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.)

Allen has properly alleged wrongful misconduct on the part of an officer, director, or managing agent of defendant.

The Cal. Welf. and Instit. Code §15657.5(b)(2) provides that a plaintiff must satisfy the requirements of Cal. Civ. Code §3294(b) before any damages or attorney fees allowed under the EADACPA may be imposed against the employer.

Under section 3294(b) of the Civil Code, an employer may be deemed liable for punitive damages based upon the acts of an employee if:

(1) The employer had advanced knowledge of the unfitness of the employee and employed him/her with a conscious disregard of the rights or safety of others;
(2) The employer authorized or ratified the wrongful conduct for which the damages are awarded; or

(3) The employer was personally guilty of oppression, fraud, or malice.

For pleading purposes, an general allegation of agency is sufficient in overcoming a demurrer, as an allegation of agency is one of ultimate fact.. Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal. App. 3d 222, 235, 192 Cal. Rptr. 492. Here, Allen alleges that the conduct of defendant’s employees was carried out by a managing agent, or by an officer or director of defendants. He also alleges that A managing agent, officer, or director of defendant authorized and ratified each defendant’s conduct. Therefore, the court should overrule Defendant’s demurrer with respect to Allen’s cause of action for violation of the EADACPA.

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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 allegations in the complaint are sufficient to withstand defendant’s demurrer. Allen alleges that he is a dependent adult under the EADACPA. He alleges conduct that constitutes Neglect under Cal. Welf. & Inst. Code §15610.57 by stating the following:

(1) While an inpatient at defendant’s medical facility known as University Hospital, plaintiff developed severe stages three and four decubitus ulcers on his body, which was known but concealed, or in the exercise of reasonable care, should have been [known] by defendant and its employees. As a result of the decubitus ulcers, plaintiff suffered injuries which contributed to his existing physical injuries, and caused delays in his physical therapy. The injuries that were the result of the development of the decubitus ulcers were legally caused by the acts and/or omissions of defendants. The defendants, knowing of the injury and the likelihood that an injury would occur if they failed to act, deliberately failed and/or refused to provide timely assessment and treatment of plaintiff’s injuries. Defendants also failed and/or refused to investigate and/or document the circumstances and cause of the injuries suffered by plaintiff;
(2) While plaintiff was an inpatient at University Hospital, defendant, and its employees abandoned plaintiff for an extended period of time without nursing or other appropriate attention, despite his weakened condition and complete dependence upon such personnel;
(3) Defendants, and each of them, intentionally acted to cover up the existence and cause of plaintiff’s injuries and circumstances as described above, by failing and/or refusing to invest gate and/or appropriately document such occurrences by failing or refusing to notify family members, or appropriate law enforcement or regulatory personnel of such occurrences;

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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.)

It is well settled that less particularity in pleading is necessary where the defendant may be assumed to have equal or superior knowledge of the facts than the plaintiff does. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463,474, 2 Cal. Rptr. 609; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324; Doheny Park Terrace v. Truck Ins. (2005) 132 Cal. App. 4th 1076, 1099, 34 Cal. Rptr. 3d 157. The courts have reasoned that less particularity is required because [M]odern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4 th 592, 608, 98 Cal. Rptr. 2d 277.

Moreover, not all statutory causes of action must be alleged with the specificity that defendant suggests. A cause of action based upon a defendant’s violation of business and professions code section 17200 does not have to be alleged with specificity. Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46, 77 Cal. Rptr. 2d 709.

Here, defendant, who has been Allen’s health care provider since he was hospitalized beginning February 11, 2004, may be assumed to have knowledge of the facts of this action that is equal to or superior to that of Allen. Defendant has Allen’s complete medical chart in its possession. Defendant’s employees at University Hospital who were responsible for Allen’s custodial care, including the nurses, knew or should have known that because Allen was paralyzed, he needed regular assistance with turning and movement.

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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’s Memorandum of Points and Authorities in Opposition to Defendant’s Demurrer and Motion to Strike Portions of Plaintiff’s Third Amended Complaint
INTRODUCTION

Plaintiff John Allen (“Allen”), an incompetent adult, and Sacramento resident, by and through his conservator, Darrell Allen, requests that the Court issue an order overruling Defendant XYZ Medical Center’s (“Defendant”) demurrer and motion to strike portions of Allen’s third amended complaint. Allen has properly alleged causes of action for Defendant’s violation of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”), intentional infliction of emotional distress, and violation of Cal. Welf & Inst. Code § 15656. Additionally, Allen may also seek treble damages as set forth in Cal. Civ. Code §3345 as a result of Defendant’s neglectful and abusive conduct. Alternatively, Allen requests that the court grant him leave to amend if the court finds that he has not properly alleged the causes of action contained in his complaint.

DISCUSSION

THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR VIOLATION OF THE EADACPA.

Allen has alleged sufficient facts to state a cause of action for violation of the EADACPA.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Dr. XY is incorrect when he asserts that no new facts have been alleged to support Plaintiffs’ cause of action for elder abuse. New facts have been alleged in the TAC and incorporated by reference in paragraphs 34-35.

For these reason, Defendants’ Demurrer should be overruled and this lawsuit be allowed to proceed to discovery and trial by jury.

CIVIL CODE SECTION 337.4 LIMITATIONS DO NOT APPLY
Defendant DAVID XY, M.D. claims that Decedent’ s pain and suffering does not survive her death. He further claims that because recoverable damages are an essential element, Plaintiffs cannot make out a cause of action for Intentional Infliction of Emotional Distress. Welfare and Institutions Code Section 15657.5(b)(1) specifically provides:

The limitations imposed by Section 377.4 of the Code of Civil Procedure on the damages recoverable shall not apply.

As argued above, Plaintiffs have alleged facts sufficient to state a cause of action for abuse of Decedent, a dependent adult within the meaning of Welf & Inst. Code §§ 15600, et. seq. Therefore, Section 377.4 does not apply to pain and suffering by the defendant caused by abuse in the form of custodial neglect in this case.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Nursing notes written approximately six hours before Ms. Fine’s family called the paramedics include the following entries: “Resident alert and responsive. Fluids tolerated well. Vital signs normal, no pain. No shortness of breath. No acute distress at this time. Dr. XY aware of recent lab results. Resident resting in bed, turned every two hours for comfort…”

Dr. W’s notes from ABC Hospital compiled in the Emergency Department, minutes after Claire Fine left Eastern, tell a very different story. The hospital records describe Claire Fine as dehydrated, in shock due to an infection with a blood pressure of 63/37, and suffering from kidney failure. She had a feeding tube in place that was not being used to feed her. She had poor skin turgor, decubitus ulcers and contractures. Dr. W. had originally asked that she be transferred to University Medical Center but her condition was so critical that the paramedics took her to ABC Hospital because it was closer to Eastern
Dr. W. stated in his notes that Decedent was unable to respond to his questions. Perhaps the most disturbing finding was rhabdomyolysis, a condition caused by the breakdown in muscle tissue releasing a compound toxic to the kidneys. The condition occurs when a person is left to lie in one place for prolonged periods of time. Dr. W. felt rhabdomyolysis had been present for about one week. The nursing home was unable to reach Dr. XY, who returned a call placed to him by the nursing home only after Decedent had been transferred by paramedics. She died 10 days later. Claire was 53 years of age. Records indicate that she had been suffering from cancer for over one year that had gone undiagnosed and untreated.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Despite repeated complaints from family members and assurances that Decedent’s complaints of pain would be addressed, neither the nursing staff nor Dr. XY intervened in an effort to determine what was causing Decedent’s deteriorating physical condition and pain.

On a visit in late October, family members were convinced Decedent was very ill. They demanded that decedent be transferred to a hospital. The nursing staff and Dr. XY refused to co-operate with the family. Because Eastern refused to seek medical attention for Decedent, and because Dr. XY failed to come to the facility to examine Decedent and refused to authorize a transfer to an acute care facility, the family called the paramedics to Eastern.

When paramedics arrived, the nursing staff refused to allow them entry to attend to Decedent. The family ultimately gained access to Eastern for paramedics. The family then fired Dr. XY and asked Dr. Steven W. to care for Decedent. Decedent was transferred to Olympic Medical Center.

“The nursing notes from Eastern compiled on the days leading up to her transfer to Olympic Hospital, an acute care hospital, forced upon Eastern by the family, read as if Decedent was awake, alert, with normal vital signs and eating a healthy diet. There is one mention of skin breakdown on her sacrum but no other indication that she is not well, in pain and not alert.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

Plaintiffs’ FAC alleges in paragraphs 9, 19, 20, 21, 24, 25 27, 28 and 29 that while in the care and custody of the moving party, Decedent suffered severe malnutrition, was unreasonably and continuously restrained, suffered pain that went untreated, suffered stage III decubitus ulcers, severe infection, acute untreated kidney failure, and severe dehydration. These paragraphs further allege that Defendant Dr. XY had a duty as her attending physician to ensure that her basic physical, safety and medical needs were attended to. Plaintiffs also allege that the above referenced maladies and other occurred because Dr. XY failed to monitor and assess her condition, failed to maintain accurate records, failed to provide nutrition to prevent malnutrition and fluids to prevent dehydration, failed to take proper measures to prevent skin breakdown and to monitor skin integrity, failed to monitor and respond to notification by the nursing staff that Decedent’s condition had deteriorated and required his medical attention.

C. Defendants Acted with Recklessness, Oppression and Fraud.
In order to make out a claim for abuse of a dependent adult the EADACPA, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. These three categories involve intentional, wilfull, or conscious wrongdoing of a despicable or injurious nature. College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721. These are the same allegations that are required to make out a claim for Wilful Misconduct under Civil Code §3294 which is Plaintiffs’ First Cause of Action in their FAC. Defendant’s Demurrer to this cause of action was previously overruled by this Court. Recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of action with knowledge of the serious danger to others involved. (Id., at 721.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

C. There Is No Requirement That Plaintiffs Show That Dr. XY Was The Custodian of Claire Fine.

In his moving papers, Dr. XY maintains that he cannot be held liable under a theory of abuse of a dependent adult because he was not Decedent’s custodian. This argument is wholly without merit. In Mack v. Soung (2000) 80 Cal. App. 4th 966, the children of an elderly woman sued her physician under the Elder Abuse statute. Dr. Soung maintained that he could not be liable under EADACPA because he was not the decedent’s custodian. In overruling his argument the court specifically found:

Dr. Soung additionally claims he cannot be liable under the Elder Abuse Act because he was not Girtha’s custodian or caretaker…He is wrong… neglect is not restricted to care custodians. Instead it applies generally to anyone having care or custody of the elder, and specifically mentions the [f]ailure to provide medical care for the physical and mental health needs.

The Mack court further pointed out that Dr. Soung’s argument was vitiated by the California Supreme Court’s decision in Delaney v. Baker (1999) 20 Cal. 4th 23. In that decision, the court held that health care professionals are not exempt from the heightened remedies triggered by § 15657 when they are guilty of reckless neglect. Here, Dr. XY had responsibility as the attending physician of Decedent to ensure that she was fed, hydrated, medicated, free of abuse, and that her medical needs were attended to.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)

A. Decedent Was a Dependent Adult Within the Meaning of Welfare & Institutions Code § 15610.23

Welfare & Institutions Code § 15610.23 defines a dependent adult as an individual between the ages of 18 and 64, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities… Plaintiffs’ Fourth Amended Complaint (FAC) alleges in part:

In September 2001, forty-five year old Decedent, CLAIRE FINE, suffered a severe heart attack. Decedent ultimately survived the heart attack but was left with severe brain damage due to lack of blood flow to her brain. She was diagnosed with hypoxic encephalopathy or brain damage caused by lack of oxygen.

Due to her severe brain damage, Decedent was unable to feed herself, speak, walk or attend to her personal needs, including bowel and bladder hygiene. Defendants, and each of them, were aware of her mental and physical disabilities when she was admitted to Eastern Convalescent Hospital and knew that these disabilities continued up to the time of her transfer to an acute care facility.

B. Decedent Suffered Egregious Custodial Neglect While in the Exclusive Custody and Care of Defendants, Including Dr. XY.
Statutory Elder Abuse is defined by Welf & Inst. Code § 15610.57 in part as: (a) Neglect means either of the following:

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