Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
Allen developed decubitus ulcers because the nurses in charge of his care did not turn and reposition him as required. Allen was a quadriplegic, and the nurses’ orders stated that he needed to be turned once every two hours. XYZ’s employees did not turn Allen once every two hours as required, and XYZ has admitted that its nurses failed to carry out their own orders. XYZ argues that its employees did not turn Allen as required because he refused to cooperate, and that he stated that he did not want to be turned. In support of its argument, XYZ contends that patients have a right to refuse treatment. XYZ’s position is both legally and medically unsound, as only competent patients have the right to decide what medical care to receive.
Here, Allen lacked the capacity to accept or refuse treatment. There is ample information in Allen’s medical records that indicates that Allen lacked the capacity to accept or refuse treatment. Allen was unable to read, write, or count. He was unable to manage money, and was assigned a payee for his monthly Social Security Check. Allen was also a regional center client prior to his admission at University. XYZ’s employees did not conduct a formal evaluation of Allen’s functional capacity or a psychological evaluation. Moreover, Allen was not interviewed by a psychiatrist or psychologist while a resident at University. The failure to turn Allen as required in his care plan was reckless neglect and a breach of the standard of care that is discussed in CACI Instruction 504.
XYZ’s employees knew or should have known that if they did not provide Allen with assistance with mobility, there was a high probability that he would develop decubitus ulcers based upon Allen’s high risk for pressure ulcers. Those in charge of Allen’s custodial care knew, or should have known of Allen’s high risk for developing decubitus ulcers, and they were reckless in their failure to take the necessary steps to ensure that Allen was receiving proper custodial care.
Defendant Smith is liable to Allen for dependent adult abuse, battery, and intentional infliction of emotional distress for his assault on Allen. Defendant Generic is liable for the negligent hiring of Smith, and under respondeat superior. An employer may be liable under the doctrine of respondeat superior if the employee’s tortious conduct that caused the injury resulted from a dispute that arose out of the employment relationship. Carr. v. Wm. C. Crowell Co. (1946) 28 Cal. 2d 652, 657, 171 P.2d 5; Rogers v. Kemper Constr. Co. (1975) 50 Cal. App. 3d 608, 621-624, 124 Cal. Rptr. 143. Here, Smith’s assault on Allen was the result of a dispute that arose out of his employment as a registered nurse.
DAMAGES
1. Medical Expenses: $102,540.91
2. Attorney Fees: $79,500.00
3. General damages: $150,000.00
4. Punitive damages: $20,000.00
(As to defendant Smith)
5. Reasonable conservator fees: $10,000.00
TOTAL $ 362,040.91
SETTLEMENT NEGOTIATIONS TO DATE
On December 11, 2007, Allen, through his conservator and successor in interest, submitted a C.C.P. §998 Offer to Compromise to defendant XYZ for $249,999.99. XYZ responded by submitting a C.C.P. §998 offer of a dismissal in exchange for a waiver of costs. There have been no other settlement negotiations to date.
CONCLUSION
Allen suffered serious, painful injuries as a result of defendants’ misconduct. This injury resulted solely from reckless, neglectful, and incompetent conduct attributable to the employees of XYZ responsible for Allen’s custodial care, and defendant Smith. Defendant XYZ, through its counsel, has failed to articulate any reason for not engaging in good faith settlement negotiations. Despite the defendant’s conduct to date, John Allen, through his conservator and successor in interest, Darrell Allen, is prepared to discuss a reasonable resolution to this action.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.