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/wrongful death case and its proceedings.)

PLAINTIFFS’ FOURTH CAUSE OF ACTION STATES CLAIMS FOR RECKLESS OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS TO STEVEN BROWN

The elements of the tort are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Claimant’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App.4th 1023, 1028, 37 Cal.Rptr.2d 431.

The tort does not require an allegation of an intention to cause harm. A reckless disregard of the probability of causing harm is adequate. [I]t is not essential to liability that a trier of fact find a malicious or evil purpose. It is enough that defendant “devoted little or no thought” to the probable consequences of his conduct. KOVR-TV, Inc., supra, 31 Cal.App.4th at 1031-1032.

Whether conduct is outrageous is a question of fact for which the law does not provide a bright line rigidly separating that which is actionable from that which is not. Indeed, it generally hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical. Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.

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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.)

Here, Dani O’Brien made complaints prior to April 2006 regarding medication errors affecting her mother’s medications. This put defendants on notice of problems with the administration of medication. Yet, defendants did not correct the medication problems, which persisted with errors with Mr. Brown’s medications late in 2006, (missed Procrit injections, missed doses of other medications), ultimately resulting in Universal Care’s overdosing him with Olanzapine (Zyprexa), thereby causing him pain, suffering, and death).

Universal Care also failed to take precautions to prevent Mr. Brown from falling, after being on notice in the admission process that he was at a high risk for falls. They also failed to change their fall prevention protocol for him after he had actual falls in the facility, resulting in his further falls.

These allegations are more than sufficient to allege conscious disregard of Mr. Brown’s welfare under Intrieri.

PLAINTIFFS’ THIRD CAUSE OF ACTION STATES CLAIMS FOR WRONGFUL DEATH.

Defendants mistakenly contend that plaintiffs have not alleged facts showing that defendants negligently caused Mr. Brown’s death. Paragraph 140 states that the autopsy shows a toxic level of Olanzapine in Mr. Brown’s blood stream. Paragraph 141 states that Universal Care provide[d] Steven excess dosing of Olanzapine, directly resulting in pain, suffering, and death on October 7,2006. Of course, these allegations state that Universal Care overdosed Mr. Brown on Olanzapine. These allegations sufficiently state a cause of action for wrongful death.

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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.)

The lower court granted summary judgment for defendants, finding that the facts adduced by plaintiffs amounted only to medical negligence and not “reckless neglect.” The court of appeal reversed, finding several independent bases that supported an inference of reckless neglect. Id. at 85. The nursing home’s display of the keypad number above the keypad on the door to the ward, raised a reasonable inference that the nursing home had consciously disregarded the safety of the Alzheimer patients, including Mrs. Intrieri because it provided “unfettered access” to the Alzheimer’s ward to any one who could read the code. Id. at 84.

The nursing home’s failure to take steps to prevent the belligerent resident from harming Mrs. Intrieri and other residents, knowing that he had been exhibiting bizarre behavior, also evinced reckless neglect. Id. at 84-85. The nursing home’s failure to make changes to Mrs. Intrieri’s care plan after she developed pressure ulcers, and its failure to follow a care plan for the ulcers after an outside physician set a plan of treatment for the ulcers, also supported a reasonable inference that the nursing home acted with reckless neglect in caring for Mrs. Intrieri. Id. at 85.

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, a lawsuit had been brought against a skilled nursing facility by the family of a deceased woman, who acquired pressure ulcers at the facility, which caused her death. She had Huntington’s chorea disease, which put her at known risk for skin breakdown. Id. at 83. The facility was granted summary judgment in the lower court based on its argument that it had no liability unless it injured the dependent adult due to a total absence of care. Id. at 90. In reversing, the Court of Appeal held, We disagree.

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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 State A Claim for Willlful or Reckless Neglect of An Elder By Alleging That Defendants Failed to Make Effective Changes To Their Care Plans for Fall Prevention and Medication Administration Despite Being On Notice of Falls By Mr. Brown And Errors With His Medications.

The courts have held that Title 22 regulations governing Residential Care Facilities For The Elderly establish a special relationship to use due care between a facility and its residents, and that these regulations inform the standard of care owed to a resident, upon which the resident may rely in a direct action against the facility to establish negligence per se. (See Klein v. Bia Hotel Corporation (1996) 41 Cal.App.4th 1133 (Title 22 regulations in a residential care facility establish duty of care owed to resident of facility). Section 1569.312 of Title 22 Required Universal Care to provide Mr. Brown with care and supervision, monitoring to ensure his health, safety and well-being, assistance with activities of daily living (such as walking) to meet his needs, and planned activities.

A defendant is liable for reckless or willful neglect of an elder when it fails to protect an elder from health or safety hazards by failing to implement or change a care plan that protects against such hazards. In Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, decedent was a resident of defendant’s nursing home. She was attacked by another resident who entered the Alzheimer’s ward. She fell, broke her hip, and ultimately passed away. Prior to the attack, the nursing home was aware of the danger the other resident posed, but did not take steps to protect the decedent and other vulnerable residents on the Alzheimer’s ward. The nursing home also let the decedent develop pressure ulcers on her leg, and knowing that the resident had developed pressure sores, failed to take action so that the sores wouldn’t get worse. Id. at 85.

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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.)

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.

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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’ FIRST CAUSE OF ACTION STATES CLAIMS FOR WILFUL OR RECKLESS NEGLECT OR ABUSE OF AN ELDER

Plaintiffs State A Claim for Willful or Reckless Neglect of An Elder By Alleging That Defendants Chose To Maximize Profits By Understaffing And Underbudgeting Universal Care In Disregard Of Resident Safety and Welfare.

In 1991, the Legislature enacted anew article of the Welfare and Institutions Code (Welf. Code Section 15657 et seq.) Civil Actions for Abuse of Elderly or Dependent Adults, which provides for enhanced damages, fees, and costs recoverable in actions involving the abuse of an elderly or dependent adult. This article is part of a larger statutory framework known as the Elder Abuse and Dependent Adult Civil Protection Act (Welf & Inst C § 15600 et seq.) (“The Elder Abuse Act”). See Delaney v. Baker (1999) 20 Cal.4th 23, 33. Section 15657 provides that:

When 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 fees and costs …. (B) the limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply.

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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’ Memorandum of Points and Authorities in Opposition to Demurrer by All Defendants with Respect to the Brown Plaintiffs
INTRODUCTION

This is an action for elder abuse, fraud, wrongful death, unfair business practices and related causes of action against the corporate owners and managers of Universal Care’s Alzheimer’s and Dementia Care Division.

The Complaint states fifteen causes of action: Elder Abuse-Willful or Reckless Misconduct, Elder Abuse-Neglect, Treble Damages for Deceptive or Fraudulent Practices Against Elderly Persons, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligent Hiring, Screening, Retention, Fraud (Concealment), Unfair Business Practices, Disability Discrimination, and Breach of Contract. Plaintiffs seek compensatory damages, restitution, punitive damages, and treble damages.

As discussed below, plaintiffs concede that the Fourteenth and Fifteenth Causes of Action for Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing are subject to demurrer, and they ask leave to amend those causes of action. Plaintiffs also concede that David Brown, individually, has not stated a claim for Reckless or Intentional Infliction of Emotional Distress, and they ask leave to amend that cause of action. In all other respects, they argue that the demurrer should be overruled.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

The Notice was submitted on February 8, 2001, and was incorporated into the Plan approved by the Bankruptcy Court. The Supplement attached to the Notice lists the specific steps the various entities took during the reorganization process. With regard to the California properties, the following reorganization took place, which can be traced in Item l3 as follows:

B. 3: AMS Properties, Inc., which operated three of the defendant dbas, merged with and into GCI-Wisconsin Properties, Inc., a subsidiary of SunCare, Inc., with GCIWisconsin Properties, Inc. being the survivor after the merger.

D. 1: SunCare, Inc. converted from a C corporation to a Delaware limited liability company and changed its name to SunCare, LLC.

These additional documents clearly establish the relationship between the Ocean Group and SunCare, LLC, and its various dba’s, the named defendants in the present law suit.

The reorganization process, as outlined in the Plan Documentary Supplement, is further authenticated by the Declaration of Daniel Smith, a Senior Vice President and Associate Counsel for Ocean Healthcare Management Company, a wholly owned subsidiary of Ocean Health Care, Inc., previously known as Ocean Post-Acute Network, Inc.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

(C) Sufficient Documentation of the Bankruptcy Reorganization Exists to Support Defendants’ Argument for Striking All Restitution Claims Arising Out of Conduct Preceding the Confirmation Date of the Second Amended Joint Plan of Reorganization

As noted in Defendants’ moving papers, Ocean Health Care, Inc., Ocean Post-Acute Network, Inc., Ocean Health Group, Inc., and their respective debtor affiliates, filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code on January 18, 2000. Ocean Group confirmed the Second Amended Joint Plan of Reorganization for the Ocean Post-Acute Network, Inc., the Ocean Health Group, Inc., and Their Respective Debtor Affiliates Dated February 1, 2001 (as Or L Modified on March 25, 2001 for Confirmation) (“the Plan”) pursuant to confirmation orders dated April 3, 2001.

On May 13, 2001, the effective day of the Plan, the Ocean Group, its debtor affiliates and all successors in interest, received the discharge injunction imposed by Section IX.D of the Plan, the Bankruptcy Court’s Findings of Fact, Conclusions of Law, and Order Confirming Debtors’ Joint Plan of Reorganization.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Restitution Is Not An Appropriate Remedy for Medi-Cal or Medicare Patients

Defendants also contend that Plaintiff cannot, as a matter of law, seek restitution on behalf of those residents who receive Medi-Cal and Medicare benefits. Any party seeking to restore federal funds must do so through the federal False Claims Act, 31 U.S.C. §§ 3729-3733. Similarly, individuals seeking to restore state funds based upon false claims must proceed under the California False Claims Act, Government Code §§ 12650-12656.

As to EF’s argument that Medi-Cal is akin to a loan in which Residents have an ownership interest, this argument was soundly rejected by the California Supreme Court in Kizer v. Hanna (1989) 48 Cal.3d 1. The court held, as part of a retroactivity analysis, that there is no debt created by recoupment scheme of Welfare & Institutions Code Section 14009.5. EF is, therefor, simply wrong in its bootstrap assertion that nursing home residents incur a liability at the time Medi-Cal makes payments on their behalf and that the residents, therefore, have an ownership interest in the money. To the contrary, as explained in Hanna, “the payment of Medi-Cal does not create a debt under section 14009.5, because the Department’s right to reimbursement arises only after the recipient’s death and even then is contingent upon conditions in existence at that time.” Id., at 11. As noted in Defendants’ moving papers, Section 14009.5 clearly states that there is no right to reimbursement if the recipient leaves a surviving spouse, a minor or disabled child, or an insufficient estate.

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