Personal Injury Lawyer Blog
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
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 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 civil remedies set forth in Welfare and Institutions Code §15657 read as follows:
Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
In Delaney v. Baker (1999) 20 Cal.4th 23, 31, the court defined the reckless state of mind necessary to establish a cause of action under the elder abuse statutes:
“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 (BAJI No. 12.77 [defining recklessness in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) 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.” (Rest.2d Torts, § 500, com. (g), p. 590.) n. 5
We note that the term “reckless” was defined for the jury in this case as follows: Reckless means that a person is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will cause injury. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Defendants do not claim this instruction was in error.
The wrongful state of mind required to state a cause of action under the dependent adult statute, goes beyond negligence and beyond gross negligence. Berkley v. Dowds (2007) 152 Cal.App.4th 518, 529. Recklessness means that a person consciously chooses to act knowing that it is highly likely an injury will result. The CACI instructions reflect this definition of recklessness:
[Name of defendant] acted with recklessness if [he/she] knew it was highly probable that [his/her] conduct would cause harm and [he/she] knowingly disregarded this risk. CACI 3113.
(See Part 4 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.