Articles Posted in Elder Abuse

https://www.moseleycollins.com/lawyer-attorney-1245027.htmlIt is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

MICRA Does Not Apply To Elder Abuse Act Actions cont.

The California Supreme Court has drawn precisely this distinction between substandard care (professional negligence) and a health care provider’s total abdication of his responsibility to provide care (elder neglect abuse) in separating conduct that falls within the Elder Abuse Act from conduct that does not:

It is true that statutory elder abuse includes “neglect as defined in Section 15610.5,” which in turn includes negligent failure of an elder custodian “to provide medical care for the elder’s physical and mental health needs.” But as we explained in Delany, “neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.” As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the “failure of those responsible for attending to the basic needs and comforts of the elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. Covenant Care, 32 Cal. 4th at 783 (citations omitted).

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

Continue Reading ›

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Attorneys’ Fees And Costs

Under the Elder Abuse Act, plaintiff’s attorneys’ fees and costs are a part of the damages award to the plaintiffs. Cal. Welf. & Instit. Code § 15657. Notably, attorneys’ fees under section 15657 are unilateral to the Elder Abuse victim, and may not be awarded to defendant. Id. The attorneys’ fees and costs incurred thus far in this case are substantial.

The actual number of hours spent in litigation is only a starting point for determining the amount of fees that will be awarded after trial. The hourly computer is known as the lodestar, which may be multiplied based on certain factors, including the novelty or difficulty of the questions presented and the skill of the prosecuting attorney; the extent to which the litigation precluded other employment by the attorneys; the contingent nature of the fee; the importance of the litigation; delay in receiving attorneys’ fees; whether substantial time was devoted to the litigation; success in achieving the ultimate purpose of the litigation; and the reputation and professional standing of the prosecuting attorney. Serrano v. Priest, 20 Cal. 3d 25, 49 (1977). The facts here are well suited for a multiple of at least 1.5 to the attorneys’ fees in this case. See, id., (1.4 multiplier); Coalition for LA County Planning etc. Interest v. Board of Supervisors, 76 Cal. App. 3d 241, 251 (1977) (2.0 multiplier).

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

Continue Reading ›

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Remedies Available To Plaintiffs Under The Elder Abuse Act
Emma Hill’s Pain And Suffering

Under the Elder Abuse Act, pain and suffering survive the death of a victim of neglect. According to the operative section, “the damages recovered [for a decedent’s pain and suffering] shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. Cal. Welf. & Instit. Code § 15657.” Plaintiffs maintain that Section 3333.2 does not in any way limit plaintiffs’ recovery because it only applies to “any action for injury against a health care provider based on professional negligence.” Cal. Civ. Code § 3333.2(a). As discussed in greater detail below, plaintiffs’ action does not sound in professional negligence but, instead, is an elder abuse action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As the California Supreme Court recently has reaffirmed, an elder abuse action is separate and distinct from a professional negligence cause of action. Covenant Care, Inc. v. Superior Court, 32 Cal. 4 th 771 (2004) ( [A]s we explained in Delaney, “neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.”) Based on this reasoning, California courts repeatedly have found that MICRA provisions, of which Civil Code section 3333.2 is one, do not apply to elder abuse actions. See id (MICRA provision found at CCP section 425.13 does not apply to elder abuse causes of action). (See Part 18 of 20.)

Continue Reading ›

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

Since the Egan decision, numerous other cases have reenforced that the litmus test for determining a managing agent is the degree to which the corporation has delegated to the employee decision-making discretion in the employee’s sphere of authority, not the employee’s position in the corporate hierarchy and not the employee’s ability to make corporate-wide policy. Agarwal v. Johnson, 25 Cal. 3d 932 (1979) (project manager who oversaw 20-25 employees in one office of an international company with 5,000 employees was a managing agent); Textron Financial Corp. v. National Union Fire Ins. of Pittsburgh, 118 Cal. App. 4th 1061 (2004) (third party agent vested with discretion in administering insurance corporation’s commercial bus program a managing agent of the corporation for punitive damages purposes).

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

Plaintiffs maintain that numerous Universal employees were managing agents of Universal and the XYZ Corporate Defendants because such employees were delegated all of the critical patient care functions as to Ms. Hill such that they decided on behalf of these corporate entities the care that would be provided to Ms. Hill. They then set de facto policy regarding the nursing care to be provided to Ms. Hill and whether she would be transferred to the hospital to receive medical care for her broken hip.

In this case, defendants’ managing agents included Director of Nurses Shelly Brown, Station 4 Nurse Supervisor Anne Smith, and Ms. Hill’s charge nurses, among others. (See Part 17 of 20.)

Continue Reading ›

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also 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.)

Plaintiffs Have Failed to Produce Legitimate Evidence to Support Their Cause of Action for Wrongful Death.

Wrongful death is a statutorily created cause of action and its elements are outlined within Civil Code §377.60. A cause of action of wrongful death requires evidence of negligence, or other wrongful act, a resulting death and damages, suffered by the heirs. Quiroz v Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263. In a wrongful death action, the plaintiff must prove the defendant’s conduct was a substantial factor in causing the alleged death. Bromme v Pavitt (1992) 5 Cal.App.4th 1487, 1507.

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

The evidence presented by plaintiff fails to provide any foundational basis for a reasonable jury to conclude Ms. Hill’s death was a result of any act which occurred at XYZ. There has been no presentation of evidence to indicate the existence of a skin wound on Ms. Hill while she was receiving treatment at XYZ. In addition, plaintiffs have failed to produce any evidence to indicate a foundational basis that the alleged cause of death, sepsis, was in any way related to the skin wound at issue or any other infection process which began or was in any way related to care at XYZ.

Continue Reading ›

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

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

The phrase at issue first appeared in Egan v. Mutual of Omaha, 24 Cal.3d 809 (1979). In Egan, an insured obtained punitive damages against Mutual of Omaha based on the conduct of employees McEachen and Segal, both claims representatives from its Los Angeles branch. Neither of these employees were officed in corporate headquarters, nor did they have any ability to dictate corporate-wide policy. See id. at 815, 823. Nevertheless, the California Supreme Court found them to be managing agents of Mutual of Omaha, specifically rejecting Mutual of Omaha’s argument that the employees were not managing agents because neither was involved in high-level policy making. Id. at 822. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Egan Court explained that the “[t]he determination whether employees act in a managerial capacity” does not “hinge on their level” in the corporate hierarchy. Id. Rather, the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy. Id. at 822-23. In applying this rule to its facts, the Court held that [w]hen employees dispose of insureds’ claims with little if any supervision, they possess sufficient discretion for the law to impute their actions concerning those claims to the corporation. Id. at 823. Further amplifying its decision as to how employees in one branch office of a national corporation were making decisions that will ultimately determine corporate policy, the Court explained:

Continue Reading ›

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also 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 Law On The “Managing Agent” Requirement (Element #7 Above)

A “managing agent” is one who “exercises substantial discretionary authority over decisions that ultimately determine corporate policy.” White v. Ultramar, Inc., 21 Cal. 4th 563, 577 (1999). Contrary to the suggestion of many defendants in these elder abuse actions, a managing agent does not have to be high up in the corporation. See, e.g., Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 822 (1979). Moreover, while the definition of managing agent refers to employees who determine corporate policy, California law clearly does not require an employee to be capable of determining corporate-wide policy to be a managing agent. Instead, if the corporation delegates to the employee substantial decision-making discretion within the employee’s particular sphere of authority and such sphere is an important aspect of the corporation’s business, the authority exercised constitutes the “ad hoc formulation of policy and the employee exercising it is a managing agent.”

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

That an employee merely need exercise substantial discretion within his sphere of authority – and need not be capable of creating corporate-wide policy – to determine corporate policy and be a corporation’s “managing agent” is proven both by the facts and analysis of the case that originally coined the “determine corporate policy” phrase and by a score of cases that have found employees “managing agents” who had no ability whatsoever to define corporate-wide policy. (See Part 15 of 20.)

Continue Reading ›

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also 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.)

Plaintiff Has Failed to Produce Substantial Evidence of Authorization or Ratification by the Defendants’ Offices, Directors or Managing Agents

Reckless neglect on the part of the defendant cannot be inferred and the plaintiff has failed to produce any evidence, let alone substantial evidence to a clear and convincing standard, of reckless neglect. Plaintiffs’ failure to produce substantial evidence of reckless neglect by the defendants’ employees is, alone, enough for this court to grant this motion for directed verdict as to the elder abuse cause of action. However, the Elder Abuse Act, in cases such as this, where a plaintiff is seeking enhanced remedies against an employer for elder abuse, must satisfy additional standards as set forth in Civil Code §3294(b); Welfare & Institutions Code §15657(c), 15667.5(b)(2).

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

Allegations of malice, oppression, fraud or recklessness against an employer must rest on the malice, oppression, fraud or reckless of an employee, because legal entities, such as these defendants “do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” Cruz v Home Base (2000) 83 Cal.App.4th 160, 167. Plaintiff must show that an officer, director or managing agent of the defendants (1) had advanced knowledge of the unfitness of the specific employee who committed the alleged neglect against Ms. Hill and employed that person with a conscious disregard of the rights and safety of others, or (2) authorized or ratified, a specific employee’s wrongful conduct, or (3) was personally involved in the neglect and personally guilty of oppression, fraud or malice. CACI 3105; Welfare & Institutions Code §15657; Civil Code 3294(b); College Hospital, Inc. v Superior Court (1994) 8 Cal.4th 704, 723.

Continue Reading ›

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also 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 Elements Of An Elder Abuse Cause Of Action

In order to establish a violation of the Elder Abuse and Dependent Adult Civil Protection Act, plaintiffs must prove all of the following elements:

1. That the Defendants and/or Defendants’ employees had care or custody of Emma Hill;
2. That Emma Hill was 65 years of age or older while she was in Defendants’ care or custody;

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

3. That one or more of Defendants’ employees failed to use the degree of care that a reasonable healthcare practitioner in the same situation would have used by:
a. failing to assist in personal hygiene or in the provision of food, clothing, or shelter;
b. failing to provide medical care for physical and mental health needs;
c. failing to prevent malnutrition or dehydration; or
d. failing to protect Emma Hill from health and safety hazards.
4. That the employees acted with recklessness, malice, oppression or fraud;
5. That Emma Hill was harmed;
6. That the employees’ conduct was a substantial factor in causing Emma Hill’s harm; and
7. One or more of the following:
a. That the employees were officers, directors, or managing agents of Defendants acting in a corporate/employment capacity; or

Continue Reading ›

It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also 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.)

Plaintiffs allege that XYZ Healthcare staff is guilty of neglect under the Elder Abuse Act. Welfare & Institutions Code §15610 57 (a)(l).

Among the elements of the neglect cause of action, plaintiffs must show, through clear and convincing evidence, that one or more the defendants’ employees failed to use the degree of care that a reasonable person, in the same situation, would have used, that the employees acted with malice, oppression, fraud or recklessness, that Ms. Hill was harmed by that specific conduct, and that that specific conduct was a substantial factor in causing Ms. Hill’s harm. CACI 3105. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Throughout the course of plaintiffs’ presentation of evidence, they have failed to present any evidence of conduct, intentional or otherwise, by an employee of the defendant that resulted in any form of skin degradation at XYZ Healthcare. Plaintiffs have gone to great pains to show that certain boxes were not checked in the chart and that certain other regulatory requirements for documentation and care planning were not completed However, they have produced absolutely no evidence to indicate Ms. Hill was injured in any way as a result of those failures . Plaintiffs’ evidence, as presented in this court, does not meet the heightened burden required under the Elder Abuse Act of showing, by clear and convincing evidence, that the defendants’ employees acted recklessly or are guilty of oppression, fraud or malice. Covenant Care, supra at 785; Intrieri v Superior Court (2004) 117 Cal.App.4th 72, 82.

Continue Reading ›