(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/medical malpractice case and its proceedings.)
Plaintiff will not be able to state a prima facie case of neglect by clear and convincing evidence. With regard to plaintiff’s pressure sore, it started out as a friction or shear injury that occurred during a transfer to or from her bed. Plaintiff’s expert will opine it occurred when plaintiff was getting occupational therapy. There can be no possible argument to equate this injury with the level of conduct necessary to entitle plaintiff to punitive damages. Such injuries can and do happen in hospitals, particularly with obese, totally dependant patients such as plaintiff.
The expert testimony at trial, and opinions of the treating physicians at the time, will that the worsening of the initial injury was a function of plaintiff’s underlying medical condition. Plaintiff’s experts have conceded this. Plaintiff will not be able to show, by clear and convincing evidence, that any of the alleged negligence that occurred after the initial injury caused further harm.
Similarly, the events of October 10, 2006, cannot equate with elder abuse. Plaintiff’s claim of inadequate monitoring cannot rise to the level of reckless or conscious disregard of plaintiff’s safety; prospectively there was no way any of the staff could have known how long it would take for the transport department to transport plaintiff back to her room. Further, the nurse who was caring for plaintiff exercised his judgment in addressing her blood pressure; he did not neglect her. Plaintiff’s liability theories are based upon a retrospective analysis together with assumptions unsupported by the evidence. The argument that the should have called a physician, or that he should have taken other measures to address plaintiff’s blood pressure cannot satisfy what is required to establish a prima facie case of elder abuse by clear and convincing evidence.
Employer Liability for Elder Abuse
For an employer like MC, damages for elder abuse cannot be awarded upon relying on theories of respondeat superior. To the contrary, as set forth in Welfare & Institutions Code § 15657(c) the plaintiff must make the same showing as that required by Civil Code §3294(b) for punitive damages against an employer. Civil Code §3294(b) states:
(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.
Thus, for the plaintiff’s prima facie case she must show that a managing agent of MC either (1) knew about the unfitness of a particular employee who recklessly caused plaintiff harm, and employed that person with a conscious disregard of the rights and safety of others; (2) authorized or ratified the wrongful conduct (i.e. reckless failure to provide any care to plaintiff); or, (3) was himself or herself guilty of oppression, fraud or malice with regard to plaintiff. Plaintiff has no such evidence, let alone clear and convincing evidence. Plaintiff can only rely on speculation. (See Part 10 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.