Sacramento Injury Lawyer Blog

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Wrongful Death Damages

Ms. Hill's daughter has a claim for wrongful death. These claims will not be capped by MICRA for the same reasons discussed above in the preceding section, namely that is an elder abuse case and MICRA does not apply to elder abuse causes of action under Covenant Care, Delaney, Benun, and Country Vila, among others.

Punitive Damages Under California Civil Code Section 3294

Plaintiffs' evidence demonstrates that defendants' conduct was despicable and was carried out with a willful and conscious disregard for the rights and safety of others. This is malice. Conduct punishable by California Civil Code section 3295 involves intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Cal. Civ. Code § 3294(c). From this conduct, it can be inferred that XYZ had the intention of depriving Ms. Hill of her legal right to be treated within the standard of care set by the federal and state regulations and their own policies and procedures, and, of course, causing her severe injury and death. Plaintiffs therefore have put forth evidence which could unhesitatingly persuade every reasonable mind that defendants' conduct was so base, vile or contemptible that it should be punished. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

According to the United States Supreme Court, a court imposing punitive damages should assess, (1) the degree of reprehensibility of the defendant's conduct, (2) the ratio of punitive damages to compensatory damages, and (3) the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases. BMW of North America, Inc. v. Gore, 517 U.S. 559, 574-76 (1996).

Continue reading "Huge Damages Award Expected In Sacramento Elder Abuse Suit, Part 20 of 20" »

http://www.moseleycollins.com/lawyer-attorney-1245027.htmlIt is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

MICRA Does Not Apply To Elder Abuse Act Actions cont.

The California Supreme Court has drawn precisely this distinction between substandard care (professional negligence) and a health care provider's total abdication of his responsibility to provide care (elder neglect abuse) in separating conduct that falls within the Elder Abuse Act from conduct that does not:

It is true that statutory elder abuse includes "neglect as defined in Section 15610.5," which in turn includes negligent failure of an elder custodian "to provide medical care for the elder's physical and mental health needs." But as we explained in Delany, "neglect" within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from "professional negligence." As used in the Act, neglect 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 the elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations." Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. Covenant Care, 32 Cal. 4th at 783 (citations omitted).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Skilled Nursing Facility Team Neglected Elderly Sacramento Patient, Part 19 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Attorneys' Fees And Costs

Under the Elder Abuse Act, plaintiff's attorneys' fees and costs are a part of the damages award to the plaintiffs. Cal. Welf. & Instit. Code § 15657. Notably, attorneys' fees under section 15657 are unilateral to the Elder Abuse victim, and may not be awarded to defendant. Id. The attorneys' fees and costs incurred thus far in this case are substantial.

The actual number of hours spent in litigation is only a starting point for determining the amount of fees that will be awarded after trial. The hourly computer is known as the lodestar, which may be multiplied based on certain factors, including the novelty or difficulty of the questions presented and the skill of the prosecuting attorney; the extent to which the litigation precluded other employment by the attorneys; the contingent nature of the fee; the importance of the litigation; delay in receiving attorneys' fees; whether substantial time was devoted to the litigation; success in achieving the ultimate purpose of the litigation; and the reputation and professional standing of the prosecuting attorney. Serrano v. Priest, 20 Cal. 3d 25, 49 (1977). The facts here are well suited for a multiple of at least 1.5 to the attorneys' fees in this case. See, id., (1.4 multiplier); Coalition for LA County Planning etc. Interest v. Board of Supervisors, 76 Cal. App. 3d 241, 251 (1977) (2.0 multiplier).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Wrongful Death Of Elderly Sacramento Woman At Nursing Facility Subject Of Lawsuit, Part 18 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Remedies Available To Plaintiffs Under The Elder Abuse Act

Emma Hill's Pain And Suffering

Under the Elder Abuse Act, pain and suffering survive the death of a victim of neglect. According to the operative section, "the damages recovered [for a decedent's pain and suffering] shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code. Cal. Welf. & Instit. Code § 15657." Plaintiffs maintain that Section 3333.2 does not in any way limit plaintiffs' recovery because it only applies to "any action for injury against a health care provider based on professional negligence." Cal. Civ. Code § 3333.2(a). As discussed in greater detail below, plaintiffs' action does not sound in professional negligence but, instead, is an elder abuse action. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

As the California Supreme Court recently has reaffirmed, an elder abuse action is separate and distinct from a professional negligence cause of action. Covenant Care, Inc. v. Superior Court, 32 Cal. 4 th 771 (2004) ( [A]s we explained in Delaney, "neglect" within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from "professional negligence.") Based on this reasoning, California courts repeatedly have found that MICRA provisions, of which Civil Code section 3333.2 is one, do not apply to elder abuse actions. See id (MICRA provision found at CCP section 425.13 does not apply to elder abuse causes of action). (See Part 18 of 20.)

Continue reading "Sacramento Family Seeks Punitive Damages For Death At Nursing Home, Part 17 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

Since the Egan decision, numerous other cases have reenforced that the litmus test for determining a managing agent is the degree to which the corporation has delegated to the employee decision-making discretion in the employee's sphere of authority, not the employee's position in the corporate hierarchy and not the employee's ability to make corporate-wide policy. Agarwal v. Johnson, 25 Cal. 3d 932 (1979) (project manager who oversaw 20-25 employees in one office of an international company with 5,000 employees was a managing agent); Textron Financial Corp. v. National Union Fire Ins. of Pittsburgh, 118 Cal. App. 4th 1061 (2004) (third party agent vested with discretion in administering insurance corporation's commercial bus program a managing agent of the corporation for punitive damages purposes).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Plaintiffs maintain that numerous Universal employees were managing agents of Universal and the XYZ Corporate Defendants because such employees were delegated all of the critical patient care functions as to Ms. Hill such that they decided on behalf of these corporate entities the care that would be provided to Ms. Hill. They then set de facto policy regarding the nursing care to be provided to Ms. Hill and whether she would be transferred to the hospital to receive medical care for her broken hip.

In this case, defendants' managing agents included Director of Nurses Shelly Brown, Station 4 Nurse Supervisor Anne Smith, and Ms. Hill's charge nurses, among others. (See Part 17 of 20.)

Continue reading "Pattern Of Abuse And Neglect At Sacramento Nursing Home, Part 16 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

The phrase at issue first appeared in Egan v. Mutual of Omaha, 24 Cal.3d 809 (1979). In Egan, an insured obtained punitive damages against Mutual of Omaha based on the conduct of employees McEachen and Segal, both claims representatives from its Los Angeles branch. Neither of these employees were officed in corporate headquarters, nor did they have any ability to dictate corporate-wide policy. See id. at 815, 823. Nevertheless, the California Supreme Court found them to be managing agents of Mutual of Omaha, specifically rejecting Mutual of Omaha's argument that the employees were not managing agents because neither was involved in high-level policy making. Id. at 822. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Egan Court explained that the "[t]he determination whether employees act in a managerial capacity" does not "hinge on their level" in the corporate hierarchy. Id. Rather, the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy. Id. at 822-23. In applying this rule to its facts, the Court held that [w]hen employees dispose of insureds' claims with little if any supervision, they possess sufficient discretion for the law to impute their actions concerning those claims to the corporation. Id. at 823. Further amplifying its decision as to how employees in one branch office of a national corporation were making decisions that will ultimately determine corporate policy, the Court explained:

Continue reading "Abuse Of Female Patient With Dementia At Sacramento Skilled Nursing Facility, Part 15 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

The Law On The "Managing Agent" Requirement (Element #7 Above)

A "managing agent" is one who "exercises substantial discretionary authority over decisions that ultimately determine corporate policy." White v. Ultramar, Inc., 21 Cal. 4th 563, 577 (1999). Contrary to the suggestion of many defendants in these elder abuse actions, a managing agent does not have to be high up in the corporation. See, e.g., Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 822 (1979). Moreover, while the definition of managing agent refers to employees who determine corporate policy, California law clearly does not require an employee to be capable of determining corporate-wide policy to be a managing agent. Instead, if the corporation delegates to the employee substantial decision-making discretion within the employee's particular sphere of authority and such sphere is an important aspect of the corporation's business, the authority exercised constitutes the "ad hoc formulation of policy and the employee exercising it is a managing agent."

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

That an employee merely need exercise substantial discretion within his sphere of authority - and need not be capable of creating corporate-wide policy - to determine corporate policy and be a corporation's "managing agent" is proven both by the facts and analysis of the case that originally coined the "determine corporate policy" phrase and by a score of cases that have found employees "managing agents" who had no ability whatsoever to define corporate-wide policy. (See Part 15 of 20.)

Continue reading "Elderly Sacramento Woman With Hip Injury Dies At Nursing Facility, Part 14 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

The Elements Of An Elder Abuse Cause Of Action

In order to establish a violation of the Elder Abuse and Dependent Adult Civil Protection Act, plaintiffs must prove all of the following elements:

1. That the Defendants and/or Defendants' employees had care or custody of Emma Hill;
2. That Emma Hill was 65 years of age or older while she was in Defendants' care or custody;

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

3. That one or more of Defendants' employees failed to use the degree of care that a reasonable healthcare practitioner in the same situation would have used by:
a. failing to assist in personal hygiene or in the provision of food, clothing, or shelter;
b. failing to provide medical care for physical and mental health needs;
c. failing to prevent malnutrition or dehydration; or
d. failing to protect Emma Hill from health and safety hazards.
4. That the employees acted with recklessness, malice, oppression or fraud;
5. That Emma Hill was harmed;
6. That the employees' conduct was a substantial factor in causing Emma Hill's harm; and
7. One or more of the following:
a. That the employees were officers, directors, or managing agents of Defendants acting in a corporate/employment capacity; or

Continue reading "Sacramento Skilled Nursing Facility Violated Elder Care Act, Part 13 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

California And Federal Regulations Governing Skilled Nursing Facilities Such As Universal Healthcare, Inc. Are A Proper Bases For Presuming Neglect In Elder Abuse Cases

Regulations that establish the standard of care under California Evidence Code section 669 (presumption of negligence) are proper as a basis for presuming neglect under the Elder Abuse Action. Norman v. Life Care Centers of America, Inc., 107 Cal. App. 4th 1233, 1244 (2003). Skilled nursing facilities in California are governed by state and federal regulations. The state regulations are known as Title 22. The federal regulations are known as the OBRA regulations.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Norman, the Court of Appeals reaffirmed the existing case law in California that plaintiffs are entitled to have the jury instructed on all relevant portions of the regulations governing skilled nursing facilities:

The California Code of Regulations title 22 regulations applicable to licensed skilled nursing facilities define those facilities' duties of care owed to their residents and therefore define duties of care applicable to elder abuse of those residents. (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 519-524, 95 Cal.Rptr.2d 336.)

In Conservatorship of Gregory, the trial court's instructions on elder abuse incorporated title 22 regulations that included numerous, specific examples of what constituted neglect in the treatment and care of nursing home patients. (Id. at p. 521, 95 Cal.Rptr.2d 336.) Conservatorship of Gregory stated:

Continue reading "Repeated Neglect Alleged In Sacramento Elder Abuse Trial, Part 12 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

The Elder Abuse Act provides for enhanced remedies including attorneys' fees and recovery for pain and suffering surviving the death of an elder upon a showing that a defendant has engaged in the reckless neglect or abuse of an elder. Cal. Welf. & Instit. Code § 15657. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under the Elder Abuse Act, "abuse" is defined as either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction or other treatment with resulting physical harm or pain or mental suffering or (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. Cal. Welf. & Inst Code § 15610.07 (emphasis supplied). Neglectful elder abuse is the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Covenant Care, Inc. v. Superior Court, 32 Cal. 4th 771, 785 (2004) internal citations and quotations omitted) (emphasis in original). The Elder Abuse Act defines neglect as, among other things, the:

(1) Failure of a health care provider to assist in personal hygiene, or in the provision of food, clothing, and shelter; or
(2) Failure to provide medical care for physical and mental health needs; or
(3) Failure to protect from health and safety hazards; or
(4) Failure to prevent malnutrition or dehydration.
Cal. Welf. & Institutions Code § 15610.57.

Continue reading ""Elder Care Act" Is Basis For Abuse Case Against Sacramento Skilled Nursing Facility, Part 11 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

PLAINTIFFS' ELDER ABUSE CLAIM AGAINST DEFENDANTS

Overview Of The Elder Abuse Act

The statute at issue is the Elder Abuse And Dependent Adult Civil Protection Act It is found at California Welfare and Institutions Code section 15600, et seq. The Act is referred to here as simply the Elder Abuse Act.

The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker, 20 Cal. 4th 23, 33 (1999). The Elder Abuse Act was originally passed in 1982 in recognition that dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons. Id. Subsequent amendments refined the 1982 enactment, but the focus remained on reporting abuse and using law enforcement to combat it. Id. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In 1991, the California Legislature passed amendments to the Act shifting the focus to private, civil enforcement of laws against elder abuse and neglect. Delaney, 20 Cal. 4th at 33. The Legislature declared that "infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits." Cal. Welf. & Instit Code § 15600(h).

Continue reading "Extremely Vulnerable Elderly Woman Dies At Sacramento Nursing Home, Part 10 of 20" »

It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Additionally, all of the other factors a Court will consider in assessing alter ego warrant the finding that these two entities are alter egos. The XYZ Corporate Defendants appear to have complete control over the assets of Universal Healthcare (factor #1), in that all money earned by Universal Healthcare is deposited into an account that only the XYZ Corporate Defendants can access and withdraw money from. The XYZ Corporate Defendants appear to accept liabilities of the skilled nursing facilities they own (factor #4), as is illustrated by their agreement to settle and pay for government litigation involving their facilities. The XYZ Corporate Defendants and Universal Healthcare have identical equitable ownership (factor #6).

The equitable owners of these entities dominate and control them both (factor #7). Specifically, the administrator of Universal Healthcare reports to a Regional Supervisor, who is employed by the XYZ Corporate Defendants. As noted, the XYZ Corporate Defendants entirely control the financial operations at Universal Healthcare, going to far as to disallow Universal Healthcare employees from withdrawing money from the facility's own bank account. The XYZ Corporate Defendants have a quality assurance program designed to ensure facility compliance with the laws governing skilled nursing facilities. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The officers and directors of the XYZ Corporate Defendants and Universal Healthcare are substantially similar (factor #8). Donna Lee is identified on documents filed with the state of California as the Chief Financial Officer for both of these companies. Neil A. Greene is the President of XYZ, Inc. His child, Nancy Greene, is the President of Universal Healthcare, Inc.

Continue reading "Lengthy Trial Expected In Sacramento Skilled Nursing Facility Death Case, Part 9 of 20" »