Personal Injury Lawyer Blog
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.
No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment (3) Failure to protect from health and safety hazards (4) Failure to prevent malnutrition or dehydration (5) Failure of an elder or dependent adult to satisfy the needs specified in paragraphs (1), (2-4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health
Welfare & Institutions Code §15657 provides that the plaintiff must establish “recklessness, oppression, fraud, or malice in the commission of this abuse” by “clear and convincing evidence.”
To prevail under this statutorily created cause of action for elder abuse, the plaintiff must produce clear and convincing evidence of something significantly more than negligence. Covenant Care, Inc v Superior Court (2004) 32 Cal.4 th 771, 788-790; Fisher v San Pedro Peninsula Hospital (1990) 214 Cal.App.3d 590, 604-605; Lopez v Southern Cal Rapid Transit Dist (1985) 40 Cal 3d 780, 795. Plaintiffs bear the burden of proving all of the elements required under the Elder Abuse Act through clear and convincing evidence, that is, they must prove it is highly probable that the particular facts of egregious conduct are true. Civil Code §3294(a); Welfare & Institutions Code § 15657; CACI 201 It is insufficient for the plaintiff to present evidence that only meets the preponderance of evident standard, Basich v Allstate Insurance Co (2001) 87 Cal.App.4th 1112, 1118-1121. It is insufficient for the plaintiff to present evidence that the defendant is guilty of negligence. And it is insufficient for the plaintiff to present evidence lacking facts of recklessness, oppressive, fraudulent or malicious conduct. Smith v Ben Bennett, Inc (2005) 133 Cal.App.4th 1507, 1518-1519. Welfare & Institutions Code §15657.2 makes it clear that the acts proscribed by §15657 do not include acts of traditional professional negligence but refer to forms of abuse or neglect performed with a state of culpability greater than negligence. Delaney v Baker, supra at 32. (See Part 4 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.