Articles Posted in Elder Abuse

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.)

California And Federal Regulations Governing Skilled Nursing Facilities Such As Universal Healthcare, Inc. Are A Proper Bases For Presuming Neglect In Elder Abuse Cases
Regulations that establish the standard of care under California Evidence Code section 669 (presumption of negligence) are proper as a basis for presuming neglect under the Elder Abuse Action. Norman v. Life Care Centers of America, Inc., 107 Cal. App. 4th 1233, 1244 (2003). Skilled nursing facilities in California are governed by state and federal regulations. The state regulations are known as Title 22. The federal regulations are known as the OBRA regulations.

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

In Norman, the Court of Appeals reaffirmed the existing case law in California that plaintiffs are entitled to have the jury instructed on all relevant portions of the regulations governing skilled nursing facilities:

The California Code of Regulations title 22 regulations applicable to licensed skilled nursing facilities define those facilities’ duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents. (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 519-524, 95 Cal.Rptr.2d 336.)

In Conservatorship of Gregory, the trial court’s instructions on elder abuse incorporated title 22 regulations that included numerous, specific examples of what constituted neglect in the treatment and care of nursing home patients. (Id. at p. 521, 95 Cal.Rptr.2d 336.) Conservatorship of Gregory stated:

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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.)

Finally, “recklessness,” while not defined under Civil Code §3294, is, under common law, referred to as a subjective state of culpability greater than negligence. It is the “deliberate disregard for a high degree of probability that an injury will occur” and involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. It rises to the level of a conscious course of action with knowledge of the serious danger and likelihood of injury to the plaintiff. Delaney, supra at 31-32. Plaintiffs have presented no evidence of any subjective culpability of any staff member at XYZ Healthcare providing care and treatment to Ms. Hill.

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

The scope, purpose and standard of proof required under the Elder Abuse Act was determined by the California Supreme Court in the seminal cases of Delaney v Baker, supra and Covenant Care, Inc v Superior Court (2004) 32 Cal.4th 771, 783, wherein it was stated:

As we determined in Delaney, if the neglect (or other abuse) is reckless or done with oppression, fraud or malice, “then the action falls with the scope of [Welfare & Institutions Code] §15657 and as such cannot be considered simply based on … professional negligence … That only these egregious acts were intended to be sanctioned under §15657 is further underscored by the fact that the statute requires liability to be proved by a heightened clear and convincing evidence standard.” Delaney, supra at 35, Covenant Care, supra at 35. Covenant Care, Inc v Superior Court, (2004) 32 Cal.4th 771, 783. (See Part 6 of 8.)

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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 Elder Abuse Act provides for enhanced remedies including attorneys’ fees and recovery for pain and suffering surviving the death of an elder upon a showing that a defendant has engaged in the reckless neglect or abuse of an elder. Cal. Welf. & Instit. Code § 15657. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under the Elder Abuse Act, “abuse” is defined as either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering or (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Cal. Welf. & Inst Code § 15610.07 (emphasis supplied). Neglectful elder abuse is the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 785 (2004) internal citations and quotations omitted) (emphasis in original). The Elder Abuse Act defines neglect as, among other things, the:

(1) Failure of a health care provider to assist in personal hygiene, or in the provision of food, clothing, and shelter; or
(2) Failure to provide medical care for physical and mental health needs; or
(3) Failure to protect from health and safety hazards; or
(4) Failure to prevent malnutrition or dehydration.
Cal. Welf. & Institutions Code § 15610.57.

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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.)

“Neglect” does not include acts of traditional professional negligence, but refers to forms of egregious neglect performed with some state of culpability greater than mere negligence. The subjective culpability for a neglect allegation under the Elder Abuse Act requires specific facts showing recklessness, malice, oppression or fraud by a specific caregiver Covenant Care, supra at 781-790; Delaney, supra at 33-35; Welfare & Institutions Code §15657; CACI 3105. Under Civil Code §329(c), “malice” is “conduct which is intended … to cause injury … or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

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

Malice denotes ill-will, or a desire to do harm for the mere satisfaction of doing it. Ehaugh v Rabin (1972) 22 Cal.App.3d 891, 895. “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights,” and “fraud” is defined as “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention … of… causing injury.” As a component element of malice and oppression, despicable conduct means conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people, Tomaselli v TransAmerica Insurance Co (1994) 25 Cal.App.4th 1269, 1287.

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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.)

Welfare & Institutions Code §15610 63 provides: “Physical abuse” means any of the following. (a) assault, as defined in §240 of the Penal Code, (b) battery, as defined in §242 of the Penal Code, (c) assault with a deadly weapon or force likely to produce great bodily injury, as defined in §245 of the Penal Code, (d) unreasonable physical constraint, or prolonged or continual deprivation of food or water, (e) sexual assault , (f) use of a physical or chemical restraint or psychotropic medication under any of the following conditions (1) for punishment, (2) for a period beyond that for which the medication was ordered pursuant to the instructions of a physician and surgeon licensed in the state of California, who is providing medical care to the elder or dependent adult at the time the instructions are given, (3) for any purpose not authorized by the physician and surgeon. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Welfare & Institutions Code §15610 57 provides: (a) “neglect” means either of the following (1) the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise, (2) the negligent failure of an elder or dependent adult to exercise that degree of self-care that a reasonable person in a like position would exercise. (b) Neglect includes, but is not limited to, all of the following (1) failure to assist in personal hygiene, or in the provision of food, clothing or shelter (2) failure to provide medical care for physical and mental health needs.

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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.)

PLAINTIFFS’ ELDER ABUSE CLAIM AGAINST DEFENDANTS
Overview Of The Elder Abuse Act

The statute at issue is the Elder Abuse And Dependent Adult Civil Protection Act It is found at California Welfare and Institutions Code section 15600, et seq. The Act is referred to here as simply the Elder Abuse Act.

The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker, 20 Cal. 4th 23, 33 (1999). The Elder Abuse Act was originally passed in 1982 in recognition that dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons. Id. Subsequent amendments refined the 1982 enactment, but the focus remained on reporting abuse and using law enforcement to combat it. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In 1991, the California Legislature passed amendments to the Act shifting the focus to private, civil enforcement of laws against elder abuse and neglect. Delaney, 20 Cal. 4th at 33. The Legislature declared that “infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.” Cal. Welf. & Instit Code § 15600(h).

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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.)

LAW AND ARGUMENT

Directed Verdict Standard cont.

In evaluating the evidence submitted by a plaintiff, the court may focus on the quality, rather than the quantity, of the evidence. A small amount of very solid evidence may be considered substantial while a great deal of extremely weak evidence may be considered insubstantial. Toyota Motor Sales USA, Inc, supra at 871-872. Inferences may constitute substantial evidence but only if they are supported by logic and reason rather than speculation or conjecture. Louis & Diederich, Inc v Cambridge European Imports, Inc (1987) 189 Cal App.3d 1574, 1584-1585. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has Failed to Produce Substantial Evidence to Support Her Cause of Action for Elder Abuse
Plaintiff seeks damages and enhanced remedies, including attorney’s fees and punitive damages, under the Elder Abuse and Dependent Adult Civil Protection Action (Welfare & Institutions Code §15600, et seq), also known as the Elder Abuse Act. The Elder Abuse Act was designed to protect elderly and dependent persons from abuse, neglect or abandonment. In addition to adopting measures designed to encourage reporting of abuse and neglect, the Act gives the court discretion to award attorney’s fees to a prevailing plaintiff and allows survivors to recover pain and suffering damages in cases of intentional and reckless abuse where the elder has deceased (up to a maximum of $250,000.00). Mack v Soung (2000) 80 Cal.App.4th 966, 971-972.

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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.)

Additionally, all of the other factors a Court will consider in assessing alter ego warrant the finding that these two entities are alter egos. The XYZ Corporate Defendants appear to have complete control over the assets of Universal Healthcare (factor #1), in that all money earned by Universal Healthcare is deposited into an account that only the XYZ Corporate Defendants can access and withdraw money from. The XYZ Corporate Defendants appear to accept liabilities of the skilled nursing facilities they own (factor #4), as is illustrated by their agreement to settle and pay for government litigation involving their facilities. The XYZ Corporate Defendants and Universal Healthcare have identical equitable ownership (factor #6).

The equitable owners of these entities dominate and control them both (factor #7). Specifically, the administrator of Universal Healthcare reports to a Regional Supervisor, who is employed by the XYZ Corporate Defendants. As noted, the XYZ Corporate Defendants entirely control the financial operations at Universal Healthcare, going to far as to disallow Universal Healthcare employees from withdrawing money from the facility’s own bank account. The XYZ Corporate Defendants have a quality assurance program designed to ensure facility compliance with the laws governing skilled nursing facilities. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The officers and directors of the XYZ Corporate Defendants and Universal Healthcare are substantially similar (factor #8). Donna Lee is identified on documents filed with the state of California as the Chief Financial Officer for both of these companies. Neil A. Greene is the President of XYZ, Inc. His child, Nancy Greene, is the President of Universal Healthcare, Inc.

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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.)

DEFENDANT’S MOTION FOR DIRECTED VERDICT [C.C.P. §630]
INTRODUCTION AND PROCEDURAL HISTORY

At the outset of trial plaintiffs dismissed their negligence and certain other causes of action The action is currently proceeding on plaintiffs’ claims for elder abuse and wrongful death. Both of these causes of action are statutory in nature. Plaintiffs have now closed their case and the presentation of plaintiffs’ evidence to the jury is complete. In accordance with C.C.P. §630, the defendants now move for directed verdict as to both the elder abuse cause of action and the wrongful death cause of action on the basis that substantial evidence has not been presented which could support a verdict by the jury in favor of plaintiff on either of these remaining causes of action.

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

LAW AND ARGUMENT
Directed Verdict Legal Standard

A motion for directed verdict, like a motion for non-suit, operates as a demurrer to the evidence. Hilllard v A.H. Robins, Co (1983) 148 Cal.App.3d 374, 394; Brassinga v City of Mountain View (1998) 66 Cal.App.4th 195, 210. A directed verdict motion challenges the legal sufficiency of the opposing party’s evidence and whether such evidence can make out a prima face case for the claims asserted. See, County of Kern v Sparks (2007) 149 Cal.App 4th 11, 16.

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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.)

Ultimately, the issue of alter ego liability is one that turns on equitable considerations and is one of fact. Associated Vendors, Inc., 210 Cal. App. 2d at 837. The conditions under which the corporate entity may be disregarded, or the corporation be regarded as the alter ego of the stockholders, necessarily vary according to the circumstances in each case inasmuch as the doctrine is essentially an equitable one and for that reason is particularly within the province of the trial court. Only general rules may be laid down for guidance. Id. at 836-37. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Of the many factors, undercapitalization of a corporate entity is recognized as a particularly critical one that, if present, strongly supports alter ego liability. Morrison Knudsen Corp. v. Hancock,Rothert & Bunshoft, 69 Cal. App. 4th 223, 251 (1999). Here, Universal’s balance sheets for 2003, 2004, 2007, 2006, and 2007 show that, for each and every year, Universal’s liabilities far exceed the facility’s assets. In other words, Universal’s balance sheets demonstrate that this entity is entirely insolvent and therefore entirely incapable of paying any judgment secured by plaintiffs in this case.

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