(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
A. Decedent Was a Dependent Adult Within the Meaning of Welfare & Institutions Code § 15610.23
Welfare & Institutions Code § 15610.23 defines a dependent adult as an individual between the ages of 18 and 64, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to persons who have physical or developmental disabilities… Plaintiffs’ Fourth Amended Complaint (FAC) alleges in part:
In September 2001, forty-five year old Decedent, CLAIRE FINE, suffered a severe heart attack. Decedent ultimately survived the heart attack but was left with severe brain damage due to lack of blood flow to her brain. She was diagnosed with hypoxic encephalopathy or brain damage caused by lack of oxygen.
Due to her severe brain damage, Decedent was unable to feed herself, speak, walk or attend to her personal needs, including bowel and bladder hygiene. Defendants, and each of them, were aware of her mental and physical disabilities when she was admitted to Eastern Convalescent Hospital and knew that these disabilities continued up to the time of her transfer to an acute care facility.
B. Decedent Suffered Egregious Custodial Neglect While in the Exclusive Custody and Care of Defendants, Including Dr. XY.
Statutory Elder Abuse is defined by Welf & Inst. Code § 15610.57 in part as: (a) Neglect means either of the following:
(1) The negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. [Emphasis added.]
(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…
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
Covenant Care, Inc. V. Superior Court (2004) 32 Cal 4th 771 distinguished between professional negligence and conduct amounting to abuse of a dependent adult. Covenant Care held that neglect under EADACPA covers an area of misconduct distinct from professional negligence. Neglect within the meaning of EADACPA refers not to the substandard performance of medical services but rather to the failure of those responsible for attending to the basic needs and comforts of dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of neglect speaks not to the undertaking of medical services but to failure to provide medical care. Covenant Care, 32 Cal 4th at 783, citing Delaney v. Baker (1999) 20 Cal. 4th 23, 34.
Claims for abusive neglect are brought against custodians and care givers who abuse dependent adults, such as the Decedent, and who may or may not also be health care providers. Covenant Care, 32 Cal 4th at 786. Custodians such as nursing home personnel, nursing home operators, hospitals, administrators, physicians, corporate officers, directors and physicians may be held liable for abuse under EADACPA.
Plaintiffs FAC complaint unequivocally alleges what must be proven to make out a claim for Elder Abuse. At 57, it is alleged DAVID XY, M.D. neglected CLAIRE FINE within the meaning of Welf. &Inst. Code § 15610.57 as the individual responsible for her care by failure to assist in the personal hygiene, provision of food, clothing and shelter. He further abused CLAIRE FINE by failure to provide medical care for physical needs, failure to protec[t] sic her from health and safety hazards and failure to prevent malnutrition and dehydration. (See Part 4 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.