(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.)
Welfare & Institutions Code § 15610.57 defines the term neglect in the context of elder abuse as follows:
(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) to (4), inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health.
In Delaney v. Baker (1999) 20 Cal.4th 23, the Supreme Court addressed the difference between professional negligence and elder abuse in the context of neglect. The issue in Delaney v. Baker was whether the heightened remedies of the Elder Abuse Act could be obtained in an action against a health care provider. While the court held elder abuse could be alleged against a health care provider, the court also held the statutory framework of Welfare & Institutions Code § 15600 should not apply to situations involving mere professional negligence; the Supreme Court held something more egregious is necessary:
In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent or malicious conduct. The latter three categories involve “intentional,” “wilfull,” or “conscious” wrongdoing of a “despicable” or “injurious” nature. 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. Recklessness, unlike negligence, involves more than “inadvertence, incompetence, unskillfulness, or 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.” (20 Cal.4th, at pages 31-32.)
Section 15657.2 can therefore be read as making clear that the acts proscribed by 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. (20 Cal.4th, at page 32.) (See Part 8 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.