went forward on Sunday morning, February 18, 2007, and no intra-operative complications arose. The patient’s blood loss of about 500 cc was “normal” for such a surgery. Over the next few days, the patient did reasonably well. However, on February 22, 2007, he developed low blood pressure and a high heart rate and was transferred to the ICU. His blood studies showed a significant anemia, suggesting blood loss from somewhere.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this big rig accident lawsuit and its proceedings.)

FACTS/CONTENTIONS

According to Defendant: On February 12, 2007, at approximately 11:00 p.m., decedent Sam Watson, 89 years old, was admitted by paramedics to the ER of defendant ABC Hospital (“ABC”) after he called 911. The paramedics reported to the ER physician that they had found decedent in his apartment amidst conditions that suggested elder abuse by his caretaker.

Although the patient’s only recorded complaint was being hungry, upon examination he was found to be dehydrated, malnourished, over-anticoagulated on Coumadin, and to have an apparent old fracture of his right hip. He also had pneumonia, hypoxia, and was “possibly demented.” Because his primary care physician, Dr. Park, was not on staff at ABC and could not be reached, he was admitted to the service of internist Sal Reason, M.D., who was on call to the ER. Dr. Reason had no prior relationship with the patient.
A plan for stabilization of the various conditions was established by Dr. Reason, who called in various consultants for assistance. Among the consultants was defendant Pat Haim, M.D., an orthopedist, to consult on the obviously fractured leg. In his history and physical note, Dr. Reason also indicated, among other conditions, “possible dementia.”

Dr. Haim saw the patient on February 13, 2007, and by then both a plane x-ray and a CT of the right hip demonstrated an old, complete intertrochanteric fracture of the right hip, with about 3 inches of displacement of the femoral shaft. Dr. Haim recommended a right hemiarthroplasty (partial artificial hip replacement) to be done after the patient’s condition was sufficiently stabilized for surgery.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

PROPOSED TRIAL SEQUENCE cont.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Plaintiffs’ Equitable Claims Under the UCL and FAL Statutes
Legal Background

The UCL prohibits unlawful, fraudulent, or unfair business practices. Because the UCL statute is written in the disjunctive, liability can be established under any of these three prongs. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) Plaintiffs’ UCL claim is based on all three prongs of the UCL statute. Plaintiffs also seek recovery for defendants’ false advertising under the FAL. Because the UCL and FAL claims are equitable claims, they are tried to the Court, not the jury.

Plaintiffs’ unlawful practices claim is based on ABC’s violations of the underlying staffing requirements, including Health and Safety Code sections 1276.5 and 1599.1.

Plaintiffs’ fraudulent practices claim is based on ABC’s statements and conduct that were likely to deceive the public into believing that ABC provides adequate nursing staff and complies with the state-mandated minimum of 3.2 PPD. The same evidence of misrepresentations and omissions under plaintiffs’ CLRA claim provides an independent basis for liability under the fraudulent practice prong.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse lawsuit and its proceedings.)

Plaintiffs’ CLRA Claim

The CLRA prohibits unfair practices in transactions involving consumers, including representing that defendants’ services have characteristics which they do not have or are of a particular standard or quality when they are of another. (Civil Code § 1770(a)(5) and (7).) While the CLRA requires proof of actual damages to recover, that element is easily met for all class members who paid money for services. (The specific number of private pay class members will be confirmed in deposition discovery later this month.) Even if a class member did not pay money, evidence of transactional or lost opportunity costs will suffice. (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 640-41, n.1.).

Non-disclosures are actionable under the CLRA. (Falk v. General Motors Corp. (N.D. Cal. 2007) 496 F.Supp.2d 1088, 1094; see Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 834-35.) Here, defendants both failed to disclose and actively concealed their understaffing, as evidenced by their manipulation of time records, failure to posting actual staffing numbers, and submittal of inflated nursing PPD numbers to the State of California.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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