Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this medical malpractice 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.
(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.)
PLAINTIFF HAS SUFFICIENTLY STATED A CAUSE OF ACTION FOR ELDER ABUSE
XYZ claims that the standard of pleading is different for an elder abuse claim. Though a statutory cause of action is to be plead with particularity, there is no heightened pleading standard. Plaintiff has alleged each element of a cause of action pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) Welfare & Institutions Code §15600, et seq., and the facts sufficiently, and with particularity, set forth XYZ’s pattern of reckless neglect of Mr. Lee.
PLAINTIFF HAS SUFFICIENTLY ALLEGED RECKLESS NEGLECT
Defendant’s argument that the facts regarding XYZ’s conduct do not describe “egregious” conduct, misstates the elements of the Elder Abuse Act.
The Elder Abuse Act provides for heightened remedies under W&I Code §15657 and applies to health care providers who recklessly neglect elder and dependent adults. Delaney v. Baker (1999) 20 Cal.4th 23, 30-31. As the court in Benun v. Superior Court (2004) 123 Cal.App.4th 113, 119, stated, To establish elder abuse, a plaintiff must show defendant was guilty of recklessness, oppression, fraud, or malice in the commission of [neglectful …] elder abuse]. (W&I Code §15657.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The Elder Abuse Act defines the abuse of an elder to mean “physical abuse, neglect, … ” or “other treatment with resulting physical harm or pain or mental suffering,” or “the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (W&I Code §15610.07(a) and (b)).
Neglect is defined as the negligent failure of any person having the care or custody of a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise, as defined in W&I Code §15610.57(a)(1). Neglect includes the failure to provide medical care for Mr. Lee’s physical and mental health needs (W&I Code §15610.57(b)(2)) and the failure to protect Mr. Lee from health and safety hazards (W&I Code §15610.57(b)(3)). Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1518-1519. The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, 31-32, defined recklessness as, Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur [citations]. Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions, but rather rises to the level of a conscious choice of a course of action … with knowledge of the serious danger to others involved in it. (See Part 4 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.