Articles Posted in Elder Abuse

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

Elder Abuse Remedies

The remedies available for elder abuse claims are listed in Welfare & Institutions Code § 15657, which states:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law:

(a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term “costs” includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code.

(c) The standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee shall be satisfied before any damages or attorney’s fees permitted under this section may be imposed against an employer.

As set forth in the statute, plaintiff’s burden of proof in seeking heightened remedies under the Elder Abuse Act is that of clear and convincing evidence. This burden of proof applies to liability, and causation. In Perlin v. Fountain View Management (2008) 163 Cal.App.4th 657, 664 the court said:

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

CAUSATION MUST BE PROVEN TO A REASONABLE MEDICAL PROBABILITY

One of the essential elements of plaintiff’s claim is causation. Assuming She is able to meet his burden of proving there was a breach of the standard of care, or elder abuse, she must then show any such breach was a cause of his injuries. As the court said in Budd v. Nixen (1971) 6 Cal.3d 195,200:

If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm–not yet realized–does not suffice to create a cause of action for negligence.

In the context of a personal injury action, causation must be proven within a reasonable medical probability. The reason for this was explained by the court in Brown v. Ortho Pharmaceutical Corp. (1985) 163 C.A.3d 396, 402-403:

The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [citations omitted] That there is a distinction between a reasonable medical “probability” and a medical “possibility” needs little discussion. There can be many possible “causes,” indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.

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

The dialysis concluded at 5:42. Mr. Reed initially got a BP of 90/21, but checked it again and it was 90/37. A total of 1.9 liters of fluid had been removed during dialysis. While plaintiff’s dialysis was completed at 5:42, she was not transported back to her room on the fifth floor until after 7:00 p.m. During the wait, however, she remained on a monitored bed in the dialysis unit with the blood pressure and heart rate monitors attached. Both of these monitors have alarms that will go off if the values drop below acceptable limits. The undisputed evidence is that the monitor alarms did not go off while plaintiff was awaiting transport.

According to the nursing notes, plaintiff returned to her room at 7:20. Her nurse was Jean King, also an ACES replacement nurse. Upon arrival her BP was 121/44, and her HR was 105. She also had a respiratory rate of 28. The nurse assigned to plaintiff was just coming on shift. She was concerned about plaintiff’s appearance, and asked the charge nurse to evaluate her. Supplemental oxygen was given, and over the next 30 minutes her vitals signs were monitored.

Her condition started to worsen, and then she suddenly experienced a respiratory arrest. A code blue was called, and by the time the responding physician arrived she had no pulse or spontaneous respirations. She was receiving CPR, and being ventilated by the nurses. As he assessed her, however, she suddenly had a spontaneous return of her heart rate. His evaluation of her airway revealed the presence of gastric contents, suggesting an aspiration.

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

Evening of October 10, 2006

October 10, 2006 was the first day of a strike at the two MC hospitals. As required under the Labor Code, MC was given 10 days notice of the strike. In anticipation of the strike a contract was entered into with Arizona Clinical Employment Staffing, a company that supplies traveling nurses. ACES is owned and operated by nurses, and over the next 10 days ACES and MC worked closely to come up with a list of suitable replacement workers. Over 500 replacement workers were hired to cover Medical Center in Sacramento.

One of the nurse hired through ACES was Jim Reed. The evidence at trial will show that Mr. Reed is an experienced ICU and dialysis nurse who works regularly at a large teaching hospital. On October 10, he was one of two replacement nurses assigned to the dialysis unit. Plaintiff was scheduled for dialysis that day, and Reed was the nurse who cared for her in the dialysis unit.

According to the records plaintiff started dialysis at 2:47 p.m.. The initial set of vital signs were BP 107/58 and HR 89. The protocol in the unit was to document vitals every 30 minutes. The next set, at 3:17, was BP 84/38 and HR 91. According to the chart, Mr. Reed immediately turned off the ultra-filtration function of the dialysis machine. Ultra-filtration refers to the process of removing fluid during dialysis. It is very common for patient’s to drop their blood pressure during dialysis, especially if the orders are to reduce fluid. When fluid is removed from the circulation there is necessarily a drop in the blood volume, and a corresponding drop in blood pressure.

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

The Pressure Sore

On August 17, 2006, the plaintiff was evaluated by Kim White R.N., the MC wound care nurse. Ms. White noted that plaintiff developed a skin breakdown at the area of her coccyx. It was measured as 4 x 3 cms, and the skin was fragile and discolored. Ms. White thought the wound was due to shearing; i.e., from friction while being moved.

Over the next week, the nursing staff continued to turn plaintiff every two hours, and followed the care ordered by the physician (as recommended by Ms. White). However, because of her poor underlying condition, and multiple co-morbidities, the plaintiff’s wound became a pressure sore. By August 23, 2006, the wound had progressed to a Stage III, and by this point was 8 cm. x 10 cm. large.

While plaintiff was not going to go to acute rehabilitation, the hope was that she could be discharged to a skilled nursing facility. However, for her to be able to do so she needed to be able to tolerate out-patient dialysis. For her to be able to do this she needed to be able to sit for three hours at a time. This was something she was never able to do.

In terms of plaintiff’s neurologic status, it remained guarded. On September 27, 2006, she had a swallowing evaluation. She was found to be at high risk for aspiration, and it was recommended that she not be given anything orally.

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

INTRODUCTION

This is an action for professional negligence, and ostensibly, for elder abuse, with a claim for punitive damages. The plaintiff, Allison Brown, has brought this action through her daughter and guardian ad litem, Nancy Smith. The defendants are Medical Center, Inc. (hereinafter “MC”) and Universal Health. This action arises from care and treatment provided to Ms. Brown at MC, where Ms. Brown is still a patient.

This case involves two allegations: negligent care resulting in the development of a pressure sore, and an alleged failure to monitor on October 10, 2006, leading to a respiratory arrest.

FACTS

On July 25, 2006, plaintiff Allison Brown was brought by ambulance to the ER at the Campus of MC. She had been undergoing dialysis when her family noticed that she was unable to speak, and it was noted that she had right-sided deficits. She arrived at 1645 that day, and at 1700 was being evaluated by the ER physician. She was alert and intermittently verbal, and had an abnormal neurologic examination, including an inability to move her right arm or either leg. A stat CT was ordered. It revealed the presence of an old right frontal lobe infarct (i.e. an old stroke). She was also determined to have had a new stroke. The plan was to admit her to the hospital and to provide supportive care and further evaluate her condition.

On July 26, 2006 the initial nursing assessment was done of the plaintiff. At the time of her admission she was noted to have redness on her right buttock. She was also non-verbal by this point, and had a left facial droop. She was also seen by neurologist Joan Green M.D. on July 26. Dr. Green noted the plaintiff’s ability to speak had deteriorated since the day before, and when she saw plaintiff she was nonresponsive, and did not follow commands. She suspected a left hemisphere stroke, and recommend a MRI and carotid ultrasound.

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(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.)

PLAINTIFFS’ THIRTEENTH CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES STATES A CLAIM.

The Unfair Practices Act, Business & Professions Code section 17200, prohibits any unlawful business practice. (B&P Code Section 17200). By prohibiting any unlawful business practice, Section 172000 borrows’ violations of other laws and treats them as unlawful practices that the unfair practices act makes independently actionable. State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093,1103 (single quotes in the original). The Unfair Practices Act’s coverage is sweeping, embracing anything that can properly be called a business practice and that at the same time is forbidden by law. Cel-Tech Communications Inc. v. Los Angles Cellular Telephone Company (1999) 20 Cal.4th 163, 180.

In People v. Casa Blanca Convalescent Home (1984) 159 Cal.App.3d 509,530, the court held that a corporation’s practice of understaffing its nursing homes was an unfair business practice within Section 17200. Here, plaintiffs, like the plaintiffs in Casa Blanca Convalescent Home, by pleading valid causes of action for violation of the Elder Abuse and Dependent Adult Civil Protection Act, and alleging that defendants’ conduct is part of a general business practice, stated a claim for Unfair Business Practices also raised a triable issue of fact as to unfair business practices.

PLAINTIFFS REQUEST LEAVE TO AMEND WITH RESPECT TO THE FOURTEENTH CAUSES OF ACTION FOR BREACH OF CONTRACT

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(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.)

PLAINTIFFS’ EIGHTH CAUSE OF ACTION FOR ELDER ABUSE WITH FRAUD STATES A CLAIM.

As discussed above, Welfare & Institutions Code Section 15657 provides for enhanced remedies under the Elder Abuse Act, where it is proven by clear and convincing evidence that a defendant … is liable for … or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse… The Eighth Cause of Action alleges that defendants committed neglect with fraud, based on the fraudulent misrepresentations that defendants made to induce the Brown family to place Mr. Brown at Universal Care.

The Eighth Cause of Action is pled as an alternate to the First Cause of Action for Elder Abuse -Wilful or Reckless Neglect. Defendants contend that plaintiffs cannot plead in the alternative, but they are wrong. It is well established that “a party may plead in the alternative and may make inconsistent allegations.” Adams v. Paul (1995) 11 Cal.4th 583, 593, 594, quoted in Third Eye Blind v. Near North Entertainment Ins. (2005) 127 Cal.App.4th 1311,1323. It is perfectly acceptable to file separate or duplicative causes of action arising from the same set of facts. Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 916.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the residentail elder care facilities in the Sacramento area. (See Part 11 of 11.)

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(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.)

Defendants have a laundry list of objections to the fraud cause of action, but they cite few specific authorities. Here, plaintiffs have alleged specific misrepresentations relating to the services defendants would provide to Steven Brown, made to Christina Brown by defendants’ agents in order to induce the Brown family to have Steven live at Universal Care. Defendants are liable for false misrepresentations made to a person acting as an agent of the plaintiff. Mirkin v. Wasserman (1993) 5 Cal.4th 1082,1097.

Mr. Brown had dementia, and the complaint alleges facts showing that Christina was clearly acting as his agents when they spoke with Universal Care about whether that facility would be suitable for him. Defendants’ misrepresentations about the kind and level of care that they would provide for Mr. Brown are also actionable. Cf. Harazim v. Lynam (1968) 267 Cal.App.2d 127,131 (defendants’ misrepresentations about the future profits that will be made on a specifically described investment plan are actionable if the plan is not as advertised). The first amended complaint specifically alleges that the Brown family relied on the misrepresentations in having Steven become a resident at Universal Care.

The complaint alleges that Steven sustained damages as a result of the fraud (financial damages, in terms of monies paid, and emotional distress and physical pain and suffering, as discussed above in connection with elder abuse).

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(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.)

PLAINTIFFS’ SIXTH CAUSE OF ACTION FOR NEGLIGENT HIRING, SUPERVISION, AND RETENTION OF REBECCA COCKRILL STATES A CLAIM.

Liability for negligent hiring, training, retention, or supervision is based on the principle that an enterprise should bear the loss for its negligence in hiring, training, or retaining unsuitable employees. Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340. See also Restatement of Agency (2nd) Section 213 (employer liable to third parties for injuries caused by inadequate training and supervision of its employees).

Here, with respect to Steven Brown, the first amended complaint alleges that defendants owed him a duty of care in connection with the managers they hired and retained to run the facility, based on their special relationship with him. Mr. Brown paid defendants more than $41,000 to provide care for him, which defendants did not provide, by reason of Ms. Cockrill’s mismanagement of the Universal Care facility. This is an economic loss sufficient to show damages to Mr. Brown on this cause of action.

Plaintiffs Christina and David Brown concede that they as individuals, as opposed to successors in interest, have not stated a cause of action for negligent hiring.

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