Personal Injury Lawyer Blog

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:

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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 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.)

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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.)

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.

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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 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

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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.)

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.

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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.)

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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