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, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse and medical malpractice case and its proceedings.)
Plaintiffs Fail to Allege a Cause of Action that Reaches Beyond Professional Negligence to the Level of Reckless Neglect of an Elder, and Thus, are Not Entitled to the Heightened Remedies Under the Elder Abuse Act.
Difference Between Allegations of Professional Medical Negligence and Elder Abuse
In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court of California set forth the difference between elder abuse claims and professional negligence claims. The legislative history of the Elder Abuse Act, as discussed in Delaney, indicates that it was intended to apply to acts of egregious abuse, while leaving acts of professional negligence not involving such egregious abuse to be dealt with under other law. Smith v. Ben Bennett, Inc. (App. 4 Dist. 2005) 35 Cal.Rptr.3d 612, 620.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
One main difference between these two areas of law is the remedies to which a plaintiff is entitled. The area of alleged elder abuse, governed by Welfare and Institutions Code, sections 15600 et. seq., has very specific prerequisites which must be met before a plaintiff may be entitled to recover the heightened remedies available under the Elder Abuse Act.
“Professional negligence” is one type of negligence, to which general negligence principles apply …; however, “in order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that [the] defendant is guilty of something more than simple negligence.” Smith v. Ben Bennett, Inc. (App. 4 Dist. 2005) 35 Cal.Rptr.3d at 618 (citing Delaney v. Baker, (1999) 20 Cal.4th at 32). The court in Smith goes on to explain that the Elder Abuse Act governs much more culpable conduct than the laws involving professional negligence.
The acts proscribed in section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Id. The court in Berkley v. Dowds (App. 2 Dist. 2007) 61 Cal.Rptr.3d 304, 313 (citations omitted), agreed, stating, acts of simple or even gross negligence will not justify the additional civil damage remedies. Where the elder or dependent adult has died, the neglect or abuse resulting in pain or mental suffering must amount to recklessness, oppression, fraud or malice in order to justify the heightened remedies. (See Part 4 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.