Sacramento Injury Lawyer Blog

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please 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 Notice was submitted on February 8, 2001, and was incorporated into the Plan approved by the Bankruptcy Court. The Supplement attached to the Notice lists the specific steps the various entities took during the reorganization process. With regard to the California properties, the following reorganization took place, which can be traced in Item l3 as follows:

B. 3: AMS Properties, Inc., which operated three of the defendant dbas, merged with and into GCI-Wisconsin Properties, Inc., a subsidiary of SunCare, Inc., with GCIWisconsin Properties, Inc. being the survivor after the merger.
D. 1: SunCare, Inc. converted from a C corporation to a Delaware limited liability company and changed its name to SunCare, LLC.

These additional documents clearly establish the relationship between the Ocean Group and SunCare, LLC, and its various dba's, the named defendants in the present law suit.

The reorganization process, as outlined in the Plan Documentary Supplement, is further authenticated by the Declaration of Daniel Smith, a Senior Vice President and Associate Counsel for Ocean Healthcare Management Company, a wholly owned subsidiary of Ocean Health Care, Inc., previously known as Ocean Post-Acute Network, Inc.

Continue reading "Elder Care Facilities Sued By Sacramento Families, Part 6 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please 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.)

(C) Sufficient Documentation of the Bankruptcy Reorganization Exists to Support Defendants' Argument for Striking All Restitution Claims Arising Out of Conduct Preceding the Confirmation Date of the Second Amended Joint Plan of Reorganization

As noted in Defendants' moving papers, Ocean Health Care, Inc., Ocean Post-Acute Network, Inc., Ocean Health Group, Inc., and their respective debtor affiliates, filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code on January 18, 2000. Ocean Group confirmed the Second Amended Joint Plan of Reorganization for the Ocean Post-Acute Network, Inc., the Ocean Health Group, Inc., and Their Respective Debtor Affiliates Dated February 1, 2001 (as Or L Modified on March 25, 2001 for Confirmation) ("the Plan") pursuant to confirmation orders dated April 3, 2001.

On May 13, 2001, the effective day of the Plan, the Ocean Group, its debtor affiliates and all successors in interest, received the discharge injunction imposed by Section IX.D of the Plan, the Bankruptcy Court's Findings of Fact, Conclusions of Law, and Order Confirming Debtors' Joint Plan of Reorganization.

Continue reading "Sacramento Elder Abuse Advocates Seek Damages From Multiple Facilities, Part 5 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please 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.)

Restitution Is Not An Appropriate Remedy for Medi-Cal or Medicare Patients

Defendants also contend that Plaintiff cannot, as a matter of law, seek restitution on behalf of those residents who receive Medi-Cal and Medicare benefits. Any party seeking to restore federal funds must do so through the federal False Claims Act, 31 U.S.C. §§ 3729-3733. Similarly, individuals seeking to restore state funds based upon false claims must proceed under the California False Claims Act, Government Code §§ 12650-12656.

As to EF's argument that Medi-Cal is akin to a loan in which Residents have an ownership interest, this argument was soundly rejected by the California Supreme Court in Kizer v. Hanna (1989) 48 Cal.3d 1. The court held, as part of a retroactivity analysis, that there is no debt created by recoupment scheme of Welfare & Institutions Code Section 14009.5. EF is, therefor, simply wrong in its bootstrap assertion that nursing home residents incur a liability at the time Medi-Cal makes payments on their behalf and that the residents, therefore, have an ownership interest in the money. To the contrary, as explained in Hanna, "the payment of Medi-Cal does not create a debt under section 14009.5, because the Department's right to reimbursement arises only after the recipient's death and even then is contingent upon conditions in existence at that time." Id., at 11. As noted in Defendants' moving papers, Section 14009.5 clearly states that there is no right to reimbursement if the recipient leaves a surviving spouse, a minor or disabled child, or an insufficient estate.

Continue reading "Sacramento Nursing Home Insurers Fight To Withhold Benefits, Part 4 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please 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.)

Further, as we had previously noted, EF makes no allegations of any negative impact on any specific resident caused by the alleged under staffing and, thereby, fails to show a causal link between an individual resident's specific needs and the services received, regardless of the nursing hours supplied at that time. This is clearly inconsistent with DHS's enforcement policies as stated in their policy guidelines for enforcing the staffing level requirements.

Equally significant is the fact that, by merely asserting a lump sum amount that Defendants allegedly should have ... spent on staffing, and suggesting that amount should be distributed to residents without linking inadequate staffing to any allegations of specific incidents of fewer than 3.2 hours of service for a patient on a particular day, or allegations of harm suffered by individual residents, EF is in fact seeking disgorgement - a remedy clearly not allowed under Section 17200. In contrast to restitution, the remedy of disgorgement is available only in certified class actions and not in a representative action brought by a private party under the UCL. Kraus, supra, at 126-127; see, also, Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148-50.

Continue reading "Families From Sacramento-Area File Suit Against Elder Care Facility, Part 3 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please 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.)

LEGAL ARGUMENT

(A) Restitution Is Not An Appropriate Remedy in This Case

When EF set out to attack the nursing home industry under the guise of consumer protection, it initially attempted to link its broad and unsupported allegations of understaffing with potential negative patient outcomes based on certain studies. However, EF has never alleged that any resident received fewer than 3.2 hours of nursing care on any particular day or that the residents in Petitioner's long-term care facilities have suffered any adverse care outcomes as a result of the alleged failure to comply with the staffing requirements stated in Health & Safety §1276.5. Instead, EF acknowledged that it "planned to develop" the information to support more specific allegations of adverse patient outcome through discovery. That is, EF has pursued an intentional course of action to make broad, conclusory allegations first and attempt to develop the facts to support such allegations through discovery fishing expeditions later.

EF's complaint against the SunCare defendants ("Complaint") presents the request for restitution without identifying the interests of a single resident. The Complaint is entirely devoid of any allegations that any particular resident received fewer than 3.2 nursing hours of services on any given day. Nowhere does EF explain "the nature of the vested interest" that such individuals might have in monies to be restored under Business and Professions Code Section 17203.

Continue reading "Sacramento Nursing Facility Sued For Elder Abuse, Part 2 of 6" »

The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case present such issues to the court.

(Please 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.)

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE

INTRODUCTION

In a dismissive 2 1/2- page document, Plaintiff ELDER FOUNDATION ("Plaintiff" or "EF") objects to the Motion to Strike Restitution Claim filed by Defendants SunCare, LLC, et al. ("Defendants" or "SunCare") on the grounds that the issues raised by Defendants have been ruled on by this Court and that the motion raises no new arguments with regard to Section III A (restitution not an available remedy) and B (restitution inappropriate for Medi-Cal/Medicare patients). Plaintiff, therefore, ostensibly acting in the interest of judicial economy, simply incorporates its opposition to the Covenant Care and Health Care motions previously heard by this Court and asks the Court to come to the same conclusion it did with regard to these motions.

As to Defendants' Section III C argument that claims arising out of actions that occurred during Defendants' bankruptcy reorganization are barred, Plaintiff asserts that because the argument is supported by a declaration, the Court must deny the motion.

Plaintiff's blase treatment of SunCare's motion ignores not only the additional arguments made by Defendants to support both its demurrer and the motion to strike the restitution claim, but fails to acknowledge that a declaration can be used under certain circumstances.

Continue reading "Sacramento Elder Care Organization Sues Nursing Facility, Part 1 of 6" »

(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.)

e. The PlaintifFs Should Have the Benefit of Delayed Accrual of the Elder Abuse Claims.

The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue. [Seelenfreund v. Terminix of Northern Calif., Inc., supra, 84 Cal. App. 3d at 138, see Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 406, the rule applies where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured Two common themes support the delayed discovery rule:

First, the discovery rule is applied to actions in which it is generally difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries (e.g., where the cause or injuries are hidden). [E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 CA4th 1308, 1318] Second, courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule (e.g., where confidential or fiduciary relationships are involved). [See Parsons v. Tkkner (1995) 31 CA4th 1513, 1526]

In this case the plaintiffs had to learn about why Paul Steinford died. They could not learn it from the medical records alone but rather had to have an expert interpret those for them. This is exactly the circumstances where the court can develop the rule to achieve justice.
The common law discovery rule, where applicable, indefinitely delays accrual of a cause of action until the plaintiff discovers or reasonably has cause to discover the facts constituting it.

Continue reading "Wrongful Death Of Sacramento Man Leads To Elder Abuse Suit, Part 8 of 8" »

(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.)

d. The Doctors Are Accused by Sufficiently Allegations of Reckless Neglect Under the Elder Abuse Act.

To establish elder abuse a plaintiff must show a defendant was guilty of recklessness, among other possibilities. [Benun v. Sup.Ct. (Country Villa East)] (2004) 123 Cal. App. 4th 113, 120] Then the controlling statute of limitations is for personal injury, hence two years. [Ibid]

The Second Cause of Action states that the doctors were reckless and showed a deliberate disregard of a high probability that injury would occur. That is recklessness. [Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1019 (citing other cases)]
In 1991, in order to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults (Welf. & Inst. Code, § 15600, subd. (j)), the Legislature added Welfare and Institutions Code section 15657 to the Act.

That section makes available, to plaintiffs who prove especially egregious elder abuse to a high standard, certain remedies in addition to all other remedies otherwise provided by law (Welf. & Inst. Code, § 15657). [1] Specifically, a plaintiff who proves by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or financial abuse (as these terms are defined in the Act), and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of such abuse, may recover attorney fees and costs. (Id., subd. (a), incorporating by reference Welf. & Inst. Code, §§ 15610.30, 15610.57, 15610.63.)
Covenant Care, Inc. v. Superior Court (Inclan) (2004) 32 Cal.4th 771, 779-780.

Continue reading "Sacramento Man Suffers Elder Abuse And Wrongful Death, Part 7 of 8" »

(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.)

Tina Steinford, a distraught daughter of Paul Steinford, decided that her father should not have suffered and died but only could guess why. She did not have any material facts; did not have any medical records until April 2007; could not afford hiring a qualified doctor to investigate; and has no training in medicine or nursing. Her father was 84 years old, so a reasonable person does not normally suspect wrong doing or premature death.

She did not know and the medical records did not disclose the known side effects of the psychotropic drugs administered. Rather, those records refer to failures of the respiratory system, failure of the kidneys, sepsis and, unltimately, heart failure. Upset and too poor to pay for professionals, she continuously sought help but did not find it until after she contacted the Citizens Commission on Human Rights. A referral from that group to this counsel lead to the prompt involvement of a doctor that understands that psychotropic drugs poison older people. That immediately lead to the filing of this lawsuit.

The history of the delayed discovery rule preceding the passage of me three year outer limit in 1975 evidenced the possibility that the commencement of the running of the statute might be deferred indefinitely. [Brown v. Bleiberg (1982) 32 Cal. 3d 426, 432] And so in the Brown case a woman that had a foot surgery for corns sued her doctor twelve years later because unknown to her he removed bones.

Continue reading "Elderly Sacramento Man Poisoned At Nursing Facility, Part 6 of 8" »

(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.)

Finally, in 2007, after searching diligently to find help to review the suspected claim, Ms. Steinford found her present counsel who agreed to review the matter, and upon reading the records helped retain a competent physician who expeditiously reviewed the records, an opinion was rendered of negligence such that current counsel could on May 2, 2007, for the first time properly issue notices pursuant to Code of Civil Procedure section 364.

Prior to the actions undertaken by current counsel Ms. Steinford did not have knowledge about the negligent causation ofher father's death sufficient to bring an action sounding in medical negligence or elder abuse. Based upon these facts the statute of limitations for both medical negligence and elder abuse based upon medical negligence should be equitably tolled to allow this action to proceed or in the alternative the defendants should be equitably estopped from asserting the statute of limitations because of the false explanation of the course of death.

In addition to these facts alleged to show diligent pursuit of the factual basis to bring a claim, in this brief the plaintiffs also say:

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity.

Continue reading "Sacramento Doctors Sued For Medical Negligence And Elder Abuse, Part 5 of 8" »

(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.)

The legislature, in codifying the discovery rule, has also required plaintiffs to pursue their claims diligently by making accrual of a cause of action contingent on when a party discovered or should have discovered that his or her injury had a wrongful cause. (See, e.g., Code Civ. Proc, §§ 340.1, subd. (a) [ within three years of the date the plaintiff discovers or reasonably should have discovered ], 340.15, subd. (a)(2) [ [w]ithin three years from the date the plaintiff discovers or reasonably should have discovered ], 340.2, subd. (a)(2) [ [w]ithin one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known ], 340.5 [ one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered ].)

This policy of charging plaintiffs with presumptive knowledge of the wrongful cause of an injury is consistent with our general policy encouraging plaintiffs to pursue their claims diligently. (Norgart, supra, 21 Cal.4th at p. 395.)

Simply put, in order to employ the discovery rule to delay accrual of a cause of action, a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury.

Continue reading "Sacramento Victim's Daughter Files Elder Abuse Action Against Nursing Facility, Part 4 of 8" »

(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.)

The Complaint Properly Explains the Basis for Tolling (Due to Delayed Discovery) and Should be Allowed to Proceed.

The delayed discovery rule allows a plaintiff to bring a claim beyond the one year limitation period for medical malpractice if the criteria is met. The issue in this case is whether a plaintiff who does not have a reasonable basis for suing within one year and is trying diligently to determine the facts is precluded from suing later when the facts are discovered within the outer three year limit. The case law says that the plaintiffs can proceed.

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc, § 312 [ Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued ]; Norgart, supra, 21 Cal.4th at p. 397.) In other words, statutes of limitation do not begin to run until a cause of action accrues. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 487;
Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have "information of circumstances to put [them] on inquiry" or "if they have" the opportunity to obtain knowledge from sources open to [their] investigation.

Continue reading "Sacramento Nursing Facility Doctors Sued For Malpractice, Part 3 of 8" »

(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.)

The Pleadings.

The Judicial Council complaint states that Tina Steinford and the Estate of Paul Steinford complain that eleven doctors and two institutions negligently caused the death of Paul Steinford and committed elderabuse. Since the filing of the complaint Universal Hospital and Camino Towers have been dismissed from the case, along with doctors Washington, Greene, and Black.

The thrust of the negligence claim is that Mr. Steinford was negligently prescribed anti-psychotic medications without his consent.

The Plaintiffs explain why the complaint was filed July 31, 2007, more than one year following the death of Mr. Steinford on May 5, 2005. It is important for the court to appreciate that the black box warning on Risperidone (Risperdal) refers to the dangers of strokes in elderly people. Mr. Steinford did not die from a stroke. So it is evident that Ms. Steinford was guessing and grasping at straws until she found present counsel and a qualified phsician to review the records and advance the theories announced.

The Legal Argument.

a. A Demurrer Examines the Pleading to Determine Its Legal Sufficiency.

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Continue reading "Elderly Sacramento Man Dies In Nursing Home, Part 2 of 8" »

(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.)

OPPOSITION TO DEMURRER

The plaintiffs oppose the demurrer brought by defendant doctors White, Black, Greene, Brown, Smith, and James, because the plaintiffs have set out a reason why the statute of limitations was extended beyond one year and for the time it took to file the action and that the elements of a claim for elder abuse are stated. Moreover, if the court finds any deficiencies with the complaint, the plaintiffs seek leave to amend consistent with the statements made about their claims.

MEMORANDUM OF LAW

Overview of the Case.

This case is about the poisoning of Paul Steinford by means of multiple psycho tropic drugs that should never have been used but certainly should have been stopped when the symptoms started that lead to his death. Many of those symptoms are disclosed by the drug companies as side effects of the psycho tropic drugs. All of the treating doctors should have known that the drugs had those known side effects that included symptoms that Mr. Steinford exhibited to them including difficulty swallowing and toxicity. Dr. Washington arrived on April 26, 2005, just before Mr. Steinford's untimely death, and removed him from the psycho tropic drugs, regrettably too late to reverse the effects of those drugs and save his life.

Dr. Washington is dismissed from this lawsuit and deeply thanked for his correct actions obviously reflecting knowledge and caring. We apologize for including him. The fact of his removing Mr. Steinford from the harmful drugs was just discovered. All doctors arriving on or after April 26, 2005 have been dismissed.

Continue reading "Sacramento Family Sues Nursing Facility For Elder Abuse, Part 1 of 8" »

(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.)

SPECULATIVE TESTIMONY REGARDING PLAINTIFF'S LEVEL OF FUNCTIONING WOULD BE HIGHLY PREJUDICIAL

The court has inherent power to grant a motion to exclude Any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Clement v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451; Peat. Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 288.

Evidence Code §352 allows the court to exclude evidence where there is a substantial danger that the probative value will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 879, 904.

Evidence Code §402 allows this court to hear and determine the question of the admissibility if evidence outside the presence or hearing of the jury. Mize v. Atchison, Topeka & Sante Fe Ry. Co. (1975) 46 Cal. App.3d 436, 448.

THE COURT MAY EXCLUDE AN EXPERTS OPINION WHERE BASED ON SPECULATION OR CONJECTURE

An expert may not base his/her opinion on speculation or conjecture. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 338; Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal. 2d 871, 882 (Experiments based largely on speculation or conjecture are not the proper subject of expert testimony). An expert's opinion may also be excluded if it is not shown to be reliable. People v. Price (1991) 1 Cal. 4th 324, 419-420; People v. Carter (1957) 48 Cal. 2d 737, 752.

Continue reading "Elder Abuse Victim Challenges Expert In Sacramento Nursing Home Wrongful Death Case, Part 2 of 2" »

(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.)

Plaintiff John Allen’s Motion In Limine to Exclude Sammi Nunn, R.N. from Testifying Regarding Her Opinion on Plaintiff's Functional Capacity and Competency

STATEMENT OF FACTS

The defense has designated Sammi Nunn, R.N., as an expert. Plaintiff believes that part of her testimony will consist of opinions about plaintiff's functional capacity and competency while an inpatient at defendant's University Hospital and Generic Nursing, Inc.’s residential facility in Sacramento.

GROUND FOR EXCLUSION

1. The expert witness is not qualified to render an opinion about plaintiffs functional capacity and competency.

A NURSE WITH NO EXPERIENCE IN PSYCHOLOGICAL EVALUATIONS IS NOT QUALIFIED TO TESTIFY ON THE ISSUE OF PLAINTIFF'S FUNCTIONAL CAPACITY.

The Evidence Code §720(a) provides that A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his [her] testimony relates. According to Sammi Nunn's Curriculum Vitae, she is a registered nurse with no background in conducting psychological evaluations to determine an individuals functional capacity. In this matter, plaintiff was a mentally disabled individual with an IQ of 66. Like Dr. Goldberg, Sammi Nunn is not qualified to render an opinion regarding plaintiff's functional capacity and competency. (See Part 2 of 2.)

Continue reading "Family Of Sacramento Man Who Died Files Suit For Elder Abuse, Part 1 of 2" »

(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.

Continue reading "Wrongful Death Of Sacramento Man In Elder Care Facility, Part 3 of 3" »

(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.)

INJURY

As discussed above, Allen developed stage III decubitus ulcers on his buttocks, stage IV decubitus ulcers on his left hip, and a stage II decubitus ulcer on his left ankle. Allen developed a bone infection called osteomyelitis that resulted from his decubitus ulcers. In order to treat the osteomyelitis, Allen underwent surgical process called debridement that took place on May 16, 2005. Photographs of Allen's decubitus ulcers will be available at the settlement conference. As a result of the assault, Allen suffered injuries to the chest, shock, humiliation, and fear.

LIABILITY

A health care provider may be held liable for reckless neglect for failing to take appropriate action, repeatedly or over a significant period of time, when a dependent adult suffers a decline or change in condition. Sababin v. Superior Court (2005) 144 Cal. App. 4th 81, 90, 50 Cal. Rptr. 3d 266. The defendant in Sababin, like defendant XYZ, argued that it cannot be held liable for dependent adult abuse unless it had injured the patient due to a total absence of care. The court disagreed. The court concluded that even [I]f some care is provided, that will not necessarily absolve a care facility of dependent adult abuse liability.

If a care facility knows that it must provide a certain type of care on a daily basis, but provides that care sporadically, or is supposed to provide multiple types of care, but only provides some of those types of care, withholding of care has occurred. In those cases, the trier of fact must determine whether there is a significant pattern of withholding portions or types of care.

Continue reading "Sacramento Elder Abuse Victim Dies, Part 2 of 3" »

(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.)

Plaintiff John Allen ("Allen"), deceased, by and through his conservator, Darrell Allen, submits the following Settlement Conference Statement:

INTRODUCTION

This is an action for violation of the Elder Abuse and Dependent Adult Act ("EADACPA") and negligence against defendant XYZ MEDICAL CENTER ("XYZ") for its reckless neglect in its failure to provide adequate custodial care to Allen. This also an action for violation of the EADACPA, negligence, battery, and intentional infliction of emotional distress against defendant Paul Smith ("Smith") arising out the battery against Allen. Furthermore, this is an action against defendant Generic Nursing, Inc., ("Generic") under the doctrine of respondeat superior, and for negligent hiring and retention of defendant Smith.

STATEMENT OF FACTS

Allen, who is now deceased, was an incompetent adult as determined by the probate court. The court appointed Allen's father to be the limited conservator over Allen's person and estate. Therefore, Allen was the proper plaintiff under the EADACPA. Allen suffered from attention deficit disorder with hyperactivity, global developmental disability, and had emotional behavioral problems. Prior to his admission to XYZ's medical facility, Allen was a regional center client. An individual is eligible to be a client of the regional center if he/she has a developmental disability and has an IQ of 85 or below. Allen could not read, write, count, or manage his own finances. He was assigned a payee who managed his social security check.

On or about February 11, 2005, Allen was shot in the neck, and the shooting rendered him a quadriplegic. Shortly after the shooting, Allen was admitted to University, a branch of XYZ.
Shortly after being admitted to University, Allen was assessed for his risk for developing decubitus ulcers. The University staff at XYZ concluded that Allen's risk for developing decubitus ulcers was high. In order to satisfy his nutritional needs, Allen was given a percutaneous endoscopic gastrostomy tube (PEG) that was monitored by his dietician.

Continue reading "Sacramento Man Dies In Nursing Home, Part 1 of 3" »

(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.)

THE COURT SHOULD OVERRULE DEFENDANT'S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN'S CLAIM FOR DAMAGES UNDER CAL. CIV. CODE §3345.

Defendant argues that Allen cannot recover under Cal. Civ. Code §3345 because there are no fines or penalties to be trebled in this case. This argument is without merit. Allen is seeking the statutory penalties against defendants XYZ Medical Center under Cal. Welf. & Inst. Code §15630(h), which provides for a fine of $1,000 for the failure to report the abuse of an elder or dependent adult, and a fine of up to $5,000 if the failure to report the abuse was willful. Allen is also seeking punitive damages against defendants Paul Smith and Generic Nursing, Inc. Punitive may be trebled pursuant to Cal. Civ. Code §3345. Therefore, there is a proper basis upon which treble damages may be awarded in this action, and the court should overrule defendant's motion to strike Allen's claim for treble damages.

IF THE COURT FINDS THAT ALLEN HAS NOT STATED SUFFICIENT FACTS TO SUPPORT HIS CAUSES OF ACTION, ALLEN REQUESTS LEAVE TO AMEND HIS COMPLAINT.

The Cal. Code of Civ. Proc. §472a(c) provides that: When a demurrer is sustained, the court may grant leave to amend the pleading upon any terns as may be just and shall fix the time within the amendment or amended pleading shall be filed.

Continue reading "Severe Abuse and Neglect By Sacramento Hospital Leads To Lawsuit, Part 7 of 7" »

(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.)

Here, Allen may bring a civil action under section 15656 of the Welfare and Institutions Code. In Laczko v. Jules Meyers, Inc. (1969) 276 Cal. App. 2d 293, 295, 80 Cal. Rptr. 798, and Michael R. v. Jeffrey B. (1984) 158 Cal. App. 3d 1059, 205 Cal. Rptr. 312, the court held that a violation of a statute embodying a public policy is actionable even though no specific civil remedy is provided in the statute itself. Any injured member of the class whom the statute was designed to protect may include the violation of the statute as a cause of action in a civil matter.

There is nothing in Welfare and Institutions Code 15656 that precludes Allen from bringing a civil action based upon that state. The general purpose of the EADACPA is to protect elders and dependent adults from gross mistreatment in the form of abuse and custodial neglect. Delaney v. Baker (1999) 20 Cal. 4th 23,33, 82 Cal. Rptr. 2d 610. Allen is a member of the class that section 15656 was designed to protect. As a member of this class, Allen may bring a civil action balked upon section 15656, even though the statute does not provide for civil remedies. The legislature did not intend to prevent an individual from asserting a cause of action in a civil matter under Welfare and Institutions Code §15656.

Allen has alleged a viable claim under Cal. Welf. & Inst. Code §15656.

As stated above, less particularity in pleading statutory causes of action is needed when the defendant may be assumed to have knowledge of the facts equal to or superior to that possessed by the plaintiff. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463, 474, 20 Cal. Rptr. 69; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324.

Continue reading "Family Of Elderly Sacramento Patient Sue Nursing Home For Abuse, Part 6 of 7" »

(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.)

Here, Allen alleges that defendants were responsible for his custodial care due to his physical and mental disabilities. He further alleges that defendants abused this position when defendant and its employees [E]ither caused, contributed to, or witnessed the injuries sustained by plaintiff and deliberately and callously failed and refused to seek or provide appropriate medical attention for those injuries, all with the intention to delay or prevent discovery of their own involvement and responsibility in the injury causing event and its aftermath.

Allen also avers that the defendant's acts were unreasonable and were done for the "[P]urpose of causing plaintiff to suffer pain, mental anguish, and severe emotional and mental distress." Allen was also in a depressed state of mind due to the fact that he was a victim of a shooting that rendered him paralyzed, and defendants were aware of this fact that made him susceptible to further mental distress. These allegations, along with Allen's factual allegations of abuse and neglect, are sufficient to state a cause of action for intentional infliction of emotional distress. Therefore, defendant's demurrer should be overruled with respect to this cause of action.

THE COURT SHOULD OVERRULE DEFENDANT'S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR DEFENDANT'S VIOLATION OF CAL. WELF & INST. CODE §15656

Allen may properly assert a claim under Welf. & Inst. Code §15656.

Continue reading "Sacramento Man Suffers Elder Abuse And Neglect At Local Facilities, Part 5 of 7" »

(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 has properly alleged wrongful misconduct on the part of an officer, director, or managing agent of defendant.

The Cal. Welf. and Instit. Code §15657.5(b)(2) provides that a plaintiff must satisfy the requirements of Cal. Civ. Code §3294(b) before any damages or attorney fees allowed under the EADACPA may be imposed against the employer.

Under section 3294(b) of the Civil Code, an employer may be deemed liable for punitive damages based upon the acts of an employee if:

(1) The employer had advanced knowledge of the unfitness of the employee and employed him/her with a conscious disregard of the rights or safety of others;
(2) The employer authorized or ratified the wrongful conduct for which the damages are awarded; or
(3) The employer was personally guilty of oppression, fraud, or malice.

For pleading purposes, an general allegation of agency is sufficient in overcoming a demurrer, as an allegation of agency is one of ultimate fact.. Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222, 235, 192 Cal. Rptr. 492. Here, Allen alleges that the conduct of defendant's employees was carried out by a managing agent, or by an officer or director of defendants. He also alleges that A managing agent, officer, or director of defendant authorized and ratified each defendant's conduct. Therefore, the court should overrule Defendant's demurrer with respect to Allen's cause of action for violation of the EADACPA.

Continue reading "EADACPA Elder Abuse Charges Filed Against Sacramento Hospital, Part 4 of 7" »

(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.)

The allegations in the complaint are sufficient to withstand defendant's demurrer. Allen alleges that he is a dependent adult under the EADACPA. He alleges conduct that constitutes Neglect under Cal. Welf. & Inst. Code §15610.57 by stating the following:

(1) While an inpatient at defendant's medical facility known as University Hospital, plaintiff developed severe stages three and four decubitus ulcers on his body, which was known but concealed, or in the exercise of reasonable care, should have been [known] by defendant and its employees. As a result of the decubitus ulcers, plaintiff suffered injuries which contributed to his existing physical injuries, and caused delays in his physical therapy. The injuries that were the result of the development of the decubitus ulcers were legally caused by the acts and/or omissions of defendants. The defendants, knowing of the injury and the likelihood that an injury would occur if they failed to act, deliberately failed and/or refused to provide timely assessment and treatment of plaintiff's injuries. Defendants also failed and/or refused to investigate and/or document the circumstances and cause of the injuries suffered by plaintiff;

(2) While plaintiff was an inpatient at University Hospital, defendant, and its employees abandoned plaintiff for an extended period of time without nursing or other appropriate attention, despite his weakened condition and complete dependence upon such personnel;

(3) Defendants, and each of them, intentionally acted to cover up the existence and cause of plaintiff's injuries and circumstances as described above, by failing and/or refusing to invest gate and/or appropriately document such occurrences by failing or refusing to notify family members, or appropriate law enforcement or regulatory personnel of such occurrences;

Continue reading "Neglect By Sacramento Nursing Facility Subject Of Lawsuit, Part 3 of 7" »

(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.)

It is well settled that less particularity in pleading is necessary where the defendant may be assumed to have equal or superior knowledge of the facts than the plaintiff does. Burks v. Poppy Constr. Co. (1962) 57 Cal. 2d 463,474, 2 Cal. Rptr. 609; Dahlquist v. State of California (1966) 243 Cal. App. 2d 208, 212, 52 Cal. Rptr. 324; Doheny Park Terrace v. Truck Ins. (2005) 132 Cal. App. 4th 1076, 1099, 34 Cal. Rptr. 3d 157. The courts have reasoned that less particularity is required because [M]odern discovery procedures necessarily affect the amount of detail that should be required in a pleading. Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4 th 592, 608, 98 Cal. Rptr. 2d 277.

Moreover, not all statutory causes of action must be alleged with the specificity that defendant suggests. A cause of action based upon a defendant's violation of business and professions code section 17200 does not have to be alleged with specificity. Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46, 77 Cal. Rptr. 2d 709.

Here, defendant, who has been Allen's health care provider since he was hospitalized beginning February 11, 2004, may be assumed to have knowledge of the facts of this action that is equal to or superior to that of Allen. Defendant has Allen's complete medical chart in its possession. Defendant's employees at University Hospital who were responsible for Allen's custodial care, including the nurses, knew or should have known that because Allen was paralyzed, he needed regular assistance with turning and movement.

Continue reading "Sacramento Hospital Sued For Elder Abuse By Patient's Family, Part 2 of 7" »

(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.)

Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Demurrer and Motion to Strike Portions of Plaintiff's Third Amended Complaint

INTRODUCTION

Plaintiff John Allen ("Allen"), an incompetent adult, and Sacramento resident, by and through his conservator, Darrell Allen, requests that the Court issue an order overruling Defendant XYZ Medical Center's ("Defendant") demurrer and motion to strike portions of Allen's third amended complaint. Allen has properly alleged causes of action for Defendant's violation of the Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA"), intentional infliction of emotional distress, and violation of Cal. Welf & Inst. Code § 15656. Additionally, Allen may also seek treble damages as set forth in Cal. Civ. Code §3345 as a result of Defendant's neglectful and abusive conduct. Alternatively, Allen requests that the court grant him leave to amend if the court finds that he has not properly alleged the causes of action contained in his complaint.

DISCUSSION

THE COURT SHOULD OVERRULE DEFENDANT'S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN'S CAUSE OF ACTION FOR VIOLATION OF THE EADACPA.

Allen has alleged sufficient facts to state a cause of action for violation of the EADACPA.

Continue reading "Sacramento Man Files Elder Abuse Claim Against Nursing Facility, Part 1 of 7" »

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

Dr. XY is incorrect when he asserts that no new facts have been alleged to support Plaintiffs' cause of action for elder abuse. New facts have been alleged in the TAC and incorporated by reference in paragraphs 34-35.

For these reason, Defendants' Demurrer should be overruled and this lawsuit be allowed to proceed to discovery and trial by jury.

CIVIL CODE SECTION 337.4 LIMITATIONS DO NOT APPLY
Defendant DAVID XY, M.D. claims that Decedent' s pain and suffering does not survive her death. He further claims that because recoverable damages are an essential element, Plaintiffs cannot make out a cause of action for Intentional Infliction of Emotional Distress. Welfare and Institutions Code Section 15657.5(b)(1) specifically provides:

The limitations imposed by Section 377.4 of the Code of Civil Procedure on the damages recoverable shall not apply.

As argued above, Plaintiffs have alleged facts sufficient to state a cause of action for abuse of Decedent, a dependent adult within the meaning of Welf & Inst. Code §§ 15600, et. seq. Therefore, Section 377.4 does not apply to pain and suffering by the defendant caused by abuse in the form of custodial neglect in this case.

Continue reading "Wrongful Death Suit Filed On Behalf Of Sacramento Woman In Nursing Facility, Part 8 of 8" »

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

Nursing notes written approximately six hours before Ms. Fine's family called the paramedics include the following entries: "Resident alert and responsive. Fluids tolerated well. Vital signs normal, no pain. No shortness of breath. No acute distress at this time. Dr. XY aware of recent lab results. Resident resting in bed, turned every two hours for comfort..."

Dr. W's notes from ABC Hospital compiled in the Emergency Department, minutes after Claire Fine left Eastern, tell a very different story. The hospital records describe Claire Fine as dehydrated, in shock due to an infection with a blood pressure of 63/37, and suffering from kidney failure. She had a feeding tube in place that was not being used to feed her. She had poor skin turgor, decubitus ulcers and contractures. Dr. W. had originally asked that she be transferred to University Medical Center but her condition was so critical that the paramedics took her to ABC Hospital because it was closer to Eastern

Dr. W. stated in his notes that Decedent was unable to respond to his questions. Perhaps the most disturbing finding was rhabdomyolysis, a condition caused by the breakdown in muscle tissue releasing a compound toxic to the kidneys. The condition occurs when a person is left to lie in one place for prolonged periods of time. Dr. W. felt rhabdomyolysis had been present for about one week. The nursing home was unable to reach Dr. XY, who returned a call placed to him by the nursing home only after Decedent had been transferred by paramedics. She died 10 days later. Claire was 53 years of age. Records indicate that she had been suffering from cancer for over one year that had gone undiagnosed and untreated.

Continue reading "Elder Abuse At Sacramento Convalescent Home Results In Death, Part 7 of 8" »

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

Despite repeated complaints from family members and assurances that Decedent's complaints of pain would be addressed, neither the nursing staff nor Dr. XY intervened in an effort to determine what was causing Decedent's deteriorating physical condition and pain.

On a visit in late October, family members were convinced Decedent was very ill. They demanded that decedent be transferred to a hospital. The nursing staff and Dr. XY refused to co-operate with the family. Because Eastern refused to seek medical attention for Decedent, and because Dr. XY failed to come to the facility to examine Decedent and refused to authorize a transfer to an acute care facility, the family called the paramedics to Eastern.

When paramedics arrived, the nursing staff refused to allow them entry to attend to Decedent. The family ultimately gained access to Eastern for paramedics. The family then fired Dr. XY and asked Dr. Steven W. to care for Decedent. Decedent was transferred to Olympic Medical Center.

“The nursing notes from Eastern compiled on the days leading up to her transfer to Olympic Hospital, an acute care hospital, forced upon Eastern by the family, read as if Decedent was awake, alert, with normal vital signs and eating a healthy diet. There is one mention of skin breakdown on her sacrum but no other indication that she is not well, in pain and not alert.

Continue reading "Doctor At Sacramento Skilled Nursing Facility Sued For Elder Abuse, Part 6 of 8" »

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

Plaintiffs' FAC alleges in paragraphs 9, 19, 20, 21, 24, 25 27, 28 and 29 that while in the care and custody of the moving party, Decedent suffered severe malnutrition, was unreasonably and continuously restrained, suffered pain that went untreated, suffered stage III decubitus ulcers, severe infection, acute untreated kidney failure, and severe dehydration. These paragraphs further allege that Defendant Dr. XY had a duty as her attending physician to ensure that her basic physical, safety and medical needs were attended to. Plaintiffs also allege that the above referenced maladies and other occurred because Dr. XY failed to monitor and assess her condition, failed to maintain accurate records, failed to provide nutrition to prevent malnutrition and fluids to prevent dehydration, failed to take proper measures to prevent skin breakdown and to monitor skin integrity, failed to monitor and respond to notification by the nursing staff that Decedent's condition had deteriorated and required his medical attention.

C. Defendants Acted with Recklessness, Oppression and Fraud.
In order to make out a claim for abuse of a dependent adult the EADACPA, 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. These three categories involve intentional, wilfull, or conscious wrongdoing of a despicable or injurious nature. College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721. These are the same allegations that are required to make out a claim for Wilful Misconduct under Civil Code §3294 which is Plaintiffs' First Cause of Action in their FAC. Defendant's Demurrer to this cause of action was previously overruled by this Court. Recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of action with knowledge of the serious danger to others involved. (Id., at 721.)

Continue reading "Elder Abuse Claim Filed In Sacramento-Area Nursing Facility, Part 5 of 8" »

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

C. There Is No Requirement That Plaintiffs Show That Dr. XY Was The Custodian of Claire Fine.
In his moving papers, Dr. XY maintains that he cannot be held liable under a theory of abuse of a dependent adult because he was not Decedent's custodian. This argument is wholly without merit. In Mack v. Soung (2000) 80 Cal. App. 4th 966, the children of an elderly woman sued her physician under the Elder Abuse statute. Dr. Soung maintained that he could not be liable under EADACPA because he was not the decedent's custodian. In overruling his argument the court specifically found:

Dr. Soung additionally claims he cannot be liable under the Elder Abuse Act because he was not Girtha's custodian or caretaker...He is wrong... neglect is not restricted to care custodians. Instead it applies generally to anyone having care or custody of the elder, and specifically mentions the [f]ailure to provide medical care for the physical and mental health needs.

The Mack court further pointed out that Dr. Soung's argument was vitiated by the California Supreme Court's decision in Delaney v. Baker (1999) 20 Cal. 4th 23. In that decision, the court held that health care professionals are not exempt from the heightened remedies triggered by § 15657 when they are guilty of reckless neglect. Here, Dr. XY had responsibility as the attending physician of Decedent to ensure that she was fed, hydrated, medicated, free of abuse, and that her medical needs were attended to.

Continue reading "Woamn Dies From Neglect In Sacramento Skilled Nursing Facility, Part 4 of 8" »

(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:

Continue reading "Wrongful Death Of Woman In Sacramento Convalescent Home, Part 3 of 8" »

Many people suffer from some type of abuse through out their lives, whether it be verbal, physical, or sexual. The elderly are a huge group that suffer from abuse, mainly negligence. Here at the Law Offices Of Moseley Collins, we have dealt with numerous cases involving elder abuse.

I have here an accumulation of facts and statistics on elder abuse.

You can also locate these at safestate.org

"Every year an estimated 2.1 million older Americans are victims of physical, psychological, or other forms of abuse and neglect. For every case of elder abuse and neglect reported to authorities, experts estimate that there may be as many as 5 cases not reported. Research suggests elders who have been abused tend to die earlier than those who are not abused, even in the absence of chronic conditions or life threatening disease." Elder Abuse and Neglect: In Search of Solutions

American's over the age of 50 years represent 30% of our population, 12% of our murder victims and 7% of other serious and violent crime victims.

90% of elder abuse and neglect incidents are by known perpetrators, usually family members, 2/3rds are adult children or spouses. 42% of murder victims over 60 were killed by their own offspring. Spouses were the perpetrators in 24% of family murders of persons over 60.

The eldest of our seniors, 80 years and older, are abused and neglected at 2 - 3 times the proportion of all other senior citizens. -- Bureau of Justice Statistics

In most states "mandatory reporters of elder abuse" are required by law to report suspected cases of elder maltreatment. Nearly 70 percent of Adult Protective Service agencies' annual caseloads involve elder abuse.

21.6% of all domestic elder abuse reports came from physicians or health care professionals 9.4% from service providers, 14.9% are family members. They types of abuses and their percentage of frequency are below.

Neglect 58.5%
Physical abuse 15.7%
Financial exploitation 12.3%
Emotional abuse 7.3%
Sexual abuse .04%
All other types 5.1%
Unknown .06%

As a Sacramento personal injury lawyer, Moseley Collins specializes in serious personal injury cases, including elder abuse. We believe that if you or a loved one have been seriously injured, you should retain an experienced personal injury attorney. Click here or call us at (916) 444-4444. We are ready to get started on winning your case. There is never a fee until we win!

In our Sacramento area, owners and two employees of a Citrus Heights care facility are being arrested and tried for the deaths of three of their elderly residents. It was around this time last year that a fire tore through the halls of the facility. All employees and some residents were able to escape the fire, with the exception of three.

Reports from the Sacramento Metropolitan Fire District are showing the reason why these two were not able to escape the fire was because of unlawful restraints that held them in their rooms. One woman, Doris Bower, was not able to leave because railing on the side of her bed prevented her from getting out. Another woman, Virginia Esler, was trapped in her room by a locked wheelchair. The third woman, Marjorie Leroux, had a bed that was completely surrounded by railing. People were able to get Marjorie out of the fire eventually, but she died several days later from trauma associated with the fire.

An investigation was carried out that showed the restraints in place during the fire were against safety regulations. Through the investigation, other violations were also revealed. The fire was discovered to be a result of a resident who ignited a stuffed chair in her bedroom with a cigarette. There are regulations within residential care facilities that do not allow for any patient with dementia to be allowed to smoke, except in designated areas. One of the owners found the fire that night and seemingly put it out. Unfortunately, the fire began to smolder again and began the disastrous fire that eventually ended in the death of three.

The owners and two staff are being charged with involuntary manslaughter for these deaths.

Violations in care facilities such as this and elder abuse are a huge and growing concern in the United States. Reports from the United States General Accounting Office showed that in 1998, one-third of nursing homes in California were cited for serious and/or life-threatening problems within their facility. To magnify this problem, please take a look at the following statistics for counties within California:

In 1999, the U.S. Congress Committee on Government Reform (USCCGR) reported that of the 439 nursing homes in Los Angeles County, only one was in total compliance with federal standards of care.

In 2000, the USCCGR reported that only 18 of the 288 nursing homes in the San Francisco Bay Area were in full or substantial compliance with federal standards of care.

In 2001, the USCCGR reported that all 27 of the nursing homes in the 22nd Congressional District (Santa Barbara) violated federal health and safety standards.

No care facility should hold such low standards. If you have a loved one who has been abused as the result of a care facility’s negligence and disregard, please call me at the Law Offices of Moseley Collins.

Web Resources:

Two owners, two staffers arrested in fatal Citrus Heights care home fire, The Sacramento Bee

Elder Abuse In Nursing Homes, The Office of the Attorney General; Bureau of Medi-Cal Fraud and Elder Abuse