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/personal injury case and its proceedings.)

THE FACTS AS PLEADED

The Plaintiffs’ complaint specifically alleges the following facts, which for purposes of a demurrer must be taken as true:

a. The Plaintiff and decedent, John Hernandez (hereinafter “John”), was born on XX/XX/1921.

b. It is alleged that upon admission to Defendant Healthcare’s facility, Doctor’s Medical Center, Defendant Doctor’s Medical Center, Dr. Green, Dr. Smith, and DOES 21-40 neglected, abandoned, and abused his care, failed to protect him from health hazards, failed to provide care for his physical and mental health needs, failed to exercise the degree of care that a reasonable person in a like position would exercise, failed to react promptly to emergent situations, all such acts constituting reckless “neglect” as defined in Welfare and Institutions Code § 15610.57, and delineated in Delaney v. Baker (1999) 20 Cal.4th 23, 31-32, 35, such that John suffered: gangrene to his testicles, unnecessary pain and suffering, and development of rashes all over his body due to an allergic reaction to Primaxin. These injuries were preventable had the Defendant, Healthcare’s and DOES 1-10, provided enough sufficiently trained staff at Doctor’s Medical Center to provide John with the amount of care that state and federal regulations required.

c. It is further alleged that during John’s admission at Doctor’s Medical Center, Defendants Doctor’s Medical Center, DOES 21-40, and Paul Smith, M.D. failed to meet the standard of care and otherwise failed to exercise that degree of care that a reasonable person in like position would exercise with respect to caring for the decedent, John. Specifically, during John’s admission at Doctor’s Medical Center from January 3, 2006 to January 30, 2006, a urine culture revealed that the decedent had developed E. coli and Proteus mirabilis from Universal.

Dr. Smith, an infectious disease doctor was consulted in to manage John’s E. coli infection. In order to control John’s infection, Dr. Smith prescribed Primaxin, an antibiotic, on January 5, 2006. On January 6, 2006, when the Plaintiff, Robert, visited his father at Doctor’s Medical Center, he noticed that his father had developed rashes on his body and notified the nurse.

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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/personal injury case and its proceedings.)

The Plaintiffs, John Hernandez, in and through his Successor-in-interest and Heir, Robert Hernandez, and Robert Hernandez, an individual, oppose the Demurrer of Defendant Paul Smith, M.D. (“Dr. Smith”) and Motion to Strike as follows:

INTRODUCTION

This is a Negligence case, and an Elder Abuse case brought under the provisions of Welfare & Institutions Code § 15600, et. seq. The Plaintiffs’ Complaint further alleges the following causes of action against the Defendant Dr. Smith: Negligence Per Se, Willful Misconduct, Survivorship, and Wrongful Death. The causes of action for Elder Abuse, Negligence, Negligence Per Se, Willful Misconduct, and Survivorship are causes of action that belongs to the decedent, John Hernandez, and is brought in and through his Successor-in-interest and son, Robert Hernandez.

The facts alleged in the Complaint, which for purposes of this demurrer must be taken as true, assert that the Defendant, Dr. Smith, failed to properly assess and medically treat the decedent’s severe allergic reaction to an antibiotic that was prescribed by Dr. Smith.

As a result of the allergic reaction to the antibiotics, the decedent developed Stevens-Johnson disease which caused his body to develop water blisters and first degree burns all over his body.

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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/personal injury case and its proceedings.)

SPECULATIVE TESTIMONY REGARDING PLAINTIFF’S LEVEL OF FUNCTIONING WOULD BE HIGHLY PREJUDICIAL

The court has inherent power to grant a motion to exclude Any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clement v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat. Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288.

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 879, 904.

Evidence Code §402 allows this court to hear and determine the question of the admissibility if evidence outside the presence or hearing of the jury. Mize v. Atchison, Topeka & Sante Fe Ry. Co. (1975) 46 Cal. App.3d 436, 448.

THE COURT MAY EXCLUDE AN EXPERTS OPINION WHERE BASED ON SPECULATION OR CONJECTURE
An expert may not base his/her opinion on speculation or conjecture. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 338; Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal. 2d 871, 882 (Experiments based largely on speculation or conjecture are not the proper subject of expert testimony). An expert’s opinion may also be excluded if it is not shown to be reliable. People v. Price (1991) 1 Cal. 4th 324, 419-420; People v. Carter (1957) 48 Cal. 2d 737, 752.

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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/personal injury case and its proceedings.)

Plaintiff John Allen’s Motion In Limine to Exclude Sammi Nunn, R.N. from Testifying Regarding Her Opinion on Plaintiff’s Functional Capacity and Competency
STATEMENT OF FACTS

The defense has designated Sammi Nunn, R.N., as an expert. Plaintiff believes that part of her testimony will consist of opinions about plaintiff’s functional capacity and competency while an inpatient at defendant’s University Hospital and Generic Nursing, Inc.’s residential facility in Sacramento.

GROUND FOR EXCLUSION

1. The expert witness is not qualified to render an opinion about plaintiffs functional capacity and competency.

A NURSE WITH NO EXPERIENCE IN PSYCHOLOGICAL EVALUATIONS IS NOT QUALIFIED TO TESTIFY ON THE ISSUE OF PLAINTIFF’S FUNCTIONAL CAPACITY.

The Evidence Code §720(a) provides that A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his [her] testimony relates. According to Sammi Nunn’s Curriculum Vitae, she is a registered nurse with no background in conducting psychological evaluations to determine an individuals functional capacity. In this matter, plaintiff was a mentally disabled individual with an IQ of 66. Like Dr. Goldberg, Sammi Nunn is not qualified to render an opinion regarding plaintiff’s functional capacity and competency. (See Part 2 of 2.)

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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/personal injury case and its proceedings.)

Allen developed decubitus ulcers because the nurses in charge of his care did not turn and reposition him as required. Allen was a quadriplegic, and the nurses’ orders stated that he needed to be turned once every two hours. XYZ’s employees did not turn Allen once every two hours as required, and XYZ has admitted that its nurses failed to carry out their own orders. XYZ argues that its employees did not turn Allen as required because he refused to cooperate, and that he stated that he did not want to be turned. In support of its argument, XYZ contends that patients have a right to refuse treatment. XYZ’s position is both legally and medically unsound, as only competent patients have the right to decide what medical care to receive.

Here, Allen lacked the capacity to accept or refuse treatment. There is ample information in Allen’s medical records that indicates that Allen lacked the capacity to accept or refuse treatment. Allen was unable to read, write, or count. He was unable to manage money, and was assigned a payee for his monthly Social Security Check. Allen was also a regional center client prior to his admission at University. XYZ’s employees did not conduct a formal evaluation of Allen’s functional capacity or a psychological evaluation. Moreover, Allen was not interviewed by a psychiatrist or psychologist while a resident at University. The failure to turn Allen as required in his care plan was reckless neglect and a breach of the standard of care that is discussed in CACI Instruction 504.

XYZ’s employees knew or should have known that if they did not provide Allen with assistance with mobility, there was a high probability that he would develop decubitus ulcers based upon Allen’s high risk for pressure ulcers. Those in charge of Allen’s custodial care knew, or should have known of Allen’s high risk for developing decubitus ulcers, and they were reckless in their failure to take the necessary steps to ensure that Allen was receiving proper custodial care.

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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/personal injury case and its proceedings.)

INJURY

As discussed above, Allen developed stage III decubitus ulcers on his buttocks, stage IV decubitus ulcers on his left hip, and a stage II decubitus ulcer on his left ankle. Allen developed a bone infection called osteomyelitis that resulted from his decubitus ulcers. In order to treat the osteomyelitis, Allen underwent surgical process called debridement that took place on May 16, 2005. Photographs of Allen’s decubitus ulcers will be available at the settlement conference. As a result of the assault, Allen suffered injuries to the chest, shock, humiliation, and fear.

LIABILITY

A health care provider may be held liable for reckless neglect for failing to take appropriate action, repeatedly or over a significant period of time, when a dependent adult suffers a decline or change in condition. Sababin v. Superior Court (2005) 144 Cal. App. 4th 81, 90, 50 Cal. Rptr. 3d 266. The defendant in Sababin, like defendant XYZ, argued that it cannot be held liable for dependent adult abuse unless it had injured the patient due to a total absence of care. The court disagreed. The court concluded that even [I]f some care is provided, that will not necessarily absolve a care facility of dependent adult abuse liability.

If a care facility knows that it must provide a certain type of care on a daily basis, but provides that care sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care.

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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/personal injury case and its proceedings.)

Plaintiff John Allen (“Allen”), deceased, by and through his conservator, Darrell Allen, submits the following Settlement Conference Statement:

INTRODUCTION

This is an action for violation of the Elder Abuse and Dependent Adult Act (“EADACPA”) and negligence against defendant XYZ MEDICAL CENTER (“XYZ”) for its reckless neglect in its failure to provide adequate custodial care to Allen. This also an action for violation of the EADACPA, negligence, battery, and intentional infliction of emotional distress against defendant Paul Smith (“Smith”) arising out the battery against Allen. Furthermore, this is an action against defendant Generic Nursing, Inc., (“Generic”) under the doctrine of respondeat superior, and for negligent hiring and retention of defendant Smith.

STATEMENT OF FACTS

Allen, who is now deceased, was an incompetent adult as determined by the probate court. The court appointed Allen’s father to be the limited conservator over Allen’s person and estate. Therefore, Allen was the proper plaintiff under the EADACPA. Allen suffered from attention deficit disorder with hyperactivity, global developmental disability, and had emotional behavioral problems. Prior to his admission to XYZ’s medical facility, Allen was a regional center client. An individual is eligible to be a client of the regional center if he/she has a developmental disability and has an IQ of 85 or below. Allen could not read, write, count, or manage his own finances. He was assigned a payee who managed his social security check.

On or about February 11, 2005, Allen was shot in the neck, and the shooting rendered him a quadriplegic. Shortly after the shooting, Allen was admitted to University, a branch of XYZ.
Shortly after being admitted to University, Allen was assessed for his risk for developing decubitus ulcers. The University staff at XYZ concluded that Allen’s risk for developing decubitus ulcers was high. In order to satisfy his nutritional needs, Allen was given a percutaneous endoscopic gastrostomy tube (PEG) that was monitored by his dietician.

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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/personal injury case and its proceedings.)

THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CLAIM FOR DAMAGES UNDER CAL. CIV. CODE §3345.

Defendant argues that Allen cannot recover under Cal. Civ. Code §3345 because there are no fines or penalties to be trebled in this case. This argument is without merit. Allen is seeking the statutory penalties against defendants XYZ Medical Center under Cal. Welf. & Inst. Code §15630(h), which provides for a fine of $1,000 for the failure to report the abuse of an elder or dependent adult, and a fine of up to $5,000 if the failure to report the abuse was willful. Allen is also seeking punitive damages against defendants Paul Smith and Generic Nursing, Inc. Punitive may be trebled pursuant to Cal. Civ. Code §3345. Therefore, there is a proper basis upon which treble damages may be awarded in this action, and the court should overrule defendant’s motion to strike Allen’s claim for treble damages.

IF THE COURT FINDS THAT ALLEN HAS NOT STATED SUFFICIENT FACTS TO SUPPORT HIS CAUSES OF ACTION, ALLEN REQUESTS LEAVE TO AMEND HIS COMPLAINT.

The Cal. Code of Civ. Proc. §472a(c) provides that: When a demurrer is sustained, the court may grant leave to amend the pleading upon any terns as may be just and shall fix the time within the amendment or amended pleading shall be filed.

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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/personal injury case and its proceedings.)

Here, Allen may bring a civil action under section 15656 of the Welfare and Institutions Code. In Laczko v. Jules Meyers, Inc. (1969) 276 Cal. App. 2d 293, 295, 80 Cal. Rptr. 798, and Michael R. v. Jeffrey B. (1984) 158 Cal. App. 3d 1059, 205 Cal. Rptr. 312, the court held that a violation of a statute embodying a public policy is actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the class whom the statute was designed to protect may include the violation of the statute as a cause of action in a civil matter.

There is nothing in Welfare and Institutions Code 15656 that precludes Allen from bringing a civil action based upon that state. The general purpose of the EADACPA is to protect elders and dependent adults from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal. 4th 23,33, 82 Cal. Rptr. 2d 610. Allen is a member of the class that section 15656 was designed to protect. As a member of this class, Allen may bring a civil action balked upon section 15656, even though the statute does not provide for civil remedies. The legislature did not intend to prevent an individual from asserting a cause of action in a civil matter under Welfare and Institutions Code §15656.

Allen has alleged a viable claim under Cal. Welf. & Inst. Code §15656.

As stated above, less particularity in pleading statutory causes of action is needed when the defendant may be assumed to have knowledge of the facts equal to or superior to that possessed by the plaintiff. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463, 474, 20 Cal. Rptr. 69; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324.

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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/personal injury case and its proceedings.)

Here, Allen alleges that defendants were responsible for his custodial care due to his physical and mental disabilities. He further alleges that defendants abused this position when defendant and its employees [E]ither caused, contributed to, or witnessed the injuries sustained by plaintiff and deliberately and callously failed and refused to seek or provide appropriate medical attention for those injuries, all with the intention to delay or prevent discovery of their own involvement and responsibility in the injury causing event and its aftermath.

Allen also avers that the defendant’s acts were unreasonable and were done for the “[P]urpose of causing plaintiff to suffer pain, mental anguish, and severe emotional and mental distress.” Allen was also in a depressed state of mind due to the fact that he was a victim of a shooting that rendered him paralyzed, and defendants were aware of this fact that made him susceptible to further mental distress. These allegations, along with Allen’s factual allegations of abuse and neglect, are sufficient to state a cause of action for intentional infliction of emotional distress. Therefore, defendant’s demurrer should be overruled with respect to this cause of action.

THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR DEFENDANT’S VIOLATION OF CAL. WELF & INST. CODE §15656
Allen may properly assert a claim under Welf. & Inst. Code §15656.

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