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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiffs’ Claim for NIED Is Well Pled
Negligent infliction of emotional distress (“NIED”) as a cause of action is especially useful in nursing home cases because the cause of action belongs to the resident’s individual family members and is not part of the survival action or the wrongful death action. California Elder Law Litigation: An Advocate’s Guide (Cal CEB 2005). Section 2.64.2 of the treatise provides,

“In direct victim cases, the plaintiff need not personally observe the negligent conduct, but the defendant must owe a duty of care directly to the plaintiff who claims the emotional distress, not just to the patient or other individual who is physically injured, [citations]. One can argue that a nursing home has a direct duty to a resident’s family to take good care of the resident as a service to the family, not just to the resident. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A nursing home has a duty to a patient’s family members to notify them regarding changes in the patient’s condition, [citations] If a school district deliberately conceals from parents a known risk to a student, it usurps the parents’ prerogative to protect the child, and so is liable to the parents as direct victims when the child is injured, [citations] If a skilled nursing facility operator deliberately conceals from the patient or family members developing changes in the patient’s condition, a parallel argument can be made that the family’s prerogative to protect the patient has been usurped.”

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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 case and its proceedings.)

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

A managing agent is a corporate employee who exercises substantial independent authority and judgment in decision-making so that the decisions ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567, 577.) As the California Supreme Court has held, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. (White, supra, at 577 (emphasis added).) Plaintiff has alleged ratifying conduct of defendant’s Managing Agents – its administrator and various Supervisors. Defendant’s contention, however, that the administrator or the Supervisors may not be “managing agents,” is inappropriate argument of what it believes the evidence may or may not establish at the time of trial on this issue, which of course, is not the standard on a demurrer. It is not the function of a demurrer to test the truth of the plaintiffs allegations or the accuracy with which he describes the defendant’s conduct. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It “admits the truth of all material factual allegations in the complaint …”; the question of a plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) Accordingly, defendant’s reliance on Kelly-Zurian v. Wohl Shoe Co.(1994) 22 Cal.App.4th 397 is erroneous. In Kelly-Zurian, a sexual harassment case, the court of appeal determined that, based on the evidence presented at the trial, there was insufficient evidence to prove that the plaintiff’s supervisor was a managing agent of the defendant. The issue was the sufficiency of the evidence. Contrary to defendant’s assertion, the case does not hold that an administrator is not a managing agent.

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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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Plaintiffs’ Claim for Violation of the Patients Bill of Rights Is Well Pled
In their second cause of action, Plaintiffs made a claim for violation of the Patient Bill of Rights set from in Title 22 of the California Code of Regulations, Section 72527. Section 72527 provides that [p]atients have the rights enumerated in this section and the facility shall ensure that these rights are not violated … and it specifically enumerates some 25 patient’s rights, including the right to be free from abuse. However, there is not limitation set forth in Section 72527 that suggests that a cause of action lies only where the State has taken action and the action has not been corrected as suggested by Defendants. (Demurrer 8:20 – 25.)

In fact, Section 72527(b) provides, [a] patient’s rights, as set forth above, may only be denied or limited if such denial or limitation is otherwise authorized by law. Reasons for denial or limitation of such rights shall be documented in the patient’s health record. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In contrast, the statute cited by Defendants is Health & Safety Code Section 1417 et seq., also known as the Long-Term Care, Health, Safety, and Security Act of 1973 (hereafter the Long Term Care Act ). The intent of the Long Term Care Act was to establish a citation system for the imposition of civil sanctions by the State against long-term health care facilities in violation of state and federal laws and regulations. There is nothing in the Long Term Care Act that limits a patient’s rights under Title 22 of the California Code of Regulations, Section 72527.

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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 case and its proceedings.)

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

Ratification may be express or implied based on the conduct of the principal from which an intention to consent to or adopt the act may be fairly inferred. Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73. The word, ratify means to approve and sanction; to make valid; to confirm; to give sanction to; to authorize or otherwise approve conduct retroactively, either expressly or by implication. Black’s Law Dictionary (6th ed. 1990) p. 1262, col. 1].For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Ratification … may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee’s actions by the corporate agent. Such ratification may be inferred from the fact that the employer, after being informed of the employee’s actions, does not fully investigate and fails to repudiate the employee’s conduct by. redressing the harm done and punishing or discharging the employee. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621.) Failure to repudiate a party’s acts is itself evidence of ratification. Streetscenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233.

The inferences which may be drawn from all of these facts is that Defendant’s managing agents – the supervising nurses, the supervisor of defendant’s social services department, and Defendant’s administrator, knew of the staff’s violation of Mr. White’s Patient Care Plan, physician’s orders, and policies and procedures, and by dismissing the complaints and refusing to investigate, attempted to hide or deny these facts.

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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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendants Have Improperly Interjected New Facts in Their Demurrer

Defendants assert in their Demurrer that Abbey had severe co-morbidities which included Parkinson’s and dementia, which specifically prevented her own ability to eat. (Demurrer 6:7 – 9.) Those claims by Defendants are not supported by the facts set forth in the FAC. Defendants repeated references of Abbey’s “co-morbidity” (i.e., the coexistence of two or more disease processes) is nothing more than a red herring and appears an attempt to suggest that because Abbey had Parkinson’s and dementia then she must have been near death. That is simply untrue.

Rather, in paragraphs 30 and 31 of the FAC, Plaintiffs alleged that Defendants should have been aware of the serious risks associated with dysphagia (difficulty swallowing) since Abbey had Parkinson’s and the skilled nursing facility and its nurses needed to carefully monitor her swallowing abilities. They did not, which failure was a clear breach of the applicable standard of care of care. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants also state, “glaringly,” plaintiffs simply gloss over the fact that Ms. Albert had several significant co-morbidities, but attempt to articulate that she was relatively healthy. (Demurrer 6:26 – 28.) Defendants again attempt to direct the focus outside of the FAC.

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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 case and its proceedings.)

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

FAILURE TO INVESTIGATE

Within the context of defendant’s staff and supervising nurses failing to follow defendant’s own Patient Care Plan and proper policies and procedures, and feeding Mr. White solid food, and failing to reposition him when required, as set forth above, Plaintiff has alleged that plaintiff’s family and friends complained to not only the supervising nurses, but also the social service supervisors, while Mr. White was still alive and under defendant’s care. On several occasions, plaintiff’s family complained to the supervising nurses on duty that Mr. White should not be given solid foods, which were dismissed by the supervisor, as the conduct continued, and for which defendant’s supervising staff refused to investigate.

Defendant’s supervising staff failed to notify Mr. White’s responsible family about the development and progression of the infected sacral ulcer. Notwithstanding these repeated complaints, defendant’s supervising nurses failed to ensure quality assurance to the physician’s orders and appropriate patient care, and the Patient Care Plans, in violation of Title 42 of the Federal Code of Regulations §482.23(B). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

After Mr. White was rendered ventilator dependent and bedridden, Mr. White’s brother contacted National ‘s supervising staff of social services and complained that his brother had been provided solid foods in violation of the swallowing problems and the orders for a puree diet. He requested defendant’s supervisors to provide an explanation for the situation, and requested an investigation. Defendant’s supervising agent of social services was dismissive, as had been the supervising nurses.

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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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

Defendants’ Fraudulent Mis-Charting Has Been Sufficiently Pled

In their Demurrer, Defendants suggest that Plaintiffs’ “failed miserably” at identifying a single instance of mis-charting. In their FAC, Plaintiffs pled that Defendants engaged in false charting. Specifically, [o]n Sunday, April 13, 2008, the first nurses’ entry was not until 2 p.m., a full 24 hours after a prior entry regarding Abbey’s sleepiness and refusal of breakfast and lunch. By 4:45 p.m. on April 13, 2008, Abbey was noted as being lethargic and nonresponsive to verbal stimuli but responsive to painful stimuli with labored breathing … During the time period of April 12 and April 13, 2008, there are a number of factual inconsistencies that clearly demonstrates blatant mis-charting by Defendants in an attempt to cover up and conceal their neglect. (FAC, paras. 36 – 37). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Thus, Plaintiffs have informed Defendants of the exact time of the mis-charting and they have provided them with the basis of the mis-charting. However, since the Decedent died as a result of Defendants’ neglect, and since Defendants are in possession of the original records (which have not yet been produced in full), Plaintiffs will need to conduct discovery to get the exact details of the false charting (i.e., once they have the opportunity to take Defendants’ nurse and caregiver staff depositions.)

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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 case and its proceedings.)

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

FACTS ALLEGED OF DEFENDANT’S RATIFICATION OF THE RECKLESS NEGLECT

For the purposes of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded and the reasonable inferences that may be drawn from those facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828; Serrano v. Priest (1971) 5 Cal.3d 584, 591. The court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Blank, supra, at 318; Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiff has alleged facts to meet the standard of Civil Code §3294(b) that defendant National approved of and ratified each wrongful act and omission of its employees, by one or more of the following: (a) by failing to discipline, reprimand or terminate any said employee or DOE Defendant, (b) by not filing or causing to file any mandatory report of suspected elder abuse or neglect pursuant to Welfare & Institutions Code §15630, (c) by billing and accepting payment for the wrongful conduct, (d) by failing to repudiate the wrongful acts and omissions as hereafter alleged, (e) by knowingly employing incompetent personnel, and (f) by knowingly failing to maintain MEDICARE federal regulatory requirements in terms of qualify of care, staffing, and quality control measures pursuant to Title 42 of the Federal Code of Regulations, §482. (See Part 5 of 10.)

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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 medical negligence case and its proceedings.)

It is also 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, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(8) Defendants’ nurses and caregivers were absolutely reckless in not receiving proper doctor’s orders for Abbey on April 8, 2008, which is the time they were definitely on notice of Abbey’s rapid and substantial weight loss and her inability to swallow (FAC, paras. 35, 42);
(9) Abbey’s family insisted that she be taken to the hospital on April 13, 2008, where she was diagnosed with severe dehydration (FAC, para. 38);

(10) It was an absolute breach of the applicable regulations to have allowed Abbey to become so severely dehydrated, which neglect was reckless in that Defendants’ exhibited a conscious disregard for the high probability that Abbey would suffer injury (FAC, para. 38 – 40); For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(11) Defendants’ nursing staff and caregivers were aware that Abbey was not drinking and yet they did nothing (FAC, para. 40);
(12) Abbey was so severely dehydrated that she had a free water deficit of a whole gallon of water (or some sixteen, 8-ounce glasses), which fluids her body desperately needed but did not receive (FAC, paras. 39 – 40);

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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 case and its proceedings.)

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

SUMMARY OF FACTS cont.

On several occasions, Mr. White’s family and friends lodged complaints with Defendant’s on-duty supervising nurses that Mr. White should not to be given solid foods, which defendant’s supervising agents disregarded and dismissed. In disregard of the Patient Care Plan, and these specific complaints to defendant’s supervising nurse, defendant continued giving Mr. White solid food. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

On or about September 28, 2006, Mr. White was again given solid food by defendant’s nursing staff causing him to choke on his food, vomit and aspirate into his lungs. The aspiration event caused prolonged respiratory failure with permanent cognitive deficits, physical injury and overall deterioration in Mr. White’s overall functioning. As a result of the food induced aspiration Mr. White was taken to the ICU where he was placed on a ventilator due to his inability to breath without mechanical assistance. Plaintiff was subsequently provided a tracheotomy and a feeding tube and was rendered bed ridden requiring total assistance with his daily care.

Following the September 28th aspiration, Mr. White remained a patient at National through October 23, 2006, and was fully dependent on defendant for repositioning while in bed to prevent the development of bed pressure sores, ulcerations and skin irregularities.

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